|Action||Amendment to restriction on advertising dental specialties|
|Comment Period||Ends 9/5/2018|
Strongly Oppose - Inherently Misleading Speach Should not be protected under 1st amendment
The dictionary defines the word “specialist” as a person who concentrates primarily on a particular subject or activity; a person highly skilled in a specific and restricted field.
I would imagine that if someone advertised themselves as a “specialist” in a particular medical or dental field, they should be trained in COMPLICATION MANAGEMENT.
The American Board of Oral Implantology, a constituent group of the American Board of Dental Specialties, seeks to certify their members as “specialists” in implantology through a process that bears no mention of complication management other than two lines on a multiple choice test. The 2019 ABOI/ID standards can be found here:
Please contrast this with the standards put forth by CODA:
ORAL & MAXILLOFACIAL SURGERY
The simple fact that individuals with can inherently misleadingly advertise as a “specialist” via credentials from a board certification process that does not examine or test the candidate’s ability to ACTIVELY MANAGE COMPLICATIONS should not be protected under the first amendment right to free speech.
Furthermore, I believe this puts not only the oral health, but the general health and safety, of Virginia’s citizens at risk.
As the soles tasked with the responsibility of protecting the public of Virginia, I humbly ask that you think of your relatives and loved ones in other places of Virginia that may fall prey to such advertising. How the board plans to deal with patients that were injured by individuals that were inherently misleadingly advertising as “specialists” is beyond me.
I believe this issue of inherently misleading speech not being protected under first amendment rights is best explained by the dissenting opinion of James E. Graves, Jr, Circuit Judge, 5th Circuit Court of Appeals in American Academy of Implant Dentistry v. Parker, No. 16-50157 (5th Cir. 2017) when he authored the following:
“I disagree with the majority that Rule 108.541 of the Texas Administrative Code is unconstitutional as applied to the plaintiffs (hereinafter collectively referred to as “Academy”). The advertising proposed by Academy is inherently misleading. Misleading commercial speech is not entitled to First Amendment protection. Because I would reverse the district court’s grant of summary judgment on Academy’s First Amendment claim and its enjoinment of the provision as applied to Academy, I respectfully dissent. Academy wants to advertise as specialists in certain subsets of dentistry that are not recognized as specialties by the American Dental Association (“ADA”) and are prohibited from doing so by the rules of the Texas State Dental Board of Dental Examiners (the “Board”). Academy brought a facial and asapplied constitutional challenge against the Board arguing that Rule 108.54, which regulates specialty advertising for dentists, unconstitutionally infringes on commercial speech protected by the First Amendment. The district court partially granted both parties’ cross-motions for summary judgment. Academy was granted summary judgment on its First Amendment claim, invalidating the ordinance as applied to Academy. The Board was granted summary judgment on Academy’s equal protection and due process claims. The Board appeals the First Amendment claim. Academy failed to file a cross-appeal, but then attempts to revive a Fourteenth Amendment due process claim in the appellees’ brief. As the majority correctly states, we apply the four-part test from Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980), as follows: At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
As a threshold determination, for commercial speech to be protected under the First Amendment, “it at least must concern lawful activity and not be misleading.” Central Hudson, 447 U.S. at 566. Advertising that is inherently misleading receives no protection, while advertising that is potentially misleading may receive some if it may be presented in a way that is not deceptive. In re R.M.J., 455 U.S. 191, 203 (1982). This case is analogous to American Board of Pain Management v. Joseph, 353 F.3d 1099 (9th Cir. 2004), which involved a California statute that limits a physician from advertising as board certified in a medical specialty without meeting certain requirements. There, the Ninth Circuit said: The State of California has by statute given the term “board certified” a special and particular meaning. The use of that term in advertising by a board or individual physicians who do not meet the statutory requirements for doing so, is misleading. The advertisement represents to the physicians, hospitals, health care providers and the general public that the statutory standards have been met, when, in fact, they have not.
Because the Plaintiffs' use of “board certified” is inherently misleading, it is not protected speech. But even if the Plaintiffs' use of “board certified” were merely potentially misleading, it would not change the result in this case, as consideration of the remaining three Hudson factors confirms that the State may restrict the use of the term “board certified” in advertising. Such is the case here. Texas has by statute given the term specialist a particular meaning. See 22 Tex. Admin. Code § 108.54; see also 22 Tex. Admin. Code §§ 119.1-119.9 (setting out special areas of dental practice). Additionally, it is only “in the context of unregulated dental advertising” that the Board contends the term “specialist” is devoid of intrinsic meaning and is inherently misleading. But with regard to the regulated dental advertising and the recognized specialty areas, the term has a special meaning and special requirements. Further, the areas that Academy seeks to have designated as specialties are actually more like subsets, which are already encompassed within general dentistry and multiple of the existing recognized specialties. See 22 Tex. Admin. Code §§ 119.1-119.9; see also Tex. Occ. Code § 251.003 (setting out the provisions of the practice of dentistry). The majority opinion allows that, instead of a general dentist having to comply with the academic, educational or certification necessary to become, for example, a prosthodontist, a general dentist can simply get “certified” in one small aspect of the branch of prosthodontics, i.e., implants, and advertise at the same level as someone who actually completed an advanced degree in an accredited specialty.2 The majority relies on Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), to conclude that “specialist” is not devoid of intrinsic meaning. In Peel, the issue involved letterhead and a statement that the attorney was a “certified civil trial specialist by the National Board of Trial Advocacy.” The Court concluded that this was not inherently misleading, saying that “it seems unlikely that petitioner's statement about his certification as a ‘specialist’ by an identified national organization