I. Preface

With the vigorous development of diversified communication media and the increasing convenience and accessibility of information transmission, the use of communication media as a medium for advertising and marketing of goods and services has become an important tool for industry players to solicit business in market competition. Taking the medical industry as an example, the medical industry has recently been actively involved in advertising and promoting medical services. Compared with the tradition of passively waiting for patients to come to the hospital, medical institutions are taking the initiative to attract patients in need of medical treatment through medical advertising. In addition, with the changes in the concept and form of medical treatment, medical services are no longer limited to general medical treatment aimed at curing diseases, but have gradually expanded to include aesthetic medicine intended for achieving a beautiful appearance. For this new form of medical business, attracting patients through medical advertisements is an indispensable tool for soliciting business.

However, medical services are, after all, different from general commercial activities. Due to its nature of being for the public welfare, and the fact that it is related to the life and health of the people, it is necessary to appropriately restrict the content and methods of medical advertisements in order to achieve the purpose of protecting people’s health and well-being. Therefore, the Medical Care Act in the Republic of China (Taiwan) currently in force explicitly restricts the subject, content, and manner of medical advertisements. This article will provide an overview on the restrictions on medical advertisements under Taiwan’s Medical Care Act according to the current law, administrative interpretation, judicial practices, and the recent Taiwan Constitutional Court Judgment 112-Hsien-Pan-Zi No. 17 (2023).

II. Definition of Medical Advertisement

Before elaborating on the restrictions of medical advertisements, we should first define what “medical advertisement” means. As respectively stipulated in Article 9 of the Medical Care Act, “The term —advertisement of medical treatment” as used in the Act shall refer to the act of advertising medical practices by means of propagation for the purpose of soliciting patients,” and Paragraph 1 of Article 87: “Advertisements containing content which implies or suggests medical practices shall be regarded as advertisements for medical care”; Paragraph 2 of Article 87: “Publications of new medical knowledge or research results, health education for patients, or academic publications which do not involve solicitation for medical practices shall not be regarded as advertisements for medical care.”

As for the definition of “medical practices”, as stipulated in Letter Wei-Shu-Yi-Zi No. 83068006 issued by the Ministry of Health and Welfare on November 28, 1994, it refers to the practice including “diagnosis, examination and treatment for the purpose of treating, correcting or preventing human disease, injury or disability, as well as prescription, medication, surgery or treatment based on the results of diagnosis and examination”.

Unlike traditional medicine, which aims to diagnose and treat patients' illnesses and defects in bodily functions, patients seeking aesthetic medicine are usually in good health and seek medical treatment only to achieve a beautiful appearance. Therefore, there is the question as to whether such type of business falls within the scope of medical practice, which should be subject to the restrictions on medical advertisement under the Medical Care Act. In this regard, the Ministry of Health and Welfare has clearly stated in the Letter Wei-Bu-Yi-Zi No. 1021681168 dated September 30, 2013 that aesthetic medicine is included in medical practice and thus the provision of aesthetic medicine services should be classified as medical practice. This is also generally recognized in Taiwan’s judicial practices. 
 

III. Restrictions on Medical Advisements under the Medical Care Act

(1) Restrictions on Subject

According to Article 84 of the Medical Care Act: “Non-medical care institutions shall not make advertisements for medical care.” In addition, according to the Letter Wei-Bu-Yi-Zi No. 1041665592 issued by the Ministry of Health and Welfare on August 10, 2015: “…3. As stipulated in Article 84 of the Medical Care Act…it has been expressly stipulated that only medical care institutions may publish medical advertisements. Physicians are not medical institutions, so they are prohibited from publishing medical advertisements.” According to the laws and regulations currently in force, no one, including “physicians” themselves, is allowed to publish medical advertisements except medical institutions approved by the competent authority under the Medical Care Act, even though they are the subjects carrying out medical practice.

