Brazil’s Federal Council of Medicine publishes new rules on medical advertising

On September 13, 2023, the Brazilian Federal Council of Medicine (CFM) published CFM Resolution No. 2,336/2023 on medical advertising and publicity. The new resolution will repeal CFM Resolution No. 1,974/2011 within 180 days and come into effect from March 2024.

Some of the highlights of the new regulation include the permission to use social media for promoting professional activities, including attracting clients, the possibility of using comparative image banks with before-and-after pictures while preserving the patients’ identities, and the disclosure of the cost of consultations and medical procedures.

Previous updates to the law

Since the 1940s, Decree-law No. 4,113/1942 has regulated the advertising of doctors, healthcare facilities, and similar establishments, including penalties for those who fail to comply with these legal provisions. However, in recent years, the CFM has issued rules to guide medical advertising and publicity activities, as it became essential to review and update the current regulations to keep pace with media developments.

The CFM has been discussing strategies to update medical advertising and publicity regulations for the past three years. In 2020, between January and March, a Public Consultation process to update CFM Resolution No. 1,974/2011 was held. The CFM then encouraged doctors and medical organizations to submit proposals to change, maintain, or add articles to the rule using an electronic form, receiving over 2,600 contributions.

The CFM’s initial aim in issuing the rule was to raise awareness among health professionals and to ensure caution in the doctor-patient relationship, avoiding abuses in the promise of results, unnecessary exposure of medical acts and breaches of confidentiality in the treatment of patients. Therefore, CFM Resolutions No. 2,126/2015 and No. 2,133/2015 sought to improve and update specific aspects of the rules then effective to adapt to the reality of current medical practice.

Main innovations

Among the CFM’s main objectives is the commitment to modernization, ensuring the perfect ethical performance of medicine and securing doctors the constitutional principles of free enterprise and economic freedom. The main aspects of the rule are:

Social media advertising

Doctors and medical establishments may advertise their work and images (including selfies), audio, and videos on websites, blogs, and social networks such as Facebook, Twitter/X, Instagram, or similar, as long as it does not constitute a sensationalist practice or unfair competition.

Doctors can use their profiles for various purposes, such as training, maintaining, and even expanding their client base, as well as for educational purposes and promoting health and public welfare.

Regarding posts on social networks, it will be possible to re-share posts made by patients if their identity is preserved and to share compliments and feedback on the results of the service or technique applied if this is not systematic or widely recurrent.

Permissions and prohibitions

In general, medical professionals will be allowed to:

• Use photos and videos of their work environment — including photos and videos containing advertisements of devices and technological resources approved by the Brazilian Health Regulatory Agency (Anvisa) — as long as they do not attribute privileged capacity to their respective work instruments;
• Provide information about consultation costs, as well as the means and methods of payment, in addition to advertising discounts and promotional campaigns, with the prohibition of tie-in sales or other practices that could distort the purpose of medicine as a middle activity; and
• Participate in publicity campaigns promoted by healthcare plan providers, insurance companies, and others if they are associated with the services provided and have previously authorized the use of their image.

However, the new resolution expressly prohibits some ways of publicizing medical activity. CFM Resolution No. 1,974/2011 already established some of these prohibitions, such as guaranteeing, promising, and implying good treatment results.

The live streaming of consultations and procedures displaying techniques or methods of approaches is also prohibited, even with the patient’s express authorization. However, the resolution provides an exception for scientific events proven to be aimed at doctors regularly registered with the CRM, under penalty of ethical liability by the organizers.

In addition, doctors holding investments in any pharmaceutical, optical, orthostatics and prosthetics, or medical supplies companies will be prohibited from advertising or disseminating advertising materials in their offices or the healthcare establishments where they operate.

Use of patient images or image banks

The use of patient images or stock images by doctors is now allowed, but only for educational purposes and subject to specific criteria, including:

• Demonstrations of technique and procedure results must be accompanied by an educational text (i.e., therapeutic indications, factors related to outcomes, description of complications and satisfactory, unsatisfactory, immediate, intermediate, and late evolutions, considering the patient’s biotype and age group, as applicable). Identifying the patient and editing, manipulating, or enhancing the images is prohibited. In addition to this educational text, “before and after” demonstrations must show the complications resulting from the respective intervention;
• When using images from the doctor’s own database, medical professionals must obtain authorization from the respective patient and secure their anonymity, even if the patient authorizes the disclosure of their identity. Services provided by external film crews are only permitted during childbirth and if authorized by the woman giving birth and/or her family and with the doctor’s consent.

Medical Affairs Disclosure Commission (Codame)

The Codame is responsible for responding to each state’s Regional Council of Medicine (CRM) on medical advertising and promotion, in addition to other prerogatives, such as:

• Organizing educational campaigns;
• Notifying doctors and technical-medical directors for clarification on potential ethical-medical non-compliance;
• Providing information to the Federal Council’s ombudsman to initiate inquiries; and
• Tracking media publications or receiving advertising materials from third parties and taking the appropriate disciplinary measures.

The CRMs must maintain a Codame with at least three members per their internal regulations.

However, given the new medical advertising and publicity rules, the Federal Council’s Codame will publish a manual to clarify and guide the health sector in these matters. In addition to the guide, the implementation of the new rules by the regulated entities (the CFM and the CRMs) will allow the health sector to keep up to date with the latest technologies and for the industry to plan and organize to adopt the new rules until CFM Resolution 2.336/2023 comes into effect in March 2024.

The CFM was correct to waive certain restrictions previously applied to medical advertising, which had long been outdated and inadequate considering the new reality of technological communications that quickly connect professionals and patients. These measures aim to provide patients with adequate access to relevant information for decision-making when contracting medical services and choosing the professional who best meets their needs, albeit with specific limits and necessary precautions to avoid abusive or misleading practices.

For more information, please contact Mattos Filho’s Life Sciences & Healthcare practice area.

*With the contribution of Thais Cristina de Jesus.