Dr. Leon Klempner

Leon Klempner, DDS, CEO of People + Practice

In the rapidly evolving landscape of artificial intelligence (AI), the integration of AI-generated images in orthodontic marketing demands careful consideration of ethical standards and legal implications. As generative AI finds its way into advertising, concerns about transparency and compliance with Federal Trade Commission (FTC) guidelines are at the forefront.

Understanding FTC Guidelines

To ensure orthodontic practices remain compliant, Trey Lawrence, VP and General Counsel at the American Association of Orthodontists, emphasizes the likelihood of the FTC requiring disclaimers for AI-generated imagery. These disclaimers would clarify that the images do not represent actual patients or treatment results. Drawing parallels with the FTC’s approach to weight loss product advertising, Lawrence stresses the importance of evaluating both explicit and implied claims in AI-generated content.

“Two examples involving weight loss products are similar to the concept of AI-generated imagery discussed,” Lawrence said. “In one example, a hypothetical situation discussed in its Health Products Compliance Guidance document, the FTC states, ‘A brochure for a weight-loss product shows images of doctors in white lab coats looking through microscopes, molecular structures, and a stack of medical journals. These images give an impression of scientific legitimacy and likely convey an implied claim that the product has been clinically proven to be effective for weight loss.’”

In the second case, an actual FTC case, the manufacturer of an ab stimulator device was fined by the FTC for false advertisement. Included among the false representations was the fact that photos of muscular models who did not actually use the product created the implied representation that the product led to their high muscle tone and definition.

“In looking at whether any healthcare-related advertising is false or misleading, the FTC looks at both ‘express and implied claims’ in the advertising,” Lawrence added.

Lawrence suggests two potential exceptions to regulatory scrutiny. First, AI-generated images not implying treatment success may be exempt. For example, showcasing a positive atmosphere with happy individuals in the office. However, the overall impression matters, and reasonable consumer understanding is pivotal. The second exception involves incorporating clear and conspicuous disclaimers stating that the images are AI-generated and do not represent real patients or outcomes.

To minimize risks associated with AI-generated images in advertisements, orthodontic practices should:

Review Advertising Content: Scrutinize all content, ensuring it avoids implying treatment success or making misleading claims. Consider both explicit and implied claims, assessing the overall impression conveyed by the advertisement.

Implement Clear Disclaimers: Heed Lawrence’s advice by including explicit disclaimers stating that the images are AI-generated and do not represent actual patients or treatment outcomes. Place disclaimers conspicuously for viewer awareness.

Stay Informed: Keep abreast of FTC resources such as “Health Products Compliance Guidance” and the guide on “Disclosures in Digital Advertising.” Regularly update knowledge on regulatory changes or additional requirements related to healthcare advertising for compliance.

Challenges and Risks in AI Content Creation

As AI becomes more prevalent, challenges and risks come to the forefront. Congress’ oversight hearings on AI rules this year shed light on concerns about liability among lawmakers. There was a lot of discussion around liability in AI-generated content and who is responsible for it.

While we might hand some of the creative output off to AI instead of hiring a photographer and models or an illustrator to produce imagery, the burden then comes to us to become editors of that content and make sound decisions about best practices and use. You might have cut out the creator but you haven’t given up responsibility for the creation.

Considering that AI relies on existing data, copyrighted or not, issues of accuracy and potential misuse arise. Is your AI image looking a little too much like Brad Pitt? That could be a problem as well. The FTC actually calls this the “the AI fake problem.” Don’t unintentionally use your AI image to mislead people into thinking that your image implies a celebrity endorsement.

“Celebrity deepfakes are already common, for example, and have been popping up in ads,” the FTC has said. “We’ve previously warned companies that misleading consumers via doppelgängers, such as fake dating profiles, phony followers, deepfakes, or chatbots, could result – and in fact have resulted – in FTC enforcement actions.”

Ever more powerful AI systems are being developed in a kind of 21st Century space race, one whose implications are not clearly understood as of yet. Back in March, this prompted some heavyweight tech leaders like Elon Musk to put their names on a letter along with policy recommendations calling for developers to pump the brakes on even more powerful AI tools before it could be more closely scrutinized.

Final Thoughts

While the AI debate continues, the prevalence of AI-generated images in orthodontic marketing is undeniable. As AI tools continue to advance, orthodontic practices must navigate these challenges, prioritizing patient safety, ethical considerations, and compliance with evolving legal standards. Transparency, as emphasized by Trey Lawrence and the FTC, can be achieved by carefully reviewing advertising content, incorporating clear disclaimers, and staying informed about regulatory expectations. By doing so, orthodontic practices can ensure they navigate the ethical and legal challenges associated with AI-generated imagery, safeguarding the interests of potential patients in an evolving digital landscape.

Do you want to know more about this topic? Click here to download People + Practice’s white paper, “Tips to Minimize Risk When Using AI-generated Images in Your Marketing.”