Section 0540-01-.20 - ADVERTISING(1) Policy Statement. The lack of sophistication on the part of many of the public concerning electrology services, the importance of the interests affected by the choice of an electrologist or electrology instructor and the foreseeable consequences of unrestricted advertising by electrologists which is recognized to pose special possibilities for deception require that special care be taken by electrologists to avoid misleading the public. The electrologist must be mindful that the benefits of advertising depend upon its reliability and accuracy. Since advertising by an electrologist is calculated and not spontaneous, reasonable regulations designed to foster compliance with appropriate standards serve the public interest without impeding the flow of useful, meaningful information to the public.(2) Advertising Fees and Services (a) 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 professional, recognized components within generally accepted standards that are required to complete the service.(b) Range of Fees. A range of fees may be advertised for services and the advertisement must disclose the factors used in determining the actual fee, necessary to prevent deception of the public.(c) 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, and2. The licensee provides the same quality and components of service and material at the discounted fee that are normally provided at the regular non-discounted fee for that service.(d) Related Services and Additional Fees. Related services which may be required in conjunction with the advertised services for which additional fees will be charged must be identified as such in any advertisement.(e) Time Period of Advertised Fees 1. 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.2. 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.(3) 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. § 63-26-123(4): (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 credential in any advertisement.(c) Promotion of professional services which the licensee knows or should know are beyond the licensee's ability to perform.(d) Techniques of communication which intimidate or 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 of competency 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 prediction 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 material fact.(j) The knowing suppression, omission or concealment of any material facts or law without which the advertisement would be deceptive or misleading.(k) Statements concerning the benefits or other attributes of electrology procedures or products that involve significant risks without including: 1. A realistic assessment of the safety and efficiency of those procedures or products; and2. The availability of alternatives; and3. 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 electrology treatment.(m) Failure to comply with the rules governing advertisement of electrology fees and services. or 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 individual licensee's name, address, and telephone number in any advertisement.(q) Failure to disclose the fact of giving compensation or anything of value to a 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) After thirty (30) days, the use of the name of any licensee formerly practicing at or associated with any advertised location or on office signs or buildings. (This rule shall not apply in the case of a retired or deceased former associate who practiced electrology 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.(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.(4) 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 firm or entity.(b) Any and all advertisements are presumed to have been approved by the licensee named 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 years from the last date of broadcast or publication and be made available for review upon request by the Board or its designee.(d) At the time any type of advertisement is placed, the licensee must possess and rely 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.(5) Advertisements for electrology services to be rendered by a limited license electrologist must clearly indicate that the electrology services are being rendered by a limited license electrologist under the direct supervision of a board certified or board eligible dermatologist.(6) Use of Titles - Any person who possesses a valid, current and active license issued by the Board that has not been suspended or revoked has the right to use the title "electrologist" and to practice electrology, as defined in T.C.A. §§ 63-26-102. Any person licensed by the Board to whom this rule applies must use the title authorized by this rule in every "advertisement" [as that term is defined in rule 0540-01-.01(1) ] he or she publishes or the failure to do so will constitute an omission of a material fact which makes the advertisement misleading and deceptive and subjects the electrologist to disciplinary action pursuant to T.C.A. § 63-26-123.(7) Severability. It is hereby declared that the sections, clauses, sentences and part of these rules are severable, are not matters of mutual essential inducement, and any of them shall be rescinded if these rules would otherwise be unconstitutional or ineffective. If any one or more sections, clauses, sentences or parts shall for any reason be questioned in court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the applicability or invalidity of any section, clause, sentence, or part in any one or more instance shall not be taken to affect or prejudice in any way its applicability or validity in any other instance.Tenn. Comp. R. & Regs. 0540-01-.20
Original rule filed December 28, 1995; effective March 12, 1996. Amendment filed April 29, 2008; effective July 13, 2008. Amendment filed December 13, 2012; effective May 31, 2013. However a petition for a rulemaking hearing was filed on January 7, 2013.Authority: T.C.A. §§ 4-5-202, 4-5-203, 4-5-204, 63-1-116, 63-1-145, 63-26-108, 63-26-111, 63-26-119, and 63-26-123.