ADVERTISING

As the cost of healthcare becomes an increasing focus of attention, advertising becomes an increasing object of concern. At its best, advertising can provide information to help consumers make informed choices. Conversely, it can also inflate expectations, create demand, manipulate desire, transform wants into perceived needs, and increase the use and cost of healthcare services. In the not too distant past, healthcare was understood as medical care. The activities of physicians were regulated by standards of ethics that eschewed commercialism. Though there has always been an economic aspect (usually a fee) associated with the physician–patient encounter, the revolution in the financing of healthcare delivery is transforming the personal doctor–patient relationship into a socially complex interaction in which physicians are cast among a multitude of providers, and patients are transformed into consumers. The focus on the economics of healthcare underscores the commercial aspects of healthcare delivery both by physicians and other providers. Though physicians and not-for-profit institutions should be responsive to a service ethic, they compete in the same economic arena as for-profit organizations and often behave similarly. Furthermore, in some cases the patients are not the direct consumers; services may be purchased by employers, alliances, the state, or other contracting entities, whose interests may not entirely coincide with those of patients.

Advertising may be judged by the standards of business ethics: truthfulness, nondeceitfulness, nonexploitativeness, and profitability. But healthcare is not strictly a commodity to be sold effectively with profit to the public. The care of health is also a fundamental human endeavor binding the caregiver and the care-seeker in mutually reciprocal ways. Otto E. Guttentag, noting the essential human quality of healthcare, defined medicine as "the care of health of human beings by human beings." Lawrence J. Nelson and colleagues argued in a 1989 article that several key features distinguish caring for the sick from other commercial products: (1) Patients are in a distinctive position of vulnerability and dependency on those providing the services; (2) their own self and destiny—even life—are at stake in the encounter with the provider; and (3) the relationship with the provider may become an important aspect of the healing encounter. All of these elements suggest that there are special obligations incumbent on healthcare providers that go beyond the usual obligations of the seller to the buyer of most commodities.

Traditional prohibitions against advertising attempted to orient professionals to their service obligations by minimizing the commercialization of the encounter (Relman). According to the traditional view, physicians and other professionals should obtain business by developing a reputation for quality service, getting referrals from satisfied patients/clients or from others who know their work, not through any kind of self-promotion.

The major ethical issue in advertising in a market economy is truthfulness. If given adequate information, the consumer should make appropriate choices: what kind of healthcare, where, when, provided by whom, at what cost. A larger question concerns the justice of a market system of choice based on individual self-interest. Proponents view advertising in healthcare as a way to promote competition and thus reduce cost in a highly regulated industry. Opponents criticize advertising for inflating expectations and thus increasing cost. Others suggest that the quality of care has been lowered by making cost rather than quality the focus of allocation decisions (Rodning and Dacso).

The high cost of healthcare in the United States has prompted a search for ways of reducing both the cost of medical services and the percentage of gross national product devoted to healthcare without appreciably lowering quality of care. Advertising is located at the crossroads between cost and quality, between regulated markets with an emphasis on quality and free markets with an emphasis on cost and choice. Regulations that provide standards for training, licensure, specialty certification, and hospital accreditation have resulted in high-quality, but expensive, healthcare. Market solutions, such as encouraging advertising to promote competition, have been seen as a way of reducing cost.

Historical Background

Physicians participate in markets, but traditionally orient themselves by ethical standards that go beyond economic behavior.

THE ORIGINS OF PROFESSIONALISM. Modern professional organizations, defined by their codes of ethics and regulating themselves by ethical principles, take their origin from the Aesculapian societies of the fourth century b.c.e. and in particular from the oath of the Greek physician Hippocrates, which bound its members to ethical standards that did not apply to society as a whole. The Hippocratic oath emphasized the principle of patient benefit, placing the patient at the center of the physician's attention.

By the nineteenth century, when the British Medical Association (BMA) and the American Medical Association (AMA) were founded, the concept of a profession organized around explicit standards of ethics was well established. Prohibitions against advertising were among the first professional standards because treatments based on scientific knowledge distinguished physicians from their main competitors, itinerant nostrum salesmen promoting often dubious products with even more dubious promotional claims. Advertising was expressly prohibited as unprofessional and undignified in virtually all countries in which physicians had established their professional identity through professional associations such as the BMA and AMA, which were organized around a code of ethics (Havighurst; Dyer, 1985). Although the actual license to practice is granted and regulated by the state, the task of enforcing the ethics codes falls to the professional associations or the specialty societies.

