By Tara Hoke
Situation
An ASCE member prepares and organizes a review course for candidates planning to take the Fundamentals of Engineering Exam. The ASCE logo is featured prominently on the course brochure and other materials distributed by the member in promoting the course. Although the placement of the ASCE logo conveys the impression that ASCE has sponsored or at least sanctioned his course, the member has never requested or received ASCE's permission to use its name in connection with the offering. In fact, ASCE learns of the member's activities only when another member forwards the course brochure to the national office and voices concern that the program organizer has, in violation of ASCE's bylaws, misused the Society logo. An ASCE staff member forwards the course brochure and the organizer's name to the Committee on Professional Conduct (CPC).
Question
Is it a violation of ASCE's Code of Ethics for a member to publish advertising materials giving the impression that his or her review course has been sponsored or endorsed by ASCE?
Decision
Category (f) in the guidelines to practice for canon 5 of the Code of Ethics reads as follows: "Engineers may advertise professional services in a way that does not contain misleading language or is in any other manner derogatory to the dignity of the profession." This proscription on misleading advertisement follows logically from canon 5, which bars engineers from competing unfairly with others. However, it is not unrelated to canon 3, which has this to say: "Engineers shall issue public statements only in an objective and truthful manner."
While category (f) in the guidelines to practice for canon 5 indicates that certain advertising practices may constitute an ethics violation, it is interesting to note that the current language on ads for professional services is considerably less restrictive than in previous versions of the Code of Ethics. By way of contrast, canon 6 of the 1976 Code of Ethics read as follows: "It shall be considered unprofessional and inconsistent with honorable and dignified conduct for any member . . . to advertise engineering services in self-laudatory language, or in any other manner derogatory to the dignity of the profession." As in many other instances, this change in the breadth of ASCE's ethics provisions came as a result of new interpretations of federal antitrust law.
In 1976 the U.S. Supreme Court struck down a regulatory provision of the Virginia Board of Pharmacy that deemed it unethical for pharmacists to advertise the prices of prescription medicine. Although the Supreme Court based its decision on the pharmacist's First Amendment right of free speech, its observations on a consumer's right to receive truthful information before selecting professional services appear to have been greatly influenced by the antitrust rationale of "preserving free competition in the marketplace." Moreover, because the First Amendment does not apply to acts of private entities such as trade associations, subsequent holdings by the court used antitrust law as a means of compelling private associations to limit or remove ethics provisions against advertising.
In the early 1990s ASCE was one of a number of professional organizations advised by the Department of Justice that it deemed ethical bans against "self-laudatory" advertising to be a violation of federal antitrust law. The department believed that as long as an advertisement was not false or deceptive and did not serve in some way to mislead the consumer with respect to the products or services offered, "self-laudatory" language was a valuable element in the free flow of information in the commercial marketplace and thus was subject to the protections of antitrust law. In response to the views expressed by the Department of Justice, in April 1993 the Board of Direction approved the removal of the term "self-laudatory" from the Code of Ethics and substituted the revised guidelines on advertising that exist in the code today.
With regard to the member's use of the ASCE logo on promotional material, although the facts of the case suggested a potential violation of canon 5's ban on false advertising, the CPC chose instead to investigate the claim as a "public statement" in relation to canon 3 as well as a possible violation of canon 6, which reads as follows: "Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the engineering profession." The CPC found that the member's actions in misrepresenting Society sponsorship of his course violated both canons and voted to issue the member a letter of admonishment.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, March, 2008