necessarily would be confused with formal state recognition.” Id. at 104-05. The Court further reiterated that a “State may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA” and pointed out that “[t]here is no dispute about the bona fides and the relevance of NBTA certification.” Id. at 110. However, that is not the case here where, as the Board correctly asserts, the term “specialist” may be used without reference to any identified certifying organization and there is a dispute about the bona fides and relevance of the certifications. Thus, despite what the majority says, the problem is not merely that “the organization responsible for conferring specialist credentials on a particular dentist is not identified in the advertisement.” Nevertheless, Ibanez v. Florida Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136, 145, n.9 (1994), is also distinguishable. Ibanez involved an attorney who advertised her credentials as CPA (Certified Public Accountant) and CFP (Certified Financial Planner). Again, there were no questions about the certifications. Further, footnote 9, which addressed only a point raised in a separate opinion, says that a consumer could easily verify Ibanez’ credentials – as she was indeed a licensed CPA through the Florida Board of Accountancy and also a CFP. More importantly, Ibanez was not practicing accounting. Further, under 22 Tex. Admin. Code §§ 108.56 additional credentials or certifications are clearly allowed to be advertised in Texas.3 In Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Commission, 24 F.3d 754 (5th Cir. 1994), this court relied on evidence in the record to support the district court’s finding that the use of the term “invoice” in the automobile industry in its entirety was inherently misleading. That evidence included testimony of various car dealers that “invoice” means different things. Id. at 757. Here, we have testimony that “specialist” in unregulated dental advertising means different things. The majority’s statement that “[h]ere, the individual plaintiffs intend to use ‘specialist’ in the same manner as dentists practicing in ADA-recognized specialties” is erroneous. In fact, the plaintiffs intend to use “specialist” to encompass subsets of existing specialties that do not necessarily require the same academic, educational or certification required of the specialties recognized by both the ADA and Texas. For these reasons, I would conclude that the term “specialist” in the context of unregulated dental advertising is inherently misleading and, thus, not protected by the First Amendment. Moreover, even if Academy’s proposed speech was only potentially misleading, the Board would still be able to regulate it under the remaining elements of the Central Hudson test quoted previously herein. As the Board asserts, the evidence provided, at the very least, creates a question of fact sufficient to survive summary judgment. The Supreme Court said in Ibanez: Commercial speech that is not false, deceptive, or misleading can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980); see also id., at 564, 100 S.Ct., at 2350 (regulation will not be sustained if it “provides only ineffective or remote support for the government's purpose”); Edenfield v. Fane, 507 U.S. 761, 767, 113 S.Ct. 1792, 1798, 123 L.Ed.2d 543 (1993) (regulation must advance substantial state interest in a “direct and material way” and be in “reasonable proportion to the interests served”); In re R.M.J., 455 U.S., at 203, 102 S.Ct., at 937 (State can regulate commercial speech if it shows that it has “a substantial interest” and that the interference with speech is “in proportion to the interest served”).
Ibanez, 512 U.S. at 142-43. The majority acknowledges that the Board has a substantial interest. But, the majority then concludes that the Board has not demonstrated that Rule 108.54 directly advances the asserted interests. I disagree. The Board presented evidence demonstrating how Rule 108.54 would directly and materially advance the asserted interests. That evidence included “empirical data, studies, and anecdotal evidence” or “history, consensus, and simple common sense.” See Pub. Citizen Inc. v. La. Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011). The majority dismisses the empirical data and studies referenced in Borgner v. Brooks, 284 F.3d 1204, 1211-13 (11th Cir. 2002), because the actual studies are not in the record. The absence of those studies in the record does not undermine the reliability or persuasiveness of the Eleventh Circuit’s analysis and conclusions about those same studies including, but not limited to, the following: These two surveys, taken together, support two contentions: (1) that a substantial portion of the public is misled by AAID and implant dentistry advertisements that do not explain that AAID approval does not mean ADA or Board approval; and (2) that ADA certification is an important factor in choosing a dentist/specialist in a particular practice area for a large portion of the public.
Id. at 1213. Additionally, the majority dismisses deposition testimony and evidence of complications saying, in part, that the harms would not be remedied by Rule 108.54 because it merely regulates how a dentist may advertise. I disagree. Rule 108.54 regulates what a dentist may hold himself out as being to the public, i.e., a general dentist with or without certain credentials or a specialist.
The majority further dismisses witness testimony because it does not necessarily pertain to general dentists who violated the existing rule by holding themselves out as specialists in advertisements. The point of the testimony was to offer support for the fact that an ADA-recognized specialist has a higher success rate and fewer complications than a general dentist who may perform a subset of those recognized specialties. Also, what the Board does clearly establish is that the harms Rule 108.54 seeks to prevent are very real. This was established by way of both anecdotal evidence and simple common sense. With regard to consensus, the Board introduced evidence that numerous other states limit dental-specialty advertising. Rules 108.55-56 allow any pertinent information about individual plaintiffs’ qualifications to be advertised to consumers. See 22 Tex. Admin. Code §§ 108.55-56.4 Rules 108.55-56 also clearly establish that Rule 108.54 is not more extensive than necessary. Dentists are able to advertise any and all dental credentials and certifications so long as they do not hold themselves out as specialists in areas where they have not complied with the statutory requirements. Thus, even if the speech was only potentially misleading, I would conclude that the Board can still regulate it under the Central Hudson test. For these reasons, I would reverse the district court’s grant of summary judgment on Academy’s First Amendment claim and its enjoinment of the provision as applied to Academy. Therefore, I respectfully dissent.”
Thank you for your time and consideration is this highly important matter.
Thomas F. Glazier, DDS, MSD