The Federal Council of Medicine (CFM) published on September 13, the Resolution CFM 2,336/23, which updates the ethical rules for medical advertising and publicity. The rule comes into force on March 11, 2024 and will replace CFM Resolution 1,974/11, which currently regulates the matter and imposes a series of limitations on the disclosure of procedures prices, payment modalities/installments and participation in ads, among others.

The new regulation defines medical advertising as the act of promoting physical structures, services and qualifications of the physician or physical or virtual health facilities. Medical advertising, on the other hand, is the act of publicizing matters and actions of medical interest.

Check out the main updates:

• Promotion in social media

CFM Resolution 2,336/23 innovated by setting requirements for the disclosure of doctors' skills and qualifications of physicians and their physical or virtual care environments, on doctors' and establishments' own social networks.  These are considered to be social networks in their own right: websites, blogs, Facebook, Twitter, Instagram, YouTube, WhatsApp, Telegram, Sygnal, TikTok, LinkedIn, Threads and other similar means that may be created.

Besides being informative, advertising and publicity may be aimed at forming, maintaining or expanding a clientele.

The rule also recognizes the possibility of publications and posts by third parties and/or patients praising the procedure’s technique and outcome. However, when they occur repeatedly and/or systematically, the publications will be subject to investigation by the Commission for the Disclosure of Medical Affairs (Codame) of the regional medical councils (CRMs). 

• Using patient images

The regulation also allows the use of patient images or image banks, provided they are for educational purposes and in the following contexts:

• Material on diseases and procedures or related to the specialty, allowing the use of images to inform about manifestations, signs and symptoms that recommend seeking medical evaluation, and may describe possible technical solutions.

• Demonstrations of technique and procedure results, provided that the use of images contains educational text with therapeutic indications, factors that influence possible results and a description of complications. Before and after demonstrations should mention indications, satisfactory and unsatisfactory progress and complications resulting from the intervention.

It is forbidden to use procedures’ images that identify the patient, as well as any editing, manipulation or improvement of the images.

Reposted patients’ self-portraits and testimonies about the doctor's performance should be straightforward, without adjectives that denote superiority or suggest a promise of result.

When the images are taken from the doctor's own files, it is necessary that the patient gives express authorization for the image’s use as well as that his anonymity is guaranteed.

• Commercial conditions disclosure

CFM Resolution 2,336/23 also authorizes the disclosure of commercial information on:

• consultations fee, means and methods of payment;
• rebates and discounts in promotional campaigns; and
• courses cost, consultancies and working groups, with access restricted to physicians to discuss clinical cases and/or updates in the field of medicine.

Professionals can advertise the use of orthoses, prostheses, drugs, supplies and similar, as long as they describe the characteristics and properties of the products used, in accordance with CFM Resolution 2, 316/22, which regulates the prescription of implantable materials, orthoses and prostheses.

The advertisement can also be made when the doctor is the creator or developer of the orthosis or supply, provided that they use the portfolio approved by the National Health Surveillance Agency (Anvisa) and are authorized by the CFM. However, it is forbidden to advertise commercial brands and manufacturers.

• Prohibitions maintained

Some prohibitions that were laid down in the previous resolution have been maintained. Doctors may not assign privileged capacity to devices and techniques, nor take part in advertising for medicines, medical supplies, equipment and any food. Nor can they grant quality seal to food, sports and personal or environments hygiene products, inducing a result guarantee.

 Machado Meyer's Life Sciences & Health practice can provide more information on the matter.