The great writer H.G. Wells is quoted as saying “Advertising is legalized lying.” That might have been true in the early 20th Century when Mr. Wells was alive, but today that sentiment can get you into a heap of legal and financial headaches.

In a prior article we referenced the involvement of the Federal Trade Commission in regulating medical/doctor advertising. To most photographers and artists, the attitude is: “So what? This appears not to affect my business.” Well we hate to be the bearers of potentially bad news, but we do feel obligated to try and warn people before they end up in very hot waters.

The Federal Government looking into and being more involved in the field of advertising, including the use of the images of models who are not patients and not identified as “models” or “actor portrayals” in ads. Not just big time pharmaceutical ads you shoot for or provide photos for, but even just local ads for real estate firms or law office testimonials and other such. Various claims made in writing or by use of photography, before and after treatment photos, and other ads that are produced for national and local markets have stirred the interest of state licensing boards, the FTC, States Attorney Generals and the FDA. These are sleeping lions and lionesses you don’t want to poke at and awaken.

The Food and Drug Administration (FDA) has an ever-expanding role regarding the advertising and promotion of prescription medicines.  Being aware of their guidelines, while may or may not dovetail with any FTC regulations or state laws, but they do offer photographers and artists a template of issues to be aware of, even if these are specific to pharmaceutical ads. They show the mindset of what Federal and local agencies are looking at to protect consumers.

Below are a number of ways – a non-comprehensive list follows – in which a pharmaceutical ad may violate the law. For example, the ad could:

  • State or imply that the drug can treat a condition when the FDA has not approved the drug for such use
  • Make claims that are not supported by adequate evidence
  • Misrepresent data from studies and/or overstate the drug’s benefits
  • Suggest that the drug can be used in patients with specific characteristics when the drug hasn’t been shown to work or to be safe in such patients
  • Appear to be a “reminder ad”but make a claim about the drug
  • Appear to be a “reminder ad”but is about a drug that has certain very serious risks (one with a boxed warning) — reminder ads are not allowed for such drugs
  • Appear to be a “help-seeking”or disease awareness ad but recommend or suggest a particular prescription drug.
  • Appear to employ a former patient who has benefited from some product or procedure without identifying that person as an “actual patient” or “actor portrayal”

For the creative these rules seem irrelevant to their assignment to create or license an image for advertising, promotion, branding or marketing. For models, their releases ought clearly to state exactly which medication(s) and/or procedures their image, name, voice and/or persona can be associated with, in what media and for a clearly defined time period. Creatives and models are not experts in administrative law…. nor are most attorneys for that matter. So what’s to know?

An ad that does not conform with the above guidelines and happens to attract FDA attention, usually results in dealings with the drug manufacturer and ad agency and/or enforcement agency. Akin to FTC cases,  absent information that a creative, model or actor knowingly participated in the creation of an ad which that person knew or should have known, to be illegal, it is unlikely that the FDA will come looking for the creative, model or non-celebrity endorser for the purposes of filing a claim against them.  Will the FDA in the enforcement process likely contact everyone who created or participated in the ad? Sure.  Some of their best witnesses will likely be those who worked on the ad but who were not regular, W2, employees of the  drug company or ad agency and thus are more likely to give damning evidence against a client or ad agency without the risk of losing their job as an employee might fear. So, while you may not be a guilty party, you will still get swept up in the issue.

Many lawyers who do not actually litigate cases naively say things like “They can’t sue you (photographer) for (that) so don’t worry”. Often that is the case. It is also accurate to say that “99.99% of the time you can be subpoenaed to testify in a case pending in court or an administrative agency even though you are merely a witness and not a party”.  Being a witness in a case like these is no “party”. You may need to retain a lawyer even though you are “just a witness” and the cost money and in lost time may be very substantial.

Apply the “issues” above to an ad you might photograph of a “real person” giving a testimonial for a personal injury law firm’s local billboard ad. If they have a client they’re using and that person bows out or just doesn’t show up, don’t think you can just grab anyone to replace them because you have a deadline looming and “Who’ll know the difference?”. That’s not a good or safe response these days. If one of the subject’s friends (or more likely a frenemy) sees it and reports it, ding, ding, ding, you’re now on an agency’s radar and believe us you do not want to be there. And this time you may not just be a bystander giving information, you may be the one with the big target on your back.

A creator or participant in testimonial ads and marketing, especially for prescription drugs, wants specific language included in the invoices, contracts etc. with clients and ad agencies. Stating that the creator has no editorial control over the final ad – especially anything written or spoken – nor when, where or how the ad is presented.  The client needs to hold the creator/model harmless and indemnify them from any claims from the FTC, FDA or similar agencies which may be made based on (typically) false or deceptive advertising.

The time honored and formerly accurate phrase that, “All model release issues are governed by state law” is in 2020, no longer accurate.  The increased use of paid and unpaid endorsers in the ever expanding world of social media, the Federal Government’s increasing efforts to control/oversee the prescription drug industry and the FTC’s growing interest in making deceptive advertising cases, has added new responsibilities to clients, ad agencies, model agencies and photographers to customize their releases for certain types of ads.  Add the increasing interest the Federal agencies are taking, with the almost daily lawsuits brought by State Attorneys General against big pharma and other consumer companies related in whole or in part to deceptive marketing practices and the need/benefit of adding a tad more protection to your paperwork to keep these folks as far away from you as possible, is obvious. The mere use of a model’s face in a medical website without any additional descriptive information ie actor portrayal, may be considered false advertising or deceptive in that it makes the model appear to be a patient of the medical facility.

Providing this information to your client and warning them of potential problems with these agencies actually adds value to your services and serves as great self-promotion for future assignments.