Hello. I am attorney Lee Young-kyung from Cheongchul Law Firm.
We will discuss the laws applicable to medical advertising that medical institutions, healthcare professionals, and businesses that conduct medical advertising must be aware of.
[Question]
What are the laws applicable to medical advertising and what do they entail?
[Answer]
Both the Medical Law and the Act on the Fairness of Advertising and Display (Display Advertising Act) can apply to medical advertising, and there may be penalties under each law.
First, let's look at the Medical Law, which directly defines aspects related to medical advertising.
Article 56 of the Medical Law stipulates the concept of medical advertising and the entities responsible for advertising, as well as the media involved. It prohibits advertising through broadcasting, as defined in Article 2, Clause 1 of the Broadcasting Act, and if using media such as periodicals or social media with an average daily user count exceeding 100,000 over the previous three months, prior approval from a voluntary review organization for medical advertising is required (Article 57, Clause 1 of the Medical Law).
Article 56 (Prohibition of Medical Advertising, etc.) ① Anyone who is not a medical institution operator, head of a medical institution, or healthcare professional (hereinafter referred to as "healthcare professionals") shall not engage in acts that represent or inform consumers about medical practices, medical institutions, or healthcare professionals through newspapers, magazines, voice, sound, video, internet, print media, signage, or other means. This is referred to as "medical advertising". ② Healthcare professionals shall not engage in any medical advertising that falls under the following categories. 1. Advertising of new medical technologies that have not been assessed under Article 53 2. Advertising that may mislead consumers regarding treatment effects based on treatment experiences of patients 3. Advertising that presents false information 4. Advertising that compares the functions or treatment methods of other healthcare professionals 5. Advertising that defames other healthcare professionals 6. Advertising that exposes direct treatment procedures such as surgical scenes 7. Advertising that omits important information regarding serious side effects related to the functions or treatment methods of healthcare professionals 8. Advertising that exaggerates objective facts 9. Advertising that refers to qualifications or titles not legally based 10. Advertising presented in the form of articles or expert opinions through newspapers, broadcasts, magazines, etc. 11. Advertising that has not been reviewed in accordance with Article 57 or differs from the reviewed content 12. Domestic advertising to attract foreign patients under Article 27, Clause 3 13. Advertising that discounts or exempts non-covered medical fees in a manner that deceives consumers or could mislead them as per Article 45 14. Advertising that utilizes various certificates and awards or claims to have received endorsements, guarantees, or recommendations, except in the following cases: a. Advertising marked with medical institution certification according to Article 58 b. Advertising marked with certifications or guarantees from central administrative agencies or local government agencies as per the Government Organization Act c. Advertising marked with certifications or guarantees received according to other laws d. Advertising marked with certification received from international evaluation organizations cooperating with the World Health Organization as defined by presidential decree. 15. Any other advertising methods or content that may harm the public's health and fair competition in the medical field or that poses a risk of harm to consumers, as determined by presidential decree. ③ Medical advertising shall not be conducted in the following ways. 1. Broadcasting as per Article 2, Clause 1 of the Broadcasting Act 2. In other cases where restriction is necessary to maintain the public's health and fair competition in the medical field, as defined by presidential decree ④ Specific contents regarding prohibited medical advertising as per Clause 2 and other necessary matters shall be determined by presidential decree. ⑤ The Minister of Health and Welfare, mayors, county governors, and district heads must promptly notify the Fair Trade Commission of any healthcare professional who violates Clause 2, items 2 through 5, and items 7 through 9, in preparation for taking action as per Articles 63, 64, and 67. <Newly established on May 29, 2016, March 27, 2018> Article 57 (Review of Medical Advertising) ① Healthcare professionals intending to conduct medical advertising using any of the media specified below must first obtain a review to determine whether their medical advertising violates the provisions outlined in Clauses 1 to 3 of Article 56. 