After three years of discussion, the Federal Council of Medicine (CFM) published Resolution No. 2,336/2023 on September 13, 2023 (the “Resolution”), which updates the rules governing medical advertising, repealing the previous restrictive rule (Res. 1,974/2011) in order to modernize medical marketing and meet the demands of the medical sector and society.

Despite the changes, the Resolution is consistent with Exhibit “G” of the Code issued by the Brazilian Advertising Self-Regulation Council, which is applicable to the medical sector.

You will find below the key topics of the Resolution:

Definitions of medical advertising and propaganda

The Resolution now defines the terms “medical advertising” and “medical propaganda”, respectively, as the act of promoting the facilities, services, and qualifications of physicians or medical establishments, and the act of disseminating matters and actions of interest to medicine.

Obligations of physicians and establishments

Any medical advertising or propaganda must include mandatory information, such as the physician’s name, number of the registration with the Regional Council of Medicine (“CRM”), and the term “PHYSICIAN,” as well as mention of the specialty and/or field of practice.

For establishments, its name with the corresponding CRM number and the name of the medical director accompanied by their CRM number are mandatory.

Such obligations also apply to posts on social media, blogs, and websites. In this case, the mandatory information must be included on the main page of the profile.

Before and after images

The use of before-and-after images in demonstration of the results of techniques and procedures is now authorized, provided they are accompanied by information on the indication, evolution, and complications of the procedure. However, it is prohibited to demonstrate and teach techniques inherent to the medical environment.

Courses, consultations, and workgroups

The Resolution expressly authorizes the organization of certain educational activities, according to the following audiences:

• Courses and workgroups for laypeople, with an educational character. Consultations and information that lead to a judgment of diagnosis are prohibited, as is the teaching of a medical act that is exclusive to physicians.
• Courses, consultations, and workgroups for physicians, including discussion of clinical cases and/or general updates in medicine. However, the identification of the participants must be confirmed, and confidentiality criteria must be respected regarding the subjects and cases.
• Courses, consultations, and workgroups for medical students, including discussion of clinical cases. However, the participants must be identified and committed to respect confidentiality and the general rules of the activity.

Permissions

The following actions by physicians are now expressly authorized:

• Posting selfies, images, and/or audio on social media, provided they do not have sensationalist characteristics nor involve unfair competition.
• Purchasing advertising space in non-medical media for advertising/promotion.
• Using a photo or video with details the work environment, its own image, and images of members of the clinical team.
• Advertising devices and technology resources, including information, indications, and properties present in its portfolio, as approved by the Brazilian Health Regulatory Agency (Anvisa) and authorized by the CFM for medical use.
• Including reference regarding the appointment booking process, office hours, and dynamics of operation of the office, as well as on consultation fees, payment methods, and forms.
• Advertising discounts in promotional campaigns, provided they are not linked to bundled sales and awards that distort the activity.
• Participating in the promotion of health plans and insurance, provided that the physician renders services to these plans and insurance and the use of the image is authorized.
• Disclosing unlikely results in treatments, provided patients are not identified.

Prohibited practices

According to the Regulation, physicians and establishments are still not allowed to:

• State that they treat specific diseases when not qualified as a specialist.
• Promote equipment and/or medication without registration with Anvisa, or any method or technique not recognized by CFM.
• Offer services through consortia and similar.
• Maintain an office within pharmaceutical establishments, optical stores, orthotics or prosthetics providers, or suppliers of medical supplies.
• Engage in sensationalist or self-promotional behavior, as well as engage in unfair competition or disseminate false content.
• Participate in propaganda/advertising of products, inducing guaranteed results.
• Broadcast consultations and procedures in real time, except in scientific works and events, or childbirth.
• Guarantee, promise, or imply good treatment results.
• Advertise, within the premises of a clinic or medical entity, pharmaceutical companies, optical stores, orthotics and prosthetics providers, or medical supply companies of any kind, when an investor in any of them.
• Allow, authorize, or not prevent the disclosure of receiving titles such as ‘Doctor of the Year’ and ‘Outstanding Specialist”.

The Resolution shall be effective 180 days from the date of publication (September 13, 2023). CFM will make available the new Medical Matters Disclosure Manual resulting from the Resolution, which will become effective on the same date.

Our Life Sciences team is available to assist you with this matter and to provide any necessary clarifications to your company.