May 15, 2012
Question:
Hello Jennifer,
Can physicians profit from in office product sales (i.e. vitamins, nasal washes, skin care products etc). The AMA seems to frown upon this but I know many physicians that do this. Is it legal or are there any other issues that one need to be concerned with?
Many thanks,
Dr. S.
Answer:
No rule exists prohibiting you from selling products in your office - generally. However, there are prohibitions and regulations regarding specific products (and devices). For example, clearly if a product is not FDA approved, you should not be advertising sale or selling in your office. Of course, this is a very general question and to opine on a specific product we would need to know what product you intend to sell. Depending the type of product, our review would vary. Prescription drug sales is highly regulated, moreso than other the counter beauty products, and therefore may require a more stringent review - checking with more government agencies, etc.
Assuming that the products being offered for sale by your office are permissible, you do need to be aware of other regulations. For example, New York Education Law 6530 considers it professional misconduct to exercise “undue influence on the patient, including the promotion of the sale of services, goods, appliances, or drugs in such manner as to exploit the patient for the financial gain of the licensee or of a third party.” Therefore, you need to take action to alleviate any potential for undue influence. As an example, you should notify the patient of the availability of the product elsewhere.
Of note, the American Medical Association is not supportive of selling products and states so in Ethics Opinion 8.062 available here: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion8062.page, which states:
“The sale of non-health-related goods by physicians presents a conflict of interest and threatens to erode the primary obligation of physicians to serve the interests of their patients before their own. Furthermore, this activity risks placing undue pressure on the patient and risks demeaning the practice of medicine.”
The opinion goes on to state that with limited exception, physicians “should not sell non-health-related goods from their offices or other treatment settings.”
A related opinion 8.063 available here: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion8063.page addresses the sale of health related products from physicians’ offices. Of note, the opinion specifically states that selling includes endorsing products patients purchase elsewhere that result in direct remuneration for the physician and:
“In-office sale of health-related products by physicians presents a financial conflict of interest, risks placing undue pressure on the patient, and threatens to erode patient trust and undermine the primary obligation of physicians to serve the interests of their patients before their own.”
Further, guidelines are introduced should you elect to sell products in your practice (or on your website), as follows:
Hello Jennifer,
Can physicians profit from in office product sales (i.e. vitamins, nasal washes, skin care products etc). The AMA seems to frown upon this but I know many physicians that do this. Is it legal or are there any other issues that one need to be concerned with?
Many thanks,
Dr. S.
Answer:
No rule exists prohibiting you from selling products in your office - generally. However, there are prohibitions and regulations regarding specific products (and devices). For example, clearly if a product is not FDA approved, you should not be advertising sale or selling in your office. Of course, this is a very general question and to opine on a specific product we would need to know what product you intend to sell. Depending the type of product, our review would vary. Prescription drug sales is highly regulated, moreso than other the counter beauty products, and therefore may require a more stringent review - checking with more government agencies, etc.
Assuming that the products being offered for sale by your office are permissible, you do need to be aware of other regulations. For example, New York Education Law 6530 considers it professional misconduct to exercise “undue influence on the patient, including the promotion of the sale of services, goods, appliances, or drugs in such manner as to exploit the patient for the financial gain of the licensee or of a third party.” Therefore, you need to take action to alleviate any potential for undue influence. As an example, you should notify the patient of the availability of the product elsewhere.
Of note, the American Medical Association is not supportive of selling products and states so in Ethics Opinion 8.062 available here: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion8062.page, which states:
“The sale of non-health-related goods by physicians presents a conflict of interest and threatens to erode the primary obligation of physicians to serve the interests of their patients before their own. Furthermore, this activity risks placing undue pressure on the patient and risks demeaning the practice of medicine.”
The opinion goes on to state that with limited exception, physicians “should not sell non-health-related goods from their offices or other treatment settings.”
A related opinion 8.063 available here: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion8063.page addresses the sale of health related products from physicians’ offices. Of note, the opinion specifically states that selling includes endorsing products patients purchase elsewhere that result in direct remuneration for the physician and:
“In-office sale of health-related products by physicians presents a financial conflict of interest, risks placing undue pressure on the patient, and threatens to erode patient trust and undermine the primary obligation of physicians to serve the interests of their patients before their own.”
Further, guidelines are introduced should you elect to sell products in your practice (or on your website), as follows:
(4) Physicians should not participate in exclusive distributorships of health-related products which are available only through physicians’ offices. Physicians should encourage manufacturers to make products of established benefit more fairly and more widely accessible to patients than exclusive distribution mechanisms allow.
If you are selling products, I recommend you review the above referenced opinions (and opinions referenced within those opinions) in greater detail, and/or contact our office for a review to ensure compliance.
K&K associate Erica Youngerman, Esq. assisted in the preparation of this newsletter.
If you are selling products, I recommend you review the above referenced opinions (and opinions referenced within those opinions) in greater detail, and/or contact our office for a review to ensure compliance.
K&K associate Erica Youngerman, Esq. assisted in the preparation of this newsletter.
Copyright © 2012 by Kirschenbaum & Kirschenbaum, P.C.
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