False, fraudulent, deceptive, misleading, or sensational advertising is prohibited. Advertising, whether paid for or not, is considered prohibited under this section if it meets any of the following criteria:

1. (1) Contains a misrepresentation of fact or omits a material fact necessary to prevent deception or misrepresentation;
2. (2) Promises relief or recovery unobtainable by the average patient by the methods publicized;
3. (3) Contains a testimonial pertaining to quality or efficacy of optometric care of services that does not represent typical experiences of other patients;
4. (4) Is intended or is likely to create false or unjustified expectations of favorable results;
5. (5) Contains a claim that the optometrist possesses skills, provides services, or uses procedures superior to those of other optometrists with similar training, unless the claim can be factually substantiated by scientific and accepted evidence;
6. (6) Takes advantage of a person's fears, vanity, anxiety, or similar emotions;
7. (7) Contains a claim that is likely to deceive or mislead the average member of the public to whom it is directed;
8. (8) Contains a false or misleading prediction or implication that a satisfactory result or cure will result from performance of professional services;
9. (9) Contains a claim that the optometrist uses or provides products that are superior to other similarly licensed optometrists unless claims can be factually substantiated by scientific and accepted evidence;
10. (10) Describes availability of products, procedures, or services that are not permitted by law;
11. (11) Is likely to attract patients by use of exaggerated claims;
12. (12) Contains a statement of uninvited direct solicitation of patients who, because of their particular circumstances, are vulnerable to undue influences;
13. (13) Fails to be identified as a paid announcement or solicitation when it is not apparent from the context that the advertisement is a paid announcement or solicitation, including advertising giving the impression it is a news story or an informational article; or
14. (14) Contains a statement of fees charged for specific professional services but fails to indicate whether additional fees may be required for related services that may also be required.

Source: SL 1975, ch 16, § 1; 6 SDR 66, effective January 8, 1980; 12 SDR 78, effective November 10, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 13 SDR 44, effective October 20, 1986; 39 SDR 127, effective January 21, 2013 ; 49 SDR 12, effective August 14, 2022 .

General Authority: SDCL 36-7-15 (2) .

Law Implemented: SDCL 36-7-1 5 (2) .

Prior versions effective: 2013-01-21.