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January 2019
How to Strengthen Your Marketing Support
On Ethics: You Be the Judge

January/February 2019

On Ethics: You Be the Judge
How to Strengthen Your Marketing Support

Situation

A contractor, who is a professional engineer, retains an engineer to assist in residential foundation design. The engineer is asked to design and seal the footing for basement walls and designs a spread footing to support the basement walls, which she believes is the appropriate design. The contractor reviews the design and rejects it, instructing the engineer to include 10-foot piles under the footings. The engineer advises the contractor that the 10-foot piles would provide an overly conservative foundation for the structure. The contractor insists that the engineer’s design include the 10-foot piles under the footings. The engineer later learns that the contractor’s insistence on including the 10-foot piles was because the contractor wished to advertise the enhanced structural support in his marketing material.

What Do You Think?

Was it ethical for the contractor, a professional engineer, to insist on including the 10-foot piles under the footings? Would it be ethical for the contractor to advertise the enhanced structural support in his marketing material?

What the Board of Ethical Review Said

When engaged in promotional efforts, professional engineers have an obligation to engage in truthful and nondeceptive communications. Throughout the history of the NSPE Board of Ethical Review, the board has decided a wide variety of related cases. It is important to note at the outset, however, that as a general matter the NSPE Code of Ethics or other restrictions on nondeceptive advertising have been found to be unlawful by the US Supreme Court and federal enforcement agencies. Therefore, it is clear that the board may pass judgment only on advertising that is clearly deemed to be nontruthful or, at the very least, misleading and deceptive on its face.

While the issue of advertising has long been a subject of the BER, many if not most of its opinions relating to advertising were decided under an earlier version of the NSPE Code of Ethics. At the time, this version of the Code deemed as unethical certain types of advertising determined to be unprofessional, including “self-laudatory comments.” Since then, dramatic changes have occurred within the field of engineering. In addition to changes in the legal landscape that render earlier Code language and BER opinions invalid, many other changes have occurred within the field that would raise significant questions regarding the propriety of such earlier BER opinions. Engineering practice has become much more commercial, competitive, and market-driven, with marketing, sales, and advertising playing a more important role. With the increasing globalization of engineering practice and the heightened use of technology to deliver engineering services, it can be anticipated that those trends will continue. It is clear that earlier notions about the propriety of advertising have become somewhat outdated. The board recognizes its continuing role in carefully evaluating situations involving nontruthful or misleading and deceptive advertising claims and notes that these judgements will need to be made on a caseby- case basis, following a careful evaluation of all of the facts and circumstances.

In this case, although the board believes the contractor, a professional engineer, was attempting to use technical information to overstate the benefits of the 10-foot piles, the board does not believe that his actions reach the point of being unethical. While the 10-foot piles would provide additional unneeded support for the structure, nothing in the contractor’s actions would appear to in any way endanger the public health and safety or compromise the structural integrity of the residential property. Having said that, the board is of the opinion that the contractor should not overstate the benefits of the 10-foot piles, but instead indicate that they are intended for additional support and nothing more.

Conclusion

It was not unethical for the contractor to insist on including the 10-foot piles under the footings in order to provide a more conservative foundation design.

It would be ethical for the contractor to advertise his enhanced structural support in his marketing material. To avoid misleading and deceptive advertising, he should not misrepresent the benefits of the foundation design in his marketing material.

NSPE Code References

Section II.3., Section II.3.a., Section II.3.b., Section II.4.a., Section III.3.a.

For more information, see Case No. 15-3.

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