The Resurgence of the ‘White Coat Rule’10 Sep, 2013 By: Linda A. Goldstein
The use of doctors and other health professionals to endorse dietary supplements is a staple in the arsenal of direct response advertising techniques. Marketers should be aware, therefore, of a recent trend by the networks (and their affiliates) to more aggressively and stringently enforce what is known as the “white coat rule.” That rule essentially prohibits the use of health-related professionals or actors representing such persons from promoting or endorsing OTC or other health related products.
It is important to note that the rule, which dates back to the early 1970s, is not a law, but a guideline adopted by all of the major networks as part of their “Standards and Practices,” based in guidance from the Federal Trade Commission (FTC). The theory behind the rule is that if doctors are shown endorsing OTC or similar health-related products on TV, consumers may rely on those endorsements and not seek the advice of their own doctors. The rule prohibits not only the use of actual doctors, but also the use of actors portraying doctors because the image of even “actors” in a “white coat” could be so compelling that consumers would interpret such images as equivalent to an actual endorsement by doctors. The rule does not apply to products that actually require a doctor’s prescription, as in those cases, the consumer could not bypass seeking the advice of their physician.
Because the “white coat rule” is a guideline and not a law, its enforcement and interpretation by the networks has varied over the years, and that has understandably led to some industry confusion and misunderstanding about what the rule actually does and does not permit. In particular, many in the industry have mistakenly thought that rule literally prohibits only the depiction of an actor in a “white coat” or the depiction of an actor portraying a doctor in white coat. Unfortunately, the rule is much broader and technically prohibits the use of any doctor – even a real one – from endorsing an ingestible OTC or dietary supplement, regardless of whether they are wearing a white coat or not.
The impact of the rule on direct response advertisers has often been mitigated by the fact that it is part of the broadcast networks’ “Standards and Practices” and accordingly not binding on affiliates or cable networks. Recently, however, we have seen increased and more stringent enforcement by local stations that are affiliates of the networks. Therefore, direct response marketers should be cognizant of the rule when developing creative if the shows will be placed on any network owned and operated or affiliate stations.
In particular, while the rule technically prohibits the use of doctors or actors portraying doctors as endorsers of a dietary supplement or OTC product, there are still ways that such professionals can be incorporated into shows. For example, it is permissible under the rule for medical doctors to talk about particular ingredients and how those particular ingredients can help certain conditions as long as there is no specific endorsement of the product. Similarly, the rule does not apply to researchers and scientists. Thus, it may be permissible to have scientific professionals and researchers, including those who have PhDs and use the title “Dr.” endorsing the product – as long as it is clear in the show that these individuals are scientific professionals and not medical doctors.
Marketers who experience clearance issues with shows based on the application of this rule should also be aware that there are processes and procedures for appealing these decisions to the networks. With the proliferation of media outlets, the networks are not anxious to lose potential advertising revenue. Thus we have found the networks to be quite helpful and cooperative in working with our marketing clients to find acceptable creative solutions that will help facilitate clearance of the shows.
Linda Goldstein is chair of the Advertising, Marketing and Media division of Manatt, Phelps & Phillips LLP, based in the firm’s New York office. She can be reached at firstname.lastname@example.org.