We're thrilled to welcome Trey Lawrence as our special guest. Trey serves as the General Counsel for the American Association of Orthodontists. While AI-generated images are commonplace in daily marketing, it's essential to consider the potential risks associated with this advertising approach. Trey will delve into the legal aspects, obstacles, and potential pitfalls of incorporating AI in your orthodontic practice advertising. Additionally, he will touch upon the insights provided by the FTC and state dental boards. If you have an orthodontic practice, this episode is a must-listen, and as always, there has never been a better time to be an orthodontist.
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EPISODE TRANSCRIPT
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GAOO Episode 53 - Using AI-generated Images in Your Marketing? Tips to Minimize Risk! - Transcript
(00:00:00) Amy Epstein: A few months ago, my dad called me because he was on one of the orthodontic Facebook groups, and there was some commentary around a recent post that was suggesting perhaps AI generated photography could be used in marketing moving forward. There was a lot of back and forth on it. And we started talking about how we really do need to learn more about all of the ramifications of AI in marketing for orthodontists.
So we're super thrilled to have Trey Lawrence, the VP and general counsel of the AIO on the show today. Stay tuned.
(00:00:39) Narrator: The future of orthodontics is evolving and changing every day, but although the way to achieve practice growth has changed, there's never been a better time to be an orthodontist. Let's get into the minds of industry leaders, forward thinking orthodontists, and technology insiders to learn how they see the future of the orthodontic specialty.
Join your hosts, Dr. (00:01:00) Leon Klempner and Amy Epstein each month as they bring you insights, tips, and guest interviews focused on helping you capitalize on Eyes on the opportunities for practice growth. And now welcome to the Golden Age of Orthodontics with the co-founders of people and practice, Dr. Leon Klempner and Amy Epstein.
(00:01:20) Dr. Leon Klempner: Welcome to the Golden Age of Orthodontics. I'm Leon Klempner, a retired board certified orthodontist, the director of Grandio Facial Orthodontics at the Icahn School of Medicine at Mount Sinai, part-time, faculty at Harvard Dental School, and of course the CEO of people and practice.
(00:01:41) Amy Epstein: And hi, I'm Amy Epstein.
I'm the COO of People in Practice. We are a digital marketing consultancy for orthodontists that we started up to help practices differentiate themselves in their communities in order to grow. The key to much of what we do Is (00:02:00) consultation, and that means having relationships and resources across the orthodontic industry so that we can make informed recommendations.
We can solve problems, make introductions when our clients come to us with questions. And so, as I mentioned earlier, one of those questions recently that has been coming up is about the use of AI and orthodontic marketing. And although we love to think we have all the answers, Uh, we sometimes don't, and so we're thrilled to have Trey Lawrence on the show today.
I mentioned that he's the VP and General Counsel for the American Association of Orthodontists, and before joining the AAO, he practiced with a large law firm in St. Louis for just about 15 years, concentrating in litigation and regulatory matters. Trey is with us to talk about some of the challenges and pitfalls of using AI in orthodontic practice.
Um, he's incredibly qualified to speak on the topic as you can imagine, and we're thrilled to have him here. Trey, thank you for joining us again. It's great to have you back on the show.
(00:02:59) Trey Lawrence: Absolutely. (00:03:00) It's always great to be with you guys.
(00:03:03) Dr. Leon Klempner: So Trey, um, first of all, welcome back. And so it should be no surprise that as a marketing agency, we're really careful about we post on what we post on behalf of our clients.
But you know, we know that. Many of those, uh, orthodontists and staff that are watching and listening, they do their own in house, uh, marketing. So, I wanted to know what your thoughts were about AI in orthodontic marketing.
(00:03:34) Trey Lawrence: No. So AI is, I think you allude to AI can be an incredibly useful tool. So many of these technological tools that are coming along, even outside of just the marketing, the clinical tools too, they provide so many opportunities to orthodontic practices, but with AI, All of these new technologies come, the challenges of regulating them and the AI, the use of AI, whether it's in the AI generated imagery or AI driven chatbots is another (00:04:00) topic in this area that is drawing some regulatory attention from the government, but these are far from settled issues.
And so the challenge is always when you're trying to move forward. And use a technology or an approach, and there's not clear legal guidance by the appropriate agencies or the legislatures, then as a lawyer, the approach that we have to take, we have to start from the law that currently exists, which, because it's behind the technology is going to be outdated, but from that law, kind of extrapolate it out and then make a prediction as to what we think the safest course of action is going to be.
