N.J. Admin. Code § 13:38-1.2

Current through Register Vol. 56, No. 11, June 3, 2024

Section 13:38-1.2 - General advertising practices

(a) The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Advertisement" means any attempt directly or indirectly by publication, dissemination, or circulation in print or electronic media which directly or indirectly induces or attempts to induce any person or entity to consider, purchase or enter into an agreement to purchase optometric services, treatment, or ophthalmic materials from an optometrist.

"Electronic media" means and includes radio, television, computer and Internet.

"Optometrist" means any individual holding a license issued by the New Jersey State Board of Optometrists.

"Print media" means newspapers, magazines, periodicals, professional journals, professional letterhead, professional cards, telephone directories, circulars, handbills, flyers, billboards, signs, on premise signs and other similar items, documents or comparable publications, the content of which is disseminated by means of the printed word.

(b) An optometrist may, consistent with the provisions set forth in this section, advertise to the consuming public, through print or electronic media, the availability of optometric services and ophthalmic materials. In any advertising permitted by this subchapter, an optometrist shall not use, employ, permit or condone any practice, statement or format which is false, fraudulent, misleading or deceptive.

(c) An optometrist may advertise fees for services to be rendered and prices for ophthalmic materials offered for sale provided that:

1. The advertised service or ophthalmic materials are provided for not more than the advertised amount;

2. All advertised fees or prices are clearly and conspicuously displayed;

3. A statement of a fee for professional services shall be set forth in a single dollar amount and shall not be stated in the form of a range of fees. A statement of price relating to ophthalmic materials may be set forth in a range provided such range is stated in terms of a minimum and maximum dollar amount;

4. Where a separate or additional fee for the service of dispensing ophthalmic materials is to be charged, the advertisement shall disclose the dollar amount of such fee;

5. Where prices are set forth for ophthalmic materials and services for eyeglasses (lenses and frames), the advertisement shall indicate the type of frames and corrective lenses being offered such as clear or tinted, single vision or multifocal, and plastic, glass or other material. The lenses and frames may be priced separately or as a combined package. If the eye examination is included in the combined package, the advertisement shall also indicate the cost of the eye examination if the combined package is not purchased;

6. When prices are set forth for ophthalmic materials and services for contact lenses, the advertisement shall include, the fee for the minimum eye examination as defined in 13:38-2.1, the fee for the contact lens fitting or evaluation, the fee for the type and brand of lens being offered, and the fee for fitting instruction and follow-up care. These items may be priced separately or as a combined package. If a combined package is advertised, the advertisement shall also indicate the fee for individual services if the combined package is not purchased. If the cost of a contact lens care kit is not indicated as a separate item or as a part of a combined package, the following statement shall be set forth: "The proper maintenance of certain contact lenses requires disinfection, storage and cleansing in special containers and solutions, the cost of which is not included in this offer." In all advertisements which include a price for a contact lens care kit, the type of kit shall be set forth. When the price of a contact lens is advertised, a statement shall be made to note that such lens may not be appropriate for all patients; and

7. An optometrist may offer a free or reduced fee eye examination. The advertisement shall include the usual and customary fee. An advertised offer of a free or reduced fee eye examination shall not be contingent upon a resultant purchase of ophthalmic materials or services.

(d) In the event that an advertisement contains a statement with regard to an advertiser's refund policy, such policy shall clearly and conspicuously set forth all conditions including relevant time periods and dollar amounts to be refunded.

(e) An advertisement shall not state that the optometrist possesses professional superiority with regard to services or materials offered or with regard to apparatus, equipment or technology utilized by the optometrist unless such claims can be substantiated.

(f) When an advertisement contains information on professional credentials, it shall only contain academic degrees obtained from colleges and universities accredited by the United States Department of Education and the Council on Post-Secondary Accreditation.

1. Titles of post-graduate professional fellowships may be used by licensees in advertisements provided such titles are reviewed and approved by the Board.

2. The Board shall only review and approve the use of titles from post-graduate professional fellowships that have an educational, peer review and testing component. The listing of approved titles shall be maintained by the Board and available to licensees upon request.

3. The use of approved titles of post-graduate professional fellowships shall not be deemed to be a claim of professional superiority.

4. It shall be deemed to be deceptive advertising for an optometrist to utilize the terms "specialist," "specialty" or the substantial equivalent in any advertisement as defined by (a) above; provided, however, that nothing in this section shall prohibit an optometrist from utilizing such terminology as "practice limited to," where the advertising optometrist's practice is exclusively or primarily devoted to one or more of the recognized areas of optometric services, for example, practice limited to low vision services.

