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Have you worked hard to cultivate your brand as a healthcare provider? If so, executing a Name, Image, and Likeness (“NIL”) agreement may be of interest to you. NIL agreements are contracts that allow an individual to profit from their name, image, and likeness. Specifically, these agreements protect an individual’s brand by defining how others can utilize their name, image, and likeness in advertisements, sponsorships, and endorsements, and the compensation the individual will receive as a result. NIL agreements are typically used in the context of athletics, such as enabling student-athletes to profit from their personal brand. However, NIL agreements have recently proved to be useful in other areas. For example, some healthcare providers have begun to utilize NIL agreements to promote the brand they have created through their healthcare practice.  Most recently, we have seen the most healthcare NIL activity with longevity and wellness providers, as well as orthopedics.  

Depending on who wishes to contract with a provider for NIL rights, there can be regulatory concerns.  Remember, healthcare is one of the most regulated industries in the United States!  If there is the potential to generate referrals for services that will be paid by a government health plan, NIL agreements must comply with applicable regulations that limit when and how a healthcare provider can accept payment for certain referrals, such as the Anti-Kickback Statute and the Physician Self-Referral Law, commonly known as the Stark Law. Conversely, if there are no third-party reimbursements possible (i.e. a contract with a sporting goods store), then the regulatory landscape looks different. In addition, any anecdotal information the healthcare provider chooses to share is subject to the Health Insurance Portability and Accountability Act (“HIPAA”), meaning that all identifying patient information must be removed.  

The Federal Trade Commission (“FTC”) also has standards that healthcare providers must follow when advertising. Healthcare providers should ensure that any NIL agreements meet the FTC standard for medical advertising, and that any statements made by the healthcare provider are true, not materially misleading, and are supported with scientific evidence.       

We recommend engaging an attorney to draft or review your healthcare NIL agreement to ensure that it complies with the complex and changing regulations, and that it ultimately protects your interests.

To learn more about how healthcare NIL agreements could impact your practice, please contact BMD Member Jeana Singleton at jmsingleton@bmdllc.com or 330-253-2001.