THE ANTITRUST CHALLENGE TO THE PROFESSIONS. The professions have always maintained a delicate balance between altruism and economic self-interest (Jonsen, 1990). As the medical profession became more scientifically effective and better organized, it enjoyed regulations (licensure, specialty certification, and accreditation) that guaranteed a virtual monopoly on healthcare delivery. Healthcare became synonymous with medical care. Although the Sherman Antitrust Act of 1890 banned monopolies, the learned professions were considered exempt from the act, which applied only to businesses. Late in the twentieth century, however, the business aspects of medicine began receiving increased attention, and the learned professions exemption ended in 1975 with the U.S. Supreme Court's Goldfarb v. Virginia State Bar decision, in which Virginia lawyers were found liable to charges of price-fixing the fees charged for title searches. The Goldfarb decision heralded a flurry of antitrust activity in the professional arena, most notably the 1975 suit by the Federal Trade Commission (FTC) against the American Medical Association, holding that the AMA was in restraint of trade because its code of ethics prohibited advertising. The AMA Principles of Medical Ethics then in effect (1957 version) said simply, "[A physician] shall not solicit patients," meaning that a physician should not attempt to obtain patients by deception. The 1980 revision eliminated all reference to advertising. Nonetheless, in the 1982 case Federal Trade Commission v. American Medical Association, the U.S. Supreme Court decided in favor of the FTC, barring the AMA from making any reference to advertising and the solicitation of patients, and further prohibiting the AMA from "formulating, adopting and disseminating" any ethical guidelines without first obtaining "permission from and approval of the guidelines by the Federal Trade Commission."

The FTC suit hinged on the questions of cost, advertising, and the mercantile aspects of medical practice. The position of the FTC was that costs were high because doctors had a monopoly on healthcare delivery and could thus maintain artificially high costs for their own profit. If doctors were not prohibited from advertising, it was argued, prices would come down because patients could shop for the best prices. In other words, medicine could better be controlled if it were regulated as a business rather than as a profession (Pertschuk).

The Ethics and Goals of Advertising

Advertising serves two very distinct and divergent objectives:(1) dissemination of information, and (2) product differentiation, which economists define as public perception of differences between two products, even though such differences may not in fact exist.

Dissemination of information provides the facts on which rational consumers can make informed choices. In healthcare, information about the services provided, location, hours of service, fees charged, and languages spoken are examples of services that might be advertised. Arguments in favor of advertising in healthcare are based on an understanding of advertising as dissemination of information.

Advertising also serves to differentiate products, and the methods for doing so are more ethically problematic. How can the claim be made and justified that one product is better than another? The FTC requires that any claims of product differentiation be empirically measurable. For example, in order to claim that a particular mouthwash "kills germs on contact by millions," it is necessary to be able to count killed germs. Usually advertisers attempt to differentiate products not on the basis of objective criteria about the product but by manipulating unconscious wishes and fantasies (such as youth, power, beauty, sex, and affluence), associating the product with images of attractive people in beautiful surroundings. The consumer is left to feel tremendous anxiety about the possible consequences of making the wrong choice of detergent, antiperspirant, or health plan.

Though many physicians have shown reluctance (or an aversion) to advertising their services, healthcare institutions have readily accepted the imperative to advertise in an attempt to create markets, capture market share, and find niches in the marketplace. Notable in this regard is advertising directed at target populations, for example, women, cancer patients, and those needing psychiatric and substance abuse services.

Truth in advertising was the concern when the field of advertising itself attempted to follow the course of professionalism in the early part of the twentieth century. At issue were the values that distinguished professional advertisers from retail-space merchants. The American Marketing Association established university training programs and codes of ethics that promoted the scientific ideal of detachment and statistical analysis. The scientific vision of community and definition of people as consumers replaced the older, empathic, and value-laden world in which a merchant understood what customers (not consumers) wanted and needed based on living in the same community (Christians, Schultze, and Simms; Schultze).

Professional advertising is illustrative because medicine's traditions of professionalism are derived from an era in which physicians participated in the life of the community in which they practiced. Knowledge of the patient as a person, as well as the patient's life history and social situation, has traditionally been deemed essential to quality care. At issue in 2003 for medicine is whether it will be possible to preserve the values of personal care that characterized the ideals of an earlier era.

The Commodification and Commercialization of Medicine and Medical Technology

Some aspects of healthcare are unquestionably commercial. The pills that only a doctor can prescribe are things, and a price must be attached to their acquisition. Hospital over-head becomes part of healthcare costs. Physicians' services (either for procedures or for time spent with a patient) involve a commercial aspect, though they are not just commercial. The locus of ethical decision-making shifts as the mechanism for financing shifts. Whereas physicians once made decisions on behalf of patients or with patients (according to principles of beneficence or autonomy), decisions are being made by corporations on behalf of populations or in the interest of reducing costs to populations. As this happens marketing of goods and services becomes an investment opportunity, not necessarily in the interest of conserving resources, but in the interest of creating capital for investors.

Medicine and medical technologies are increasingly considered in economic terms as commodities. It is fashionable to think of healthcare as an "industry," and as such the activities of the players—doctors and patients, providers and consumers, hospitals and healthcare organizations, equipment manufacturers and pharmaceutical suppliers—are seen in terms of market value rather than values deriving from a personal healing encounter. Value becomes a matter of money rather than a matter of conscience. It is the job of a market economy to distribute goods and services, bringing together consumers and products. Markets may be trusted to be free (laissez-faire) to the extent they do not violate their own frame of reference. Markets must be valued and controlled on their own terms, such as in the admonition, caveat emptor (let the buyer beware). But when vast public resources are involved, public oversight is also required. Deceptive or coercive marketing practices cannot be tolerated and require regulatory restraints on market freedoms.