And so, unfortunately, I would love to come on. Talk about a topic like this and tell you, here's all the, you know, the 10 rules that the FTC has put in place on this. We're just not there yet from the regulatory side. And so we do have to look at what the, what these agencies have done in the past and then extrapolate it out to the future, try to predict where they're going to go in the future.
(00:04:56) Amy Epstein: So, I mean, so there isn't a clear guidance set yet. So (00:05:00) what, um, what can we look to right now? Are there any sort of similar cases that you can. Look at and say, well, that's kind of similar, or we might be able to take some guidance from here to predict what might happen with regard to some guidelines in the future.
(00:05:17) Trey Lawrence: Yeah, definitely. So 2 places that we're going to look for that. 1st the FTC because the FTC has jurisdiction over. Consumer based advertising generally, and then we do need to also look and make sure we know what the state dental boards do or don't say on this because they do have obviously some, some authority over dental practice advertising to the, so on the dental board side, it's very, you know, there's very little there.
It just. Other than to remind all of the practitioners that dental boards do hold dental practices and certainly orthodontic practices to a higher standard of truthfulness, even than other businesses are required to adhere to in their advertising. So that's certainly a piece of it. And then I think that translates (00:06:00) over to the FTC and looking at what the FTC has done in this area.
Uh, and, and just assume that dental. practices and orthodontic practices are going to be held at least to that standard, you know, if not higher, because again, the, the higher standard that's placed on them by the dental boards. So the FTC in this area specifically, I think the closest analog, we don't have any precedent as far as AI generated images.
We do have a lot of precedent on. Images generally and implicit or implied messaging through those, through the pictures. So what is it, not just what are your express, you know, what are you specifically saying in your advertising claims, but what are your pictures? What otherwise does your ad imply? And that is where some, there's some precedent on the FTC side.
So the FTC has said that all advertising by any business, whether it's express or implied, needs to be truthful, needs to be straightforward on anything. thing that a consumer would consider it to be material or important. And (00:07:00) so in looking at those pictures specifically, um, and we do thankfully have a little bit of precedent specifically within the healthcare arena here.
It's a couple of analogs. One is there's a line of FTC cases and some guidance by the FTC where they look at things that maybe imply a higher level of. Education or scientific research and specifically white coats, they're very big on white coats. So anything that anybody says where they're in a white coat and they make a scientific type of claim, the FTC says there better be evidence to support that claim because by using the white coat.
Uh, you know, or microscopes or anything else like that and implies a higher level of scientific credibility that the public is going to be more inclined to believe what you say in that context. And so that's 1 instance where the FTC has looked at implicit claims in advertising the other 1. And I think this is most directly relevant to the type of AI generated imagery that we're talking about orthodontic practices are weight loss (00:08:00) advertisements.
And so the classic scenario is you have a. infomercial that goes up that's advertising a weight loss product and they have all these great looking models who have the ripped abs and are just in amazing physical condition. The FTC has said we believe that consumers would look at an advertise like like that and assume that those models are in that great condition because they use this weight loss product.
And so because of that the FTC has said that advertisers use it kind of image either they to put a disclaimer in. If, if those models didn't in fact use that product, the FTC says you've got to have a disclaimer that says that the models that are shown in the advertisement did not actually use, um, the product.
So I think that's where when we turn back to our orthodontic practices and looking at the ads that they use, are they going, is the picture, an AI generated picture, is that going to imply a. A material fact about the practice, does the, you know, is it (00:09:00) showing somebody who either has perfectly straight teeth, or is it showing somebody who, you know, is wearing braces, but they're not actually a patient in the practice because of course, it's an AI generated image and they don't actually exist at all.
Those are the kind of things that I think that the FTC could look at. AI generated imagery and orthodontic practice marketing and say, is it making implied claims through those pictures? And if so, you may need to do something about it,
(00:09:27) Amy Epstein: right? I mean, the question that comes to mind for me is, you know, um, talking about implied claims.
So as it applies to orthodontics, let's say we're showing photos of. of people with straight teeth were implying that if you go to this practice that you could have this sort of an outcome. Um, it's, you know, that is the type of outcome that happens when you go to an orthodontist. So I'm thinking that maybe we're in a little bit, uh, of a different territory there.
