Advertising of Company - Case No. 78-8
Example 1:
John Smith, P.E., a principal of a consulting engineering
firm, proposes to purchase and distribute wall calendars to
clients and prospective clients in the fall of the year. On
each page of the calendar will be printed: Smith &
Associates Consulting Engineers 124 Main Street Capitol City,
Michigan Phone 123-345-5678.
Example 2:
Roger Roe, P.E., a principal of a research and development
company, proposes to purchase and distribute pencils to present
and potential clients. Each pencil will be inscribed: Acme
Research & Development Company Columbia, Mississippi.
Question:
Is the type of advertising stated above permissible under
the Code of Ethics?
References:
Code of Ethics Section 3(a) "The Engineer shall not make
exaggerated, misleading, deceptive, or false statements or
claims about his professional qualifications, experience, or
performance in his brochures, correspondence, listings,
advertisements, or other public communications." Section 3(b)
"The above prohibitions include, but are not limited to, the
use of statements containing a material misrepresentation of
fact or omitting a material fact necessary to keep the
statement from being misleading; statements intended or likely
to create an unjustified expectation; statements containing
prediction of future success; statements containing an opinion
as to the quality of the Engineer's services; or statements
intended or likely to attract clients by the use of
showmanship, puffery, or self-laudation, including the use of
slogans, jingles, or sensational language or format."
Discussion:
The series of earlier cases dealing Advertising Calendars
Pencils Case No. 78-8
with the ethics of the advertising of engineering services is
no longer applicable to provide precedent or guidance. In July
1978, the Board of Directors amended the code to conform to the
constitutional limitations on restrictive ethical standards of
the advertising of professional services as established by the
Supreme Court of the United States in Bates v. State Bar of
Arizona. In that case, the Supreme Court ruled that under the
First Amendment it is not permissible for either private
organizations or public agencies to totally prohibit the
advertising of professional services, but that certain
limitations could be placed on such advertising, such as
statements which are deceptive or misleading, and that
reasonable restraints may be placed on claims of quality of
services. And the Court indicated that it would be permissible
to require that professional advertising be "restrained." The
revised NSPE code provision on advertising, based upon a study
of revised wording on the advertising issue by other
professional societies and changes adopted in federal agency
regulations governing advertising by attorneys practicing
before those agencies, is intended to comply with the criteria
enunciated by the Supreme Court. In effect, it widens the door
for engineering advertising over the previous code provisions,
but still retains some restrictions as permitted by the Bates
decision. With that brief background, we are now required to
consider cases on specific fact situations, such as the ones
before us, to establish new concepts and guidelines on
permissible forms of engineering advertising. In these two
examples we are primarily concerned with the restrictions
related to "showmanship", and "format." While there is no
definition of either term in the code itself, we take it that
"showmanship" relates basically to the idea that professionals
should not promote their services by exhibitions or similar
forms of broad-scale presentations to the general public or to
those with whom there is no present or anticipated future
relationship. Such is not the case in the two fact situations
under consideration. The format of material appearing on the
calendars and pencils in question is presumed to be in good
taste. Both the calendars and pencils are to be distributed
only to persons or organizations with whom the engineering
firms have either direct contacts or a reasonable prospect of
future relationships. The restriction of "format" must be read
in conjunction with "sensational." While it is contrary to the
previous code to allow the promotion of professional services
by such devices as calendars and pencils, and the like, we
cannot say these means are considered to be of a "sensational"
format. Under the mandate of the Supreme Court the
"traditional" restraints self-imposed by the professions have
crumbled to a substantial degree, and the professions,
engineering included, must now live within the more "liberal"
standards and concepts. Future cases will likely elucidate the
meaning and application of the advertising restraints remaining
in the code. Meanwhile, the advertising devices in the two
examples before us must be recognized as permissible.
Conclusion:
*The type of advertising stated above is permissible under
the Code of Ethics.
Board of Ethical Review:
- Louis A. Bacon, P.E.
- Robert R. Evans, P.E.
- James G. Johnstone, P.E.
- Robert H. Perrine, P.E.
- James F. Shivler, Jr., P.E.
- L.W. Sprandel, P.E.
- Donald C. Peters, P.E., chairman.
Note: This opinion is based on data submitted to the
Board of Ethical Review and does not necessarily represent all
of the pertinent facts when applied to a specific case. This
opinion is for educational purposes only and should not be
construed as expressing any opinion on the ethics of specific
individuals. This opinion may be reprinted without further
permission, provided that this statement is included before or
after the text of the case.
1996 NSPE Code of Ethics
This is the version of the code archived in the OEC. An earlier
version may have been used in this case.