However, pursuant to Article 84 of the Medical Care Act, the provision that “physicians” themselves are not allowed to publish medical advertisements has faced a backlash from the medical community. With regard to this controversy, the Constitutional Judgment 112-Hsien-Pan-Zi No. 17 of 2023 issued by the Constitutional Court on November 3, 2023 (the “Constitutional Judgment”) clearly stated that Article 84 of the Medical Care Act, which prohibits “physicians” from publishing medical advertisements, is contrary to the freedom of speech under Article 11 of the Constitution of the Republic of China (Taiwan). Therefore, within this scope, Article 84 is invalidated from the date of the Constitutional Judgment (that is, it is unconstitutional in part, and the legal effect is that it is immediately invalidated).

The following is a summary of the content of Constitutional Judgment Hsien-Pan-Zi No. 17 of 2023:

This Constitutional Judgment is based on Article 84 of the Medical Care Act currently in force, which restricts physicians from advertising their medical services or practices, and conducts a test based on the principle of proportionality. The test standards are the same as those of the previous standards adopted by the JY Interpretation Nos. 414, 577, and 794, which adopted the intermediate scrutiny standard.
 

In terms of practice, this Constitutional Judgment holds that there are two purposes to the restriction of physicians making medical advertisements under Article 84 of the Medical Care Act currently in force, first it is to avoid management difficulties caused by physicians for medical advertisements (according to the Physicians Act, physicians shall practice in a medical institution approved and registered by the competent authority. As such, the relevant medical advertisements should be in the name of the medical institution, which is more convenient for management); and second, it is to maintain the health and welfare of the people.

With regard to the test for the purpose of the principle of proportionality, the two purposes mentioned above can be considered separately. For the first purpose (administrative convenience), the Constitutional Judgment believes that there is not much difference in facilitating people’s access to medical information whether the medical advertisement is provided by the physician or by the medical institution. Therefore, if physicians are prohibited from advertising medical practices solely for the convenience of administrative management, it cannot be said that its purpose is to pursue important public interests, and thus cannot pass the test for principle of proportionality. As for the second purpose (maintaining the health and welfare of the people), the Constitutional Judgment explicitly stated that maintaining the health of the people is undoubtedly a purpose of pursuing public interests. Therefore, Article 84 of the Medical Care Act currently in force, which restricts physicians from making medical advertisements, still passes the proportionality test.

With regard to the methods for conducting the proportionality test, this Constitutional Judgment considers that since physicians are the persons with medical expertise who are legally able to perform medical practices, it is appropriate for physicians to provide relevant and appropriate medical information that should be helpful to patients in seeking medical treatment. In order to fulfill the right of patient to make decisions, the methods used to prohibit physicians from advertising medical services may not be conducive to achieving the purpose of the aforementioned restrictions, which is to maintain people's health. Moreover, for a period of almost 40 years between 1943 and 1986, the law of the Republic of China (Taiwan) allowed physicians to advertise their medical practice. There is no empirical data to prove that once physicians are allowed to advertise their medical practice, such advertising will definitely endanger the health of people. As a result, the conclusion of the Constitutional Judgment specifically points out that it is difficult to see the substantial correlation between the legislative purpose of “maintaining the health of the people” and the method of “comprehensively prohibiting physicians from making medical advertisements” under Article 84 of the Medical Care Act. Such a restriction violates the principle of proportionality under Article 23 of the Constitution as well as against the protection of the freedom of speech of physicians under Article 11 of the Constitution. It is therefore declared that the relevant scope of Article 84 of the Medical Care Act is invalid with immediate effect from the date of the announcement of this Constitutional Judgment.

(2) Content Restriction

The restrictions on the content of advertisements for medical care are provided in Article 85 of the Medical Care Act.

Specifically, if the advertisements for medical care are delivered by means other than broadcast, television media or the internet, they are considered to be general advertisements to which the restrictions set forth in Paragraph 1 of Article 85 of the Medical Care Act shall apply, with the content of the advertisements being limited to the items stipulated in Subparagraphs 1 to 6 thereof. In principle, the information shall only include the basic information of the medical care institution and the physician, whether the hospitals or clinics is contracted or associated with the National Health Insurance, the practices and hours of the clinic, the basic information of the operation/practice, as well as the other items allowed as provided in the Announcement Wei-Bu-Yi-Zi No. 1031660048 issued by the Ministry of Health and Welfare on January 24, 2014.