But My question really is about what does that mean for, for also for (00:10:00) stock photography, people who actually didn't go through the treatment of that practice because stock photography is in wide use for advertising and it's been for a long time, you know, is there any. Has there ever been this sort of situation, not around AI generated imagery, but issues relating to stock?
(00:10:20) Trey Lawrence: No, that's a great question. And that's really the precedent that we have to look at. And there is some, there is some law and some guidance out there by the FTC and even back to those weight loss ads or the, you know, somebody in a lab coat with the microscope there. Those, those may be, those are essentially the same as stock images.
There are things that were not filmed many times specifically for. That product. Um, so in those cases, I think that all of the same analysis that we're talking about, about AI generated images specifically, but also apply to just traditional stock imagery. And again, that's where, if you have a picture of somebody that has.
Perfect teeth, perfectly (00:11:00) straight teeth, and they're not actually a patient at the practice. I think the FTC would say that a consumer, clearly a consumer picking out an orthodontic practice, the successfulness of treatment is an important material fact to them. And they would want to know if the person shown in that picture didn't actually get those perfectly straight, great looking teeth at that practice.
(00:11:23) Amy Epstein: Mm-Hmm. . Mm-Hmm. . Interesting. Okay.
(00:11:26) Dr. Leon Klempner: So, uh, so Trey, uh. So, to me, the takeaway here is if you're an orthodontist, don't wear a white coat, look in a microscope, or for aligners is a way to lose weight. I think that will get you into trouble very quickly, but Trey, uh, you know, it's customary if you recall that we have, uh, one of our listeners.
Uh, pose a question. So, uh, I'm going to play that right now for you.
(00:11:52) Trey Lawrence: Hi, my name is Jenna Schneider and I'm an orthodontic resident at West Virginia University. What is the AAO position on AI use? (00:12:00) What about in general? Are there any guidelines being created by the AAO to advise orthodontists? Thank you so much.
Yeah, that's a, that's a great question. I, again, I'd love to say, oh, the AA, you know, go to our website, the member website, and here's the link, and we've got specific guidance on it. But because we are, we're obviously as an organization, we're going to defer very heavily to any government agencies that have that information.
Authority over these areas, then we're going to have to sit back and wait, unfortunately, on what the FTC in particular, if there's any state that tackles this issue, too, we're going to need to wait and see what they do before we would issue any kind of an organizational policy, because ultimately, our organizational policy is going to be if there's applicable law that you need to follow the law, but we Thank you.
We have to wait and see what that law is on some of the things, you know, all of these, all these areas where we encounter technology outpacing regulation. That's always a challenge for us as an organization. I think when it's something that's more purely clinical in nature, (00:13:00) like for instance, some of the teledentistry and remote monitoring technologies that are also posing regulatory challenges because the AO, you know, we have the greatest minds in the world that are our faculty members and researchers and, and the, um, The people who are making the clinical recommendations, it's easier for us and something like that.
And the AO is currently tackling the, the remote monitoring and the teledentistry and those things. And in fact, in most recently adopted clinical practice guidelines, um, there were some recommendations that were changed. With respect to those technologies. So we don't need to wait on the government agency so much there.
But these advertising and things that are more purely a business type of concern, we unfortunately have to wait and see what the with the government agencies do in this before we can make a recommendation as an organization.
(00:13:50) Amy Epstein: I wonder if the, um, the AI we're talking about AI in imagery, and we haven't really talked about AI in terms of (00:14:00) Language either and I feel like that's a that's a totally different arena because it's it's harder to tell if something is developed by A. I. or not, but it has or has there been in the same vein?
Has there been discussion about a I generated content? That's not imagery in in the realm of advertising and marketing.
(00:14:21) Trey Lawrence: Yeah, I haven't, I haven't seen so much attention to on the written content itself yet, although I've seen in the legal world, there's already some questions coming up about if you, you know, if you use an AI tool to generate written content, do you have the right of copyright ownership over that?
And I think that's completely unclear at that at this point. So that's going to be hanging out there. I think the one language area Uh, that I have seen some, some legal and regulatory attention, at least recognizing that there's an issue there that needs to be addressed so far as the kind of the chat bot type of AI tool and there are, there is a little bit of energy in Congress and (00:15:00) in the FTC on if a consumer gets on a website and there's a chat type support function and that's actually a chat bot behind the scenes that there may need to be an upfront disclosure, um, to the, um, The customer that they're in fact talking to a chatbot and not talking to a live human being.
