In a joint letter from the FDA and the FTC in 1996, the agencies warned against manufacturers or practitioners promoting the excimer laser for off-label uses. However, the agency reiterated that surgeons may not advertise the laser for off-label uses. The FTC's primary remedy against false and misleading advertising is to seek injunctive relief. However, courts have forced some advertisers to pay civil penalties in cases in which they have been unjustly enriched by false advertising. The FDA cannot impose penalties against a physician who merely advertises his or her services, but can seek injunctive relief and civil or criminal penalties against a physician who advertises a medical device in a manner that is inconsistent with its FDA-approval status.
Every state has general consumer protection laws that prevent deceptive trade practices.
For example, Texas law provides that false, misleading, or deceptive acts or practices in the conduct of trade or commerce are unlawful. Similarly, New York law provides that false advertising in the conduct of any business, trade, or commerce or in the furnishing of any service is unlawful. 12 California law provides that it is unlawful to, among other things, make or disseminate untrue or misleading statements in any advertising material with the intent of selling goods or services. 13 Many states also have specific laws that restrict physician advertising. 17 New York and Texas also preclude the use of testimonials by physicians.