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RULE §164.5Advertising Records and Responsibility

(a) Any and all advertisements are presumed to have been approved by the licensee named therein.

(b) Each licensee who is a principal partner, or officer of a firm or entity identified in any advertisement, is jointly and severally responsible for the form and content of any advertisement. This provision shall also include any employees acting as an agent of such firm or entity.

(c) If photographs or other representations of actual patients are used in advertising, there must not be communication of facts, data, or information which may identify the patient without first obtaining patient consent.

(d) A recording of every advertisement communicated by electronic media, and a copy of every advertisement communicated by print media and a copy of any other form of advertisement shall be retained by the licensee for a period of two years from the last date of broadcast or publication and be made available for review upon request by the board or its designee.

(e) At the time any type of advertisement is placed, the licensee must possess and rely upon information which, when produced, would substantiate the truthfulness of any assertion, omission or representation of material fact set forth in the advertisement or public communication.

(f) It is hereby declared that the sections, clauses, sentences and parts of these rules are severable, are not matters of mutual essential inducement, and any of them shall be exscinded if these rules would otherwise be unconstitutional or ineffective. If any one or more sections, clauses, sentences or parts shall for any reasons be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part in any one or more instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance.

Source Note: The provisions of this §164.5 adopted to be effective May 21, 2000, 25 TexReg 4348

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