Bullet Proofing Your Marketing

Bullet Proofing Your Marketing - PROFESSIONAL ADVERTISING...

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PROFESSIONAL ADVERTISING Bullet Proofing your Marketing Programs Roger W. Calton Calton Law Group, P.C. 31371 Rancho Viejo Road, Suite 104 San Juan Capistrano, CA 92675 (949) 495-3350 (949) 495-9187 (FAX)
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2 PROFESSIONAL ADVERTISING Bullet Proofing your Marketing Programs I. CHANGING TIMES Only a few years ago, advertising by professionals was considered unprofessional and illegal in most states. Now we have hospitals running full-page advertisements, doctors who employ marketing directors, and plastic surgeons displaying their work in full color. We're often not sure whether the law follows or leads the will of the people, but here they seem to have tracked closely together. While there is still some resentment and reluctance in the profession, the general population accepts advertising readily. As our society becomes more mobile, the tradition of personal recommendations or "word- of-mouth" referrals declines. Today people rely upon the media in most of their buying decisions. II. A BRIEF HISTORY OF PROFESSIONAL ADVERTISING A. Until the mid 1970s most states prohibited advertising by doctors and lawyers, with very limited exceptions. B. The principle of Free Speech 1. The First Amendment - Protects freedom of speech. Includes the right to speak freely as well as the right to have your message heard. 2. The Fourteenth Amendment a. Provides for due process of law. b. Guarantees equal protection - generally protecting identifiable groups of people from being treated differently than other groups of people. 3. State Constitution Protections – most State Constitutions also protect freedom of speech.
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3 C. The Line of Cases 1. Valentine v. Chrestenson , 315 U.S. 52 (1942) Held that "Commercial Speech" (as opposed to private or political speech) is entitled to protection under the First Amendment - at least on a limited basis. 2. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel, Inc., 425 U.S. 748 (1976) The Virginia Citizens Consumer Council sought to publish a list of drugs and their prices at various local pharmacies. The Board of Pharmacy prohibited the publication. The Court held that the commercial speech doctrine applies to the professions and that the prohibition was unconstitutional. 3. Bates v. State Bar of Arizona , 433 U.S. 350 (1977) Held that lawyers may advertise the price for routine legal fees. More importantly this case defines the State's interest as being limited to the protection of the public from advertising which is fraudulent, misleading or deceptive. 4. Ohralik v. Ohio Bar Association , 436 U.S. 412 (1978) In Re Primus , 436 U.S. 412 (1978) Describes the difference between "solicitation" and "advertising." "Solicitation" necessarily involves direct, in-person, uninvited communication and can be prohibited by the State. 5.
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This note was uploaded on 01/03/2012 for the course CBPM 81140 taught by Professor Johnson during the Fall '11 term at Palmer Chiropractic.

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Bullet Proofing Your Marketing - PROFESSIONAL ADVERTISING...

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