The role of health marcom compliance continues to grow in importance in 2019.
The American Marketing Association defines Marcom (or Marketing Communications) as follows:
Marketing communications, or “marcom,” is an all-encompassing term, as it covers marketing practices and tactics including advertising, branding, graphic design, promotion, publicity, public relations and more.
Health Marketing Lawsuits. Lawsuits involving the offering of health and wellness goods and services continue unabated. Some areas of concern to health marcom professionals include:
- Copyright Infringement. Health marketers often neglect to conduct proper clearance of images, articles, or copy that is owned by third-parties. The result is often a strict liability situation. The damage? Even non-willful infringers can be liable for statutory damages of between $750 and $30,000 per infringing copy.
- Trademark Oppositions. Trademark Oppositions are contested proceedings before the U.S. Trademark Trial and Appeal Board. A trademark opposition is typically filed because an applicant did not conduct a proper trademark search and clearance prior to launching its brand or advertising campaign. A contested trademark opposition proceeding can cost upwards of $80,000 or more in U.S. attorney’s fees.
- Trademark Infringement. Unlike trademark oppositions that deal with issues of registration only, actions for trademark infringement are adjudicated before the U.S. federal and state courts. If a defendant if found liable for infringement, it can be liable for treble damages in exceptional cases as well as attorney’s fees.
- HIPAA Marketing violations. The HIPAA Marketing Privacy Rule addresses the use and disclosure of protected health information for marketing purposes. It does so by defining what is “marketing” under the Rule, as well as requiring individual authorization for all uses or disclosures of PHI for marketing purposes. There are certain exceptions. The privacy rule also prohibits covered healthcare providers from selling protected health information to third parties for the third party’s own marketing activities, without authorization.
- Stark Law violations. The Stark Law prohibits physicians from making referrals for certain designated health services (DHS) payable by Medicare to an entity to which she or a family member has a financial relationship. There are numerous DHS examples that apply to this law, including clinical lab services, physical therapy, radiology, and home health services. Penalties include civil monetary fines of up to $15,000 per service as well as higher penalties for circumvention schemes. In addition, physicians and other entities that are in contravention of the law can forfeit their right to participate in Medicare and Medicaid provider programs.
In 2019 and beyond, health marketers will continue to utilize digital and offline technologies to grow market share. Implementing health marcom compliance training will help to mitigate risks associated with promoting healthcare goods and services.