1. Newspapers and internet newspapers as defined in Article 2 of the Act on the Promotion of Newspapers, or periodicals as defined in Article 2 of the Act on the Promotion of Periodicals 2. Outdoor advertising media as specified in Article 2, Clause 1 of the Act on the Management and Promotion of Outdoor Advertising, including banners, posters, brochures, and advertisements displayed in transportation facilities and vehicles 3. Electronic signboards 4. Internet media as defined by presidential decree [including applications (Applications) used on mobile devices] 5. Other advertising media as determined by presidential decree, considering the nature and influence of the media ② Institutions or organizations specified below may perform medical advertising review work after reporting to the Minister of Health and Welfare, having established organizations for self-review as defined by presidential decree. 1. Medical associations, dental associations, traditional medicine associations as per Article 28, Clause 1 2. Consumer organizations registered under Article 29 of the Basic Consumer Act that meet the criteria specified by presidential decree ③ Notwithstanding Clause 1, healthcare professionals may avoid review by an organization or group reported to the Minister of Health and Welfare, which consists solely of the following items. 1. Names, locations, and phone numbers of medical institutions 2. Medical fields established and operated by the medical institution (referring to the medical fields as per Article 43, Clause 5) 3. Names, genders, and types of licenses held by healthcare professionals affiliated with the medical institution 4. Other matters specified by presidential decree ④ The self-review organization must mutually agree on the criteria applicable for review when conducting the review under Clause 1. ⑤ Those wishing to undergo review for medical advertising must pay the fee set by the self-review organization. ⑥ Provisions of Articles 29, Clause 3, 30, Clause 1, 32, 83, Clause 1, and Article 37 of the Civil Act shall not apply to the medical advertising review work and related tasks performed by the self-review organization as specified in Clause 1, nor to those performed by the self-review organization as specified in Clause 2. ⑦ The self-review organization may submit recommendations to the Minister of Health and Welfare regarding improvements to the medical advertising system and regulations. ⑧ The validity period for reviews under Clause 1 shall be three years from the date of approval for the application. ⑨ If healthcare professionals wish to continue medical advertising after the expiration of the validity period specified in Clause 8, they must apply for medical advertising review to the self-review organization six months prior to the expiration. ⑩ Aside from what is specified in Clauses 1 to 9, the establishment, operation, and matters necessary for review of the self-review organization shall be determined by the self-review organization. ⑪ When the self-review organization conducts review-related tasks as per Clauses 1 and 4, it must do so in a fair and transparent manner according to the provisions set forth in Clauses 1 to 3 of Article 56. |
Unfair advertising prohibited by the Medical Law includes:
1) Using the title of a specialized hospital despite not being designated as one by the Ministry of Health and Welfare as per Article 3-5 of the Medical Law (Article 3-5, Clause 1, Article 56, Clause 2, Item 3),
2) Inducement or referral of patients (Article 27, Clause 3 of the Medical Law),
3) Types of prohibited medical advertising (Article 56, Clause 2 of the Medical Law). Contents enumerated in Article 56, Clause 2 include: ① Advertising for unassessed new medical technologies, ② Advertising that may lead to misunderstandings about treatment effects based on consumer experience, ③ False advertising, ④ Comparison advertising, ⑤ Defamation advertising, ⑥ Advertising exposing treatment practices, ⑦ Advertising omitting side effect information, ⑧ Exaggerated advertising, ⑨ Advertising that claims qualifications or titles without legal basis, ⑩ Advertising presented in expert opinion form through newspapers, ⑪ Unreviewed advertising, ⑫ Domestic advertising to attract foreign patients, ⑬ Advertising that discounts fees for non-covered treatments risking consumer deception, ⑭ Use of awards and certificates in advertising and related endorsements or guarantees; these represent 14 types.
Actions violating Article 56 of the Medical Law regarding prohibitions on medical advertising may result in a penalty of up to one year of imprisonment or a fine not exceeding 10 million won. Those falling under the regulations by the medical-related administrative penalty rules shall expect penalties of 1 to 2 months of work suspension (Article 89, Clause 1 of the Medical Law) and if classified as illegal patient referrals, inducements, or solicitations (related to Article 27, Clause 3), penalties may include three years of imprisonment or fines of up to 30 million won and qualification suspensions of two months as per Article 88, Clause 1 of the Medical Law.
Cheongchul Law Firm provides consultation to numerous medical institutions, medical advertising platforms, and health check-up reservation platforms, possessing expertise in medical laws, medical device laws, etc. Attorneys from the firm who come from big law firms and large corporations handle client cases directly.
If you are considering legal matters related to medical law, feel free to contact us anytime.
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