Education Law § 5002(7) directs the Commissioner of Education to issue regulations and guidelines with respect to appropriate school advertising. The Commissioner has set forth regulations governing school advertising at 8 NYCRR 126.2(c) and 8 NYCRR 126.3. While the regulations require that advertising “conducted by or on behalf of a school shall not be false, misleading, deceptive or fraudulent and shall be consistent with the provisions of article 22-A of the General Business Law,” they also set forth additional requirements with respect to appropriate school advertising content.
It is incumbent upon on all schools to be honest in their advertising and promotional activities. Schools should not, even by omission, allow their schools to be represented in search engines or other electronic means in a manner inconsistent with the actual educational program being offered by the school. The school should make every effort to correct such incorrect search parameters, and must stay within the guidelines set forth regarding advertising and marketing.
The following guidelines will fulfill the statutory direction to the Commissioner to issue advertising guidelines specifically with respect to advertising content, in addition to general advertising regulations. The guidelines are illustrative, not determinative. If any question exists about whether a specific item of advertising is appropriate, the school director should consult with the Bureau of Proprietary School Supervision (BPSS) before publicizing it.
The guidelines are drawn from the regulations, and thus overlap them, but the regulations also contain additional obligations that relate to a school’s advertising beyond the content of the advertising itself. In addition, some of the regulations, such as those set forth at 8 NYCRR 126.3(d) – (f), and parts of 8 NYCRR 126.3(b), are either self-explanatory or have not yet raised issues of interpretation warranting further guidance. Accordingly, these regulations have not been elaborated in a guideline, though this could change. Schools, however, are always expected to be familiar with the Commissioner’s Regulations governing advertising that may be outside the scope of, or not referred to in, the guidelines.
Section 126.3(a) requires that advertising “conducted by or on behalf of a school shall not be false, misleading, deceptive or fraudulent and shall be consistent with the provisions of article 22-A of the General Business Law.” Article 22-A of the General Business Law is titled Consumer Protection from Deceptive Acts and Practices. Each school is responsible for being aware of and complying with the requirements of the New York State General Business Law.
8 NYCRR 126.3(b) requires that "[s]tatements and representations in all forms of advertising and promotion shall be fairly and clearly presented, accurate, and restricted to facts which can be substantiated.”
8 NYCRR 126.3(c) requires that “[e]ndorsements, commendations or recommendations from any person or persons, firm, corporation or other organization shall be used only with the identification and qualifications of such person, persons, firm, corporation or other organization (e.g., graduate, employer) and with their written consent[,]” and that “[t]he date of any such endorsement, commendation or recommendation shall be included in the advertising matter unless it is less than two years old.”
8 NYCRR 126.2(c)(1) prohibits representations by schools that assure or seem to assure “employment in any business, establishment or occupation.”
8 NYCRR 126.2(c)(2) prohibits “[i]ncluding in advertising or promotional material representations with respect to potential earnings in entry level employment or employment with experience, unless such representations can be documented for the graduates of the school.” It further requires that “[a]ll such advertising or promotional material shall include the number and percent of graduates employed at the advertised salary level listed by year of graduation and may be presented in conjunction with State and national labor statistics.”
8 NYCRR 126.2(c)(3) prohibits “[i]ncluding in advertising or promotional material representations of job placement rates, unless such representations can be documented with the data required under section 126.10 of this Part.”
8 NYCRR 126.2(c)(4) prohibits “[m]isrepresentations of the cost of instruction or of the education, experience or abilities required for successful completion of the course and the utilization thereof.”
Education Law § 224 prohibits any individual, association, corporation, or partnership from activities which “advertise or transact business under the name university or college, or any name, title or descriptive material…” unless empowered by the legislature or the Regents.
8 NYCRR 126.2(c)(5) prohibits the “[u]se of such phrases as “university,” “college,” or “professional school,” or other terminology which connotes an institution which confers the associate or higher degrees, except where the school has been authorized by the Regents to confer such degrees and has been authorized to use the word “college” in its corporate name pursuant to section 3.29(c) of this Title.”
§ 5002(7)(b) states that “all schools shall include in their advertising, promotional material, or letterhead the statement "Licensed by the State of New York", and an accompanying symbol to indicate such status…”
The following symbol has been designated to be used to comply with this requirement.
Additionally, no student may be compelled as a condition of enrollment, persistence, or completion of an ESL or Licensed Private Career School to allow their name, image or quotation to be used in an advertising or marketing campaign, advertisement, newsletter, video, still photograph, or other media. The school may seek voluntary participation in advertising or other marketing through a marketing release which can be freely refused by the student without negative consequences.