Um, again, there's not been a final rule that's gone in place yet, but there have been one or two congressional hearings on that topic so far. So I think that's the sexier topic on the language content that they'll address first, and then hopefully they'll turn to the more of the written. Work product type of AI generated content after that,
(00:15:39) Amy Epstein: it seems like misrepresentation is the common thread, though, uh, you know, just whatever is being generated.
It's got to be clear what the intent was or what the what you're trying to convey and that you're not trying to convey something. That's not what you're either going to deliver or what, um, you know, you can claim as being yours. So (00:16:00) very
(00:16:00) Dr. Leon Klempner: interesting. So trade. Um, I would say as an orthodontist, uh, there are a few things that I, three things that I don't want to hear.
One is you've been served. Another one would be, hi, I'm from the IRS. And I think the third one would probably going to be, hi, this is the Federal Trade Commission. So, you know, I went on the, the FTC's website, and I saw a quote there. And the quote said, hold yourself accountable or be ready for the FTC to do it for you.
So I'm just curious, what are the penalties? What are, you know, what happens, let's say, you know, if they, if they call and they challenge something that you've done, are there penalties that can be assessed?
(00:16:47) Trey Lawrence: Yeah, there, there absolutely are, unfortunately. And, uh, the other piece I'll throw into this too, because I know, you know, if you say you have a relatively small orthodontic practice, you're.
Natural line of thinking may be, (00:17:00) well, you know, are the FTC really going to hunt me out and find me, you know, there's all the Amazons and Googles and Walmarts of the world. Aren't they really going to focus their attention on these big giant companies? Are they really going to come after, um, a small practice like ours?
And the, ironic enough with this AI topic, one of the AI capabilities that also comes with this AI technology is that increased ability to have an AI, type of smart function scanning the internet and finding these kind of things. And I mention that because there's been some recent, um, HHS cases on the HIPAA side, where my understanding is that they did use scanning technologies to discover some instances where, in those cases, dental practices were disclosing, improperly disclosing HIPAA protected information and responding to patient reviews online.
And so, Um, I think the assumption has to be that if you are online, if you have publicly viewable content online, that some government agency, unfortunately, probably (00:18:00) has this scanning technology to eventually run across what you're doing. So with that being the case, the standard in all of this is truthfulness.
And if, and if. It is likely that a patient is going to assume something, then making sure you have disclosure language to let them know that they shouldn't be assuming that. So in this case, um. The, the, where the AI generated imagery of the FTC could potentially determine that it's reasonable that a patient could look at your website and assume that that bright smile that's on the front page was a person that actually treated at your practice and they would not assume that's an AI generated image.
Then you need to have some disclaimer language somewhere on your website that says that images used in The, the website may, um, have been generated through AI technology or something like that. Again, I wish I had better, um, more specific guidance to offer on that. And the, the FTC does have guidance on (00:19:00) making sure that disclaimer language is clear and conspicuous, but of course they don't have any.
Guidance yet on what specific content needs to be in the disclaimer language on this AI generated imagery issue.
(00:19:13) Dr. Leon Klempner: So Trey, can you, can you share, I mean, I don't want to put you on the spot, but has there been orthodontists that have been challenged with by the FTC or If not, have there been medical practices that have been assessed penalties?
And are we talking about, you know, a few thousand, tens of thousands? I mean, what are we talking about here in terms of liability?
(00:19:38) Trey Lawrence: Yeah, I, so I've not seen any. I, I focus a lot of my research kind of the scanning idea of focus just on dental practices and really because that's the closest analog obviously to our orthodontist members.
I have not seen any cases yet, knock on wood, where a dental practice has been. Um, you know, it has had a complaint launched (00:20:00) against it by the FTC or has been penalized by the FTC. To me, again, the closest analog is HHS, the department of health and human services, which oversees enforcement of HIPAA and they have the, the, the penalties are usually in the same range as like the federal trade commission act.
Um, and. They, they're obviously because they have solely healthcare practices to focus on under their jurisdiction, there have been those cases where HHS has penalized dental practices. So, I've not looked at the underlying cases closely enough to see what the HHS was originally seeking, but I have seen the settlement agreements that they conclude the investigation with these practices.
And so the fines have been in the. 50 to 100, 000 range for improperly disclosing HIPAA protected information in responding to a patient's online complaint or an online review or those kind of things. (00:21:00) And so again, until something more specific comes along, I think that is probably in line with the kind of penalties that the FTC would seek against a dental or an orthodontic practice if they were investigating a violation.
