Advertising of veterinary facilities | In Principle

According to the European Pet Food Industry Federation, in 2022 there were 8 million dogs in Poland, the 6^th-highest number in Europe. The growing popularity of pets is noticeable. If you’re out walking your dog, morning or evening, it might seem nearly every person you pass is also walking their dog. More than 68% of dog owners humanise their pets and regard them as members of the family. This trend is affecting the market for pet products and services. The pet industry in Poland is growing rapidly, and this includes veterinary healthcare services.

Ban on advertising

The increasing competition for veterinary healthcare services encourages service providers to differentiate themselves. But Art. 29(2) of the Veterinary Facilities Act bans advertising of veterinary facilities:

1. A veterinary treatment facility may publicise information about the range of veterinary services it provides, its opening hours, and its address. The form and content of such information must not have the characteristics of advertising.
2. Via a resolution, the National Veterinary Chamber shall establish detailed rules for publicising the information referred to in par. 1, taking into account the range of veterinary services provided by veterinary treatment facilities.

Failure to comply with this ban is a petty offence under Art. 147a §2 of the Misdemeanour Code, punishable by arrest, probation or a fine.

Additionally, pursuant to Art. 7 of the Code of Ethics for Veterinarians, a veterinarian shall not use, or permit the use of, his or her name and professional title to advertise goods and services. Violation of this ban may give rise to professional sanctions.

Acceptable scope and form of information

Resolution 116/2008/IV of the National Veterinary Chamber of 12 December 2008 specifies the form and content of information that may be made available to the public by veterinary treatment facilities. The information includes the facility’s:

• Name
• Address
• Email
• Website
• Phone numbers
• Opening hours
• Range of services, and
• Affiliated veterinarians, which may include their degree or title, specialisation, and, if agreed with the regional veterinary chamber, also other qualifications.

Pursuant to the resolution, this public information must not have the characteristics of advertising or contain price information.

Moreover, information can be posted for example on a limited number of information boards within a certain radius of the facility, in the press, or on websites.

“Active” advertising is forbidden, such as:

• Distribution of leaflets, business cards, brochures or other advertising materials outside the treatment facility
• Distribution of announcements by post, internet or SMS
• Publication of commissioned or sponsored articles in the media
• Posters, other than mandatory vaccination announcements
• Large-format notices, i.e. over 4 m²
• Information on cars, buses or other means of transportation, except for vehicles used by the veterinary facility or its owner or manager
• Creation for advertising purposes of publicly available (e.g. online) presentations or videos of procedures or treatments
• Placement of information at public transportation stops.

It is also unacceptable to commission or sponsor media broadcasts or publications concerning a veterinary treatment facility.

Additionally, Resolution 80/2004/III of the National Veterinary Chamber of 11 May 2004 sets out detailed rules for labelling of veterinary treatment facilities (information boards).

How to stand out?

This raises the question of how a veterinary facility can conduct any marketing activities without violating these regulations.

First of all, it is necessary to define what advertising is. Unfortunately, the Veterinary Facilities Act does not define this term. But one can refer by analogy to Art. 4(17) of the Broadcasting Act, which defines advertising as a commercial message, originating from a public or private entity, in connection with its business or professional activity, aimed at promoting the sale or use of goods or services for a fee, as well as self-promotion.

It is recognised in the case law that a message should be considered advertising if it is found that the encouragement to purchase goods outweighs the informational layer of the message (Supreme Court of Poland judgment of 2 October 2007, case no. II CSK 289/07). When identifying the presence and intensity of this persuasive element, the context of the message must be taken into account (Supreme Administrative Court judgment of 31 May 2022, case no. II GSK 85/19).

As indicated in the case law, when distinguishing between information and advertising, it must be borne in mind that the hallmark of advertising is not only a more or less explicit encouragement to purchase goods, but also the actual intention of the proponent and how the message is received by the target audience. A statement is advertising when the informational layer is outweighed by encouragement to purchase the product, in the purpose of the sender and how it is perceived by the average recipient to whom it is addressed (Supreme Court judgment of 2 October 2007, case no. II CSK 289/07).

Therefore, information provided by a veterinary facility must not be aimed at encouraging the use of its services, but should be purely informative.

It is unacceptable to provide information about discounts, or to use phrases such as “the best conditions,” “the nicest service” or “the lowest prices.”

It is considered acceptable for veterinary facilities to operate a website or maintain social media profiles, as long as the content posted is not in the nature of advertising.

On websites, it is also permissible to provide the names of veterinarians working at the facility, with information on their professional qualifications, and to maintain a blog with comments by veterinarians on topics of interest in this field.

Kacper Czubacki, adwokat, M&A and Corporate practice, Wardyński & Partners

Marcin Rytel, Life Sciences & Healthcare practice, Wardyński & Partners