To clarify rule and remove extraneous language.

 

DEPARTMENT OF HEALTH

Board of Optometry

RULE NO.:RULE TITLE:

64B13-3.009False, Fraudulent, Deceptive and Misleading Advertising Prohibited; Policy; Definitions; Affirmative Disclosure

PURPOSE AND EFFECT: To clarify rule and remove extraneous language.

SUMMARY: To clarify and remove language.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule at its Board meeting, the Board concluded that this rule change will not have any impact on licensees and their businesses or the businesses that employ them. The rule will not increase any fees, business costs, personnel costs, will not decrease profit opportunities, and will not require any specialized knowledge to comply. This change will not increase any direct or indirect regulatory costs. Hence, the Board determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 463.005 FS.

LAW IMPLEMENTED: 456.062, 456.072(1)(a), (m), 463.014, 463.016(1)(f), (g) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Anthony B. Spivey, Executive Director, Board of Optometry, 4052 Bald Cypress Way, Bin # C07, Tallahassee, Florida 32399-3257

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

64B13-3.009 False, Fraudulent, Deceptive and Misleading Advertising Prohibited; Policy; Definitions; Affirmative Disclosure.

(1) It is the policy of the Board of Optometry that advertising by licensed practitioners in this state shall be regulated so as to effectuate the duty of the State of Florida to protect the health, safety, and welfare of its residents, while not abridging any rights guaranteed to practitioners or to the public by the constitutions of the United States and the State of Florida, as construed by the United States Supreme Court and the Florida courts. To that end, the dissemination to the public of information regarding the practice of optometry and where and for whom optometric services may be obtained is authorized so long as such information is in no way fraudulent, false, deceptive or misleading.

(2) A licensed practitioner shall not disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it:

(a) Contains a misrepresentation of facts; or

(b) Has the capacity or tendency to mislead or deceive because in its content or in the context which it is presented makes only a partial disclosure of relevant facts; or

(c) Has the capacity of tendency to create false, or unjustified expectations or beneficial treatment or successful cures; or

(d) Contains false, fraudulent, deceptive, or misleading representations relating to the quality or quantity of the optometric services offered; or

(e) Contains any representations or claims which the licensed practitioner referred to in the advertising fails to perform; or

(f) Contains any other representation, statement, or claim which has the capacity or tendency to mislead or deceive.

(3) When determining what constitutes fraudulent, false, deceptive, or misleading advertisement, the Board shall be guided by applicable federal and state status, rules and court decisions.

(1)(4) As used in the rules of this Board, the terms “advertisement” and “advertising” shall mean any statements, oral or written, disseminated to or before the public or any portion thereof, with the intent of furthering the purpose, either directly or indirectly, or of selling professional services or ophthalmic goods, or offering to perform professional services, or inducing members of the public to enter into any obligation relating to such professional services. The licensed practitioner has the duty to review and proof all advertisements prior to publication, and is fully responsible for the content therein.

(5) A licensed practitioner may practice under practice identification names, trade names, or service names, so long as any dissemination of information, including signs, by the practitioner, to consumers contains the name under which the practitioner is licensed or that of the professional association in which the practitioner practices and so long as the information identifies the practitioner of the professional association as being engaged in the practice of optometry. However, a licensed practitioner may not adopt and publish or cause to be published any practice identification name, trade name, or service name which is, contains, or is intended to serve as an affirmation of the quality or competitive value of the optometric services provided at the identified practice. Any licensed practitioner who is practicing or intends to practice under a practice identification name, trade name or service name must register with the Board of Optometry identifying the specific name as registered under applicable Florida law.

(6) All advertisements which advertise services available at branch office locations shall state the hours that a licensed practitioner is practicing at each location mentioned in the advertisement, or shall advise the reader to secure information as to the availability of the licensed practitioner. Excepted from this requirement are:

(a) White page telephone book listings;

(b) Yellow page telephone book advertising which lists only the name, address(es) and phone number(s) of the licensed practitioner;

(c) Advertising such as business cards, which are distributed by the licensed practitioner personally or at her or his premises; and

(d) Advertising posted at or in the immediate vicinity of the office advertised.

(2)(7) All advertisements must clearly denote with words or proper abbreviation that the practitioner is engaged in the practice of optometry.

(3)(8) Any advertisement for free or discounted services must contain the disclaimer required by Section 456.062, F.S., no less than Times New Roman 6 point font size.

(4) When determining what constitutes fraudulent, false, deceptive, or misleading advertisement, the Board shall be guided by applicable federal and state statutes, rules and court decisions.

Rulemaking Authority 463.005 FS. Law Implemented 456.062, 456.072(1)(a), (m), 463.014, 463.016(1)(f), (g) FS. History–New 11-13-79, Amended 4-17-80, 8-20-81, Formerly 21Q-3.09, Amended 1-8-86, 12-16-86, Formerly 21Q-3.009, 61F8-3.009, 59V-3.009, Amended 1-2-02, 11-13-06, 11-5-07, 4-21-10, 10-13-10,                                   .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Optometry

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Optometry

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 4, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 15, 2016