5. Nothing in this section shall preclude any truthful and nondeceptive statement in regard to experience in a particular area of optometry (for example, 10 years experience in contact lens fitting and dispensing).

(g) For a period of not more than two years from the date of succession to the practice of another optometrist, an optometrist may use a telephone listing of such prior optometrist together with the words "succeeded by" or "successor to" or the substantial equivalent, and for the same time period may also use the prior optometrist's name in any advertisement.

(h) An optometrist may only be listed in the classified section of any directory under the classification entitled "Optometrist," "Doctor of Optometry," or "Optometric Physician." Such listing shall show the address or addresses for which an active license or certification has been issued to practice optometry in this State.

(i) Any optometrist whose license is either suspended or revoked shall not be permitted to advertise during the period of active suspension or revocation except to announce the closing of the optometrist's office and/or where the patient records may be available.

(j) It shall be an unlawful advertising practice for an optometrist to:

1. Guarantee that services rendered will result in cures of any optometric or visual abnormality;

2. Fail to retain a copy or duplicate of any advertisement for a period of three years following the date of publication or dissemination. Such copies or tapes shall be made available upon request by the Board or its designee; or

3. Fail to substantiate any objective material claim or representation set forth in an advertisement.

(k) An optometrist may use testimonial advertising provided that:

1. All testimonials involving a specific or identifiable procedure truthfully reflect the actual experience of the patient;

2. The optometrist shall be able to substantiate any objective, verifiable statement of fact appearing in a testimonial. The failure to do so, if required by the Board, may be deemed professional misconduct;

3. Where an optometrist directly or indirectly provides compensation to a testimonial giver, the fact of such compensation shall be conspicuously disclosed in a clear, legible and readable manner in any advertisement as follows: "COMPENSATION HAS BEEN PROVIDED FOR THIS TESTIMONIAL"; and

4. The optometrist shall maintain documentation relating to such testimonials for a period of three years from the date of the last use of the testimonial. Such documentation shall include the name, address and telephone number of the individual in the advertisement, the type and amount or value of compensation, and a signed release indicating that person's willingness to have his or her testimonial used in the advertisement.

(l) An optometrist shall include his or her license and certification number in all advertisements, except in directory listings that do not include any optometric services (that is, listings that include the licensee's name, address, and phone number).

N.J. Admin. Code § 13:38-1.2

R.1981 d.295, effective 8/6/1981.
See: 13 N.J.R. 233(a), 13 N.J.R. 519(a).
Amended by R.1989 d.252, effective 5/15/1989.
See: 20 N.J.R. 2361(b), 21 N.J.R. 1366(b).
Recodified as new 1.2 from old 1.9 and replaced old 1.2, "Announcements of office opening or association," which was repealed.
In (b), deleted language requiring that an advertisement includes statement regarding an optometrist's licensure.
In (c)2, deleted "and set forth in the same type size."
Deleted old (c)3 and 4 and recodified old (c)5 and 6 as new (c)3 and 4.
Added new (c)5 and 6 clarifying advertisement guidelines for the sale of optometric goods.
Deleted old (c)7 and 8 describing contact lens advertising and added new (c)7.
Deleted old (e) and recodified old (f)-(i) as new (e)-(h), adding additional language clarifying advertising requirements.
Added new (i) with language explaining sanctions regarding advertising by suspended or revoked licensed optometrists.
Amended by R.1989 d.552, effective 11/6/1989.
See: 21 N.J.R. 2467(a), 21 N.J.R. 3475(a).
In (j): Deleted old 1 on use of certain lights for advertising. Changed 2 to 1, adding 1i-iii. Changed old 3 to 2 and deleted old 4 and 5, regarding prohibition against use of unprofessional advertising or a medium that limits access to a closed class of optometrists. Changed old 6 and 7 to new 3 and 4.
Amended by R.1993 d.357, effective 7/19/1993.
See: 24 N.J.R. 4237(a), 25 N.J.R. 3232(a).
Petition for Rulemaking.
See: 26 N.J.R. 4707(c).
Amended by R.1995 d.524, effective 9/18/1995.
See: 27 N.J.R. 2092(a), 27 N.J.R. 3617(a).
Amended by R.2006 d.126, effective 4/3/2006.
See: 37 N.J.R. 3780(a), 38 N.J.R. 1574(b).
In (a), deleted definition "Accrediting bodies"; in (c)6, corrected a grammatical error and substituted "disinfection" for "sterilization"; in (c)7, added "The advertisement shall include the usual and customary fee."; rewrote (f); in (l), added ", except in directory listings that do not include any optometric services (that is, listings that include the licensee's name, address, and phone number)".