In the case of advertisements for medical care delivered through broadcast or television media, the restrictions set forth in Paragraph 2 of Article 85 of the Medical Care Act shall apply. In other words, in addition to the contents of the advertisements being restricted by the matters listed in Paragraph 1 of Article 85 of the Medical Care Act, the advertisements must be approved by the local competent authorities prior to broadcast.

Furthermore, if the advertisements for medical care are delivered through the internet, the provisions of Paragraph 3 of Article 85 of the Medical Care Act shall apply. According to this provision, in principle, the contents of the advertisements are not limited to the matters provided in the aforementioned Paragraph 1 of Article 85 of the Medical Care Act and may additionally include the matters stipulated in Paragraph 2 of Point 2 of the “Regulations Governing Information Management of Medical Institutions on Internet,” which is enacted by the Ministry of Health and Welfare. However, it should be noted that the advertisements for medical care delivered through the internet are exempted from the strict restriction of Paragraph 1 of Article 85 of the Medical Care Act only with respect to the content of the advertisements. They are still subject to the other restrictions of the Medical Care Act (e.g., the restrictions on advertisement manners under Article 86 of the Medical Care Act).

(3) Manner Restrictions

The restrictions on the manners of medical advertisements can first be found in Paragraph 1 of Article 61 of the Medical Care Act. This article stipulates that medical care institutions shall not solicit patients through improper manners that are proclaimed and prohibited by the central competent authority. As for the “improper manners”, as stipulated in Letter Wei-Shu-Yi-Zi No. 0940203047 issued by the Ministry of Health and Welfare on March 17, 2005, they clearly include: publicly claiming that patients coming in for medical treatment will receive  gifts in various forms, discounts, free coupons, or promoting preferential payment methods, such as interest-free loans and installment payments, etc.

In addition, Article 86 of the Medical Care Act stipulates that advertisements for medical care shall not be made in the manners described in Paragraphs 1 to 7 of the same Article. As for “to publicize by any other improper means” set forth in Paragraph 7, the Ministry of Health and Welfare has clearly explained in the Letter Wei-Bu-Yi-Zi No. 1051667434 dated November 17, 2016 that it refers to the advertising method that meets any of the circumstances of the Letter, including: advertisements that emphasize descriptive terms such as “high-end” and “ranking” or similar sensational terms, advertisements that exaggerate the medical efficacy or other similar sensational language, and advertisements whose contents cannot be positively proved to be true, etc.

(4) Effect of Violations

If there is any violation of the restrictions on medical advertisements under the aforementioned Medical Care Act, administrative sanctions will be imposed in accordance with Articles 103 and 104 of the Medical Care Act, respectively, based on the content of the violation.

IV. Conclusion

The restrictions on medical advertisements under the Medical Care Act currently in force, including the restrictions on the subject, content and manners, are mainly centered on protecting the  health of the people. Although the recent Taiwan Constitutional Court Judgment 112-Hsien-Pan-Zi No. 17 (2023) declared that the restrictions on physicians as the subject of medical advertisements is unconstitutional, other restrictions on medical advertisements are not within the scope of the Constitutional Judgment and thus shall still be complied pursuant to the Medical Care Act currently in force.

Consequently, before publishing medical advertisements, it is necessary to clearly understand the relevant restrictions of the Medical Care Act. In addition to the fact that only medical institutions and physicians can be the subject of publication, the contents and manner of publication must also be carefully decided. Since the previous Letters from the competent authorities have clearly listed a number of inappropriate advertisements, it is recommended that medical advertisements should be prepared with reference to the relevant contents and should avoid the use of such sensitive terms and phrases in advertisements, so as to avoid the risk of unnecessary administrative sanctions in the process of soliciting patients in market competition.