DIRECT-TO-CONSUMER MARKETING. The growing trend of direct-to-consumer marketing needs to be evaluated in terms of the integrity of the information provided and the nature of the appeals made. Informed consumers make good partners in the healing relationships. Advertisements whose message is "Ask your doctor if this pill is right for you" provide little or no information about the product being promoted. Hair loss, impotence (erectile dysfunction), unhappiness, and sleeplessness are all subjects to be discussed with physicians and for which pharmacologic remedies may be expected. Once the expectation is created, it may be harder for the physician to assess risks (such as addiction liability) or side effects versus benefits, especially if a drug company has already courted the physician with gifts ranging from pens and notepads (bearing the name of a drug) to dinners (where "information" about products is offered) to vacations in expensive resorts.

The traditional way of mediating such claims is through scientific research, published in peer-reviewed journals. Consumers have access via the Internet to all sorts of information that does not receive such academic scrutiny. In the United States, federal regulatory agencies, such as the Food and Drug Administration (FDA) and the FTC, are charged with evaluating the research on which such claims are made. Yet much of the research is performed or funded by product manufacturers, and results that are unfavorable to the product may be suppressed, resulting in a publication bias in which only positive results are published and leading to a false (unscientific, but commercially advantageous) impression of the efficacy of a particular product (Otto et al.). Expensive high-technology screening tests (such as computed tomography scans for heart disease and cancer) are similarly promoted as educational information directly to consumers even though these tests' lack of specificity (resulting in false positives and negatives) causes physicians to question their value (Lee and Brennan). The ethical standard for judging such advertisements would be the truthfulness of the claims made. But presenting such appeals as informational when they are in fact promotional is a manipulation of demand, especially when the research on which such claims are made is not presented or, even worse, when it is skewed (Wolfe).

Several dramatic examples bring into mind the ethical constraints that might be necessary on advertising designed to create markets. Cosmetic surgery to improve a person's subjective sense of one's own beauty, for example, is medical in a way that is different from reconstructive surgery to repair a face damaged by an accident, although both involve similar skills and may be performed by the same plastic surgeon. Similarly (in an economic sense) assisted reproductive technologies, such as in vitro fertilization, may like other medical treatments relieve the distress of a childless couple, although the availability of such services is based more on the ability to pay than on need. The assisted reproduction industry commodifies the product, a human pregnancy, in ways that are more ambiguous ethically than they are commercially (Macklin and White). Technologies such as assisted reproduction along with the emerging genetic technologies, as well as more established technologies such as safe abortion, intensive care, and organ transplantation, help one to imagine limits on commercialization, advertising, and marketing (Dyer, 1997). As Allen Verhey noted in a 1997 article, "There are some boundaries and limits to the sphere of the marketplace. We do not want a market in which body parts are profitable; we prohibit the sale of organs, even those of the dead. We do not want babies sold at auction. Some things are not to be commodified and commercialized"(p. 135).

Conclusion

It could be debated whether advertising that goes beyond dissemination of information is ever ethical, though it is an accepted feature of market economies. The ethical issue for advertising is whether advertising is truthful and whether there can be objectively measurable standards for judging the truthfulness of advertising claims. A more problematic concern is the way in which advertising plays upon people's unconscious wishes and fantasies: sex, greed, and the quest for power, status, and perfection. The scientific basis for advertising rests on the ability to identify and manipulate such longings and fears. When one speaks of "the market" or "market forces" or "demand," one is generally talking about human wants and wishes.

Key questions facing the ethics of advertising in healthcare include:

• What standards or regulations should be in place concerning the placement of advertisements?
• Is any appeal legitimate so long as it does not mislead, make false claims, or actually harm?
• Is the negative portrayal of women in, for example, the promotion of unhealthful products such as tobacco or alcohol so morally offensive as to persuade the government to extend the scope of regulation of what is permissible in advertising, such as limiting advertising to dissemination of information?
• Is the effectiveness of the psychology of persuasion sufficient to justify advertisements, or can some higher principle be brought to bear?

Perhaps advertising itself should be subjected to the first principle of Hippocratic ethics, primum non nocere (first do no harm). Or to echo the caveat of President Dwight D. Eisenhower about the "military-industrial complex," beware the medical-industrial complex. Advertising that promotes consumer choice by providing information is consistent with the ethical ideal to promote patient autonomy. Advertising that deceptively promotes the interest of the provider at the expense of the consumer could not be ethically condoned, especially when the consumer is a patient.

allen r. dyer (1995)

revised by author

SEE ALSO: Harmful Substances, Legal Control of; Lifestyles and Public Health; Medicine, Profession of; Pharmaceutical Industry; Professional-Patient Relationship; Profit and Commercialism

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