Related to the AI generated image or any kind of other implied claims through images. So it's certainly, you know, it's not the, it's not the dollar range that might put your practice out of business, but it is absolutely the dollar range that could be very, very painful for your practice. In addition to.
Dr. Klemner, to your point about not wanting that call to come in, that call comes in and then you have to hire a lawyer and you have to respond to discovery requests and you have to turn over records from your practice. And a lot of the time and trouble of that is nearly as painful as the dollars themselves.
(00:21:51) Amy Epstein: Trey, just one more question for you, which is, has there ever been anything so (00:22:00) revolutionary in terms of. How different it is to keep up with guidelines and regulations like this is such a different animal that's coming into play right now. And that's the reason why there's such a gap between the technology improving and the regulations and guidelines keeping up because it's just a moving target.
I imagine. Um, is there any, anything else that you can think of that was, that is like this?
(00:22:28) Trey Lawrence: Yeah, I really can't. I think that the AI technology in general. In so many ways is creating such a dilemma for regulators and legislators, because with, with nearly any behavior in the past that these agencies have ever looked at, there's always a live human being that's ultimately responsible for it and AI.
You know, unless you take the leap to hold the developer of the technology responsible, which I think is probably not likely, then it becomes, it's such a challenge of where is the live human being? I mean, that's (00:23:00) exactly the discussion that we've had so much of on the teledentistry side and looking, you know, at these mail order orthodontic treatment models where there's a AI generated treatment plan that's cranked out and then essentially no doctor oversight.
And then, uh, uh, clear aligners get shipped to your home. Again, this. The exact same issue these dental boards have had to wrestle with was who is the live human being at the end of the chain that's ultimately responsible for this. And so I think as we get into AI generated imagery, um, the written content, all of those things, the chat bot that's maybe, you know, telling patients something that doesn't legally comply, you know, who's the live human being that's responsible for that.
I think that's the underlying challenge with all of this, and I just can't think of anything. Honestly, you know, in the history of the U. S. government, where there's not a live human being that was responsible for it at the end of it. So these are going to be fascinating times. I mean, certainly from a legal and ethical perspective, working through these issues, but for the (00:24:00) practices that are on the ground and have to make sure they don't get sued and don't get the FTC calling, fascinating.
is not the word you want to hear. I mean, you want some certainty so you can make sure you're in compliance with the law and it's going to, it's going to require some waiting while these, these regulators work through these issues.
(00:24:18) Amy Epstein: Trey, as always, thank you so much. This has been very insightful, very helpful.
We hope to have you back again to talk about this and more in the near term as things change and we learn more. If we have listeners that have questions for you directly, uh, aside from Following you on Tik Tok at the ortho attorney, or it's the same on Instagram at the ortho attorney for, for tips and things like that.
How can people reach out to you if they have some questions?
(00:24:46) Trey Lawrence: So, for those orthodontists who are AO members, there's a legal resource center on AO member website, and there is a form that you can fill out with your contact information, type in a question, hit send that comes to the attorneys, us attorneys (00:25:00) here in the legal department at the AO, and one of us will get back to you.
Perfect.
(00:25:04) Amy Epstein: Perfect. Well, thanks again for joining us. Always good to see you. Always great insight, Trey. Appreciate it. Yep,
(00:25:10) Trey Lawrence: absolutely. Thank you guys.
(00:25:12) Amy Epstein: You can subscribe or download other episodes of the Golden Age of Orthodontics on Apple Podcasts, Spotify, SoundCloud, and if you want to look at us on YouTube or wherever you get your podcasts.
And if you enjoyed it, as always, we'd appreciate it if you would tell a colleague. For more information about people in practice and the growth consulting and marketing that we do, you can visit our website at pplpractice. com or email either of us, Leon at pplpractice. com, Amy at pplpractice. com. We'd love to talk to you.
Thanks
(00:25:42) Dr. Leon Klempner: for watching and listening. At People in Practice, we are, of course, a full service marketing agency, and I'm very proud to say that we speak ortho. Remember, for forward thinking orthodontists, this has never been a better time to be. And orthodontists will take advantage. (00:26:00) We're in the golden age of orthodontics.
Bye for now.
(00:26:05) Narrator: Thank you for tuning in to the Golden Age of Orthodontics. Subscribe now on Apple Podcasts, Spotify, or visit our website at thegoldenageoforthodontics. com for direct links to both the audio and video versions of this episode.
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