Advertising

(1) Policy Statement. Lack of sophistication on the part of many members of the public concerning professional massage services, the importance of the interests affected by the choice of a massage therapist or a massage establishment, and the foreseeable consequences of unrestricted advertising by massage therapists or on behalf of massage establishments, which is recognized to pose special possibilities for deception, require that special care be taken to avoid misleading the public. Massage therapists and massage establishments must be mindful that the benefits of advertising depend upon its reliability and accuracy. Since advertising is calculated and not spontaneous, reasonable regulation designed to foster compliance with appropriate standards serves the public interest without impeding the flow of useful, meaningful, and relevant information to the public. Digital advertising for unlicensed therapist and unlicensed establishments can be deemed acceptable provided the criteria above is met along with a visible disclaimer that licensure is pending. Under no circumstances shall massage therapists or massage establishments advertise for any service that is outside their respective scope of practice. (2) Definitions - As used in this rule, the following terms shall have the meanings ascribed to them: (a) Advertisement - Informational communication to the public in any manner designed to attract public attention to the practice of a Tennessee licensed massage therapist or massage establishment. (b) Material Fact - Any fact which a reasonable and prudent person would need to know or rely upon in making an informed decision concerning the choice of practitioners or establishments to serve his or her particular needs. (c) Bait and Switch Advertising - An alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell or provide. Its purpose is to switch consumers from buying or receiving the advertised merchandise or services, in order to sell or provide something else, usually at a higher fee or on a basis more advantageous to the advertiser. (d) Discounted Fee - A fee offered or charged by a person, organization or establishment for any massage therapy product or service that is less than the fee the person or organization usually offers or charges for the product or service. Products or services expressly offered free of charge shall not be deemed to be offered at a “discounted fee.” (3) Advertising Fees and Services (a) Fixed Fees. Fixed fees may be advertised for any service. It is presumed, unless otherwise stated in the advertisement, that a fixed fee for a service shall include the cost of all professionally recognized components within generally accepted standards that are required to complete the service. GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS (b) Ranges of Fees. A range of fees may be advertised for services. However, the advertisement must disclose the factors used in determining the actual fee, necessary to prevent deception of the public. (c) Discount Fees. Discount fees may be advertised if: 1. The discount fee is in fact lower than the licensee’s customary or usual fee charged for the service; and 2. The licensee provides the same quality and components of service and material at the discounted fee that are normally provided at the regular nondiscounted fee for that service. (d) Related Services and Additional Fees. Related services which may be required in conjunction with the advertised service for which additional fees will be charged must be identified as such in any advertisement. (e) Time Period of Advertised Fees. Advertised fees shall be honored for those seeking the advertised services during the entire time period stated in the advertisement whether or not the services are actually rendered or completed within that time. If no time period is stated in the advertisement of fees, the advertised fee shall be honored for thirty (30) days from the last date of publication or until the next scheduled publication, whichever is later, whether or not the services are actually rendered or completed within that time. (4) Advertising Content. The following acts or omissions in the context of advertisement by any licensee shall constitute unethical and unprofessional conduct, and subject the licensee to disciplinary action pursuant to T.C.A. § 63-18-108. (a) Claims that the services performed, personnel employed, materials or office equipment used are professionally superior to that which is ordinarily performed, employed or used, or that convey the message that one licensee is better than another when superiority of services, personnel, materials or equipment cannot be substantiated. (b) The misleading use of an unearned or non-health degree in any advertisement. (c) Promotion of a professional service which the licensee knows or should know is beyond the licensee’s ability to perform. (d) Techniques of communication which intimidate, exert undue pressure or undue influence over a prospective client. (e) Any appeals to an individual’s anxiety in an excessive or unfair manner. (f) The use of any personal testimonial attesting to a quality or competence of a service or treatment offered by a licensee that is not reasonably verifiable. (g) Utilization of any statistical data or other information based on past performances for predication of future services, which creates an unjustified expectation about results that the licensee can achieve. (h) The communication of personal identifiable facts, data, or information about a client without first obtaining client consent. (i) Any misrepresentation of a material fact. GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS (j) The knowing suppression, omission or concealment of any material fact or law without which the advertisement would be deceptive or misleading. (k) Statements concerning the benefits or other attributes of procedures or products that involve significant risks without including: 1. A realistic assessment of the safety and efficiency of those procedures or products; and 2. The availability of alternatives; and 3. Where necessary to avoid deception, descriptions or assessment of the benefits or other attributes of those alternatives. (l) Any communication which creates an unjustified expectation concerning the potential results of any treatment. (m) Failure to comply with the rules governing advertisement of fees and services, and advertising records. (n) The use of “bait and switch” advertisements. Where the circumstances indicate “bait and switch” advertising, the Board may require the licensee to furnish data or other evidence pertaining to those sales at the advertised fee as well as other sales. (o) Misrepresentation of a licensee’s credentials, training, experience or ability. (p) Failure to include the corporation, partnership or individual licensee’s name in any advertisement. Any corporation, partnership or association which advertises by use of a trade name or otherwise fails to list all licensees practicing at a particular location shall: 1. Upon request provide a list of all licensees at that location; and 2. Maintain and conspicuously display at the licensee’s office, a directory listing all licensees practicing at that location. (q) Failure to disclose the fact of giving compensation or anything of value to representative of the press, radio, television or other communicative medium in anticipation of or in return for any advertisement (for example, newspaper article) unless the nature, format or medium of such advertisement make the fact of compensation apparent. (r) The use of the name of any licensee formerly practicing at or associated with any advertised location or on office signs or buildings after thirty (30) days from the departure of that licensee. (This rule shall not apply in the case of a retired or deceased former associate who practiced in association with one or more of the present occupants if the status of the former associate is disclosed in any advertisement or sign.) (s) Stating or implying that a certain licensee provides all services when any such services are performed by another licensee. GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS (t) Directly or indirectly offering, giving, receiving or agreeing to receive any fee or other consideration to or from a third party for the referral of a client in connection with the performance of professional services. (5) Advertising Records and Responsibility (a) Each licensee who is a principal partner, or officer of a firm or entity identified in any advertisement, is jointly and severally responsible for the form and content of any advertisement. This provision shall also include any licensed professional employees acting as an agent of such entity. (b) Any and all advertisement are presumed to have been approved by the licensee names therein. (c) A recording of every advertisement communicated by electronic media, and a copy of every advertisement communicated by print media, and a copy of any other form of advertisement shall be retained by the licensee for a period of two (2) years from the last date of broadcast or publication and be made available for review upon request by the Board or its authorized representative. (d) At the time any type of advertisement is placed, the licensee must possess and reply upon information which, when produced, would substantiate the truthfulness of any assertion, omission or representation of material fact set forth in the advertisement or public communication.