By Pamela Miller, OD, FAAO, JD
Speaking at the invitation of a vendor can establish you as an authority in your profession and raise your visibility among peers, but you easily can step into legal problems. Here are simple precautions to put you at ease at the podium.
With the practice of medical eyecare now the standard in optometry, and new contact lenses frequently brought to market, more vendors are turning to ODs to give testimonials and expert opinion. Whether you’re a regular lecturer for a vendor as part of that vendor’s speaker’s panel, or you were just invited to speak at a vendor-sponsored event, you need to be aware of possible legal vulnerability. As with all legal matters, it is best to consult with your own attorney and state optometric board before taking any action.
Speaking About a Class of Products Vs. Specific Product
It is common for ODs to be asked to speak about the benefits of a class of products, whether it is a new kind of contact lens or a new eyedrop to treat an eyecare condition. Less often, a vendor will ask the OD to speak specifically about the benefits of its particular product–and that’s where the doctor can get herself into trouble. For example, there is little to worry about if a vendor is hosting an event on the value of the newest silicone hydrogel contact lenses and would like the optometrist to speak about her experience prescribing these kinds of contacts and any difficulties she has experienced. But if the vendor would like the OD to provide a testimonial specifically about one of its products, there could be a problem as the US regulations have changed in this area generally making it illegal for a doctor to promote a specific branded product when giving a lecture for CE credit.
The exception to the rule against doctors promoting specific vendor products is continuing education. If the primary purpose of the lecture is to educate, rather than promote, a specific product category (like fundus cameras with an FAF feature), then the doctor is still permitted to speak, however continuing education credit may not be approved.
Always Disclose Relationships with Vendors
Whether you are speaking at an event hosted by a vendor to address a class of products or lecturing in a continuing education capacity about a specific product, you must disclose your relationship with the vendor who invited you or who is underwriting the event. That means letting the audience know if you are being paid by the vendor or if you have participated in research or trials of the vendor’s products. The general rule is that a speaker must disclose any potential conflicts of interest or relationships.
No need to worry about this disclosure being awkward. You can easily work it into the beginning of your talk. For example, you might say: “Before we get started today, I wanted to let you know that I have been serving in a paid role on company X’s speaker’s panel for the last five years, and have really enjoyed the experience. I’ve gotten the chance to participate in research using their products and it’s been an educational experience me and my staff.” Most speakers simply start their lecture with a disclosure slide to avoid any problems and essentially making it a non-issue.
Payment to the doctor for speaking is usually not sent directly from the vendor to the doctor. The way it most often happens is an organization sponsors the event and then the vendor underwrites the cost of the event with the organization. Nevertheless, you still have to disclose your relationship with the vendor, including any reimbursement or payments you are receiving.
Ensure You’re On Same Page with Vendor Sponsor
If the vendor rep who has invited you to speak is under the impression that you are going to be providing a testimonial for his company’s specific product in a promotional capacity, and you have no intention of doing so, that will be a problem. To avoid this type of confusion, be sure to ask whomever has invited you to speak to outline in detail who is sponsoring the event and what is expected of you. If the event is not continuing education, let the organizers know you are not comfortable limiting your discussion to the benefits of that one branded product.
If the event is a continuing education event for a specific branded product or line of products, you still might want to remind the organizers that you will be disclosing to the audience your relationship with the company including any reimbursement you received for participating in research or for being on the company’s speaker’s panel. Most medical event organizers will know the legal requirements, but it is worth reminding them so there are no surprises.
Ascertain the Basics of Every Speaking Engagement
It’s like the old reporter’s axiom of who, what, where, why and how much. Those are the key questions to be answered when a vendor or organization asks you to speak at an event. You want to know where and for whom (or on behalf of what product or continuing education program) you will be speaking, how long you will be expected to speak, the agreed-on topic, the manufacturer providing supporting material like background data and your obligations. Again, you need to know whether it’s a product or a class of products you will be addressing and in what context: promotional or educational.
Personal Services Contract May Be Used
If you are going to perform a service like showing up at a certain location at a certain time to speak on a specified topic for a specified length of time, then a contract will most likely be sent to you. Once this contract is signed, you could be held liable for damages and lost money if you don’t show up and do what you agreed to do at the event, as this is generally a Personal Services Contract. So, after asking the right questions and thinking carefully about whether you want to speak at an event, be sure to uphold your end of the deal.
Pamela Miller, OD, FAAO, JD, DPNAP, has a solo optometric practice in Highland, Calif. She is an attorney at law, holds a therapeutic license, is California State Board-certified and glaucoma-certified to prescribe eye medications, and offers comprehensive vision care, contact lenses, visual therapy and low vision services. To contact her: firstname.lastname@example.org.