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From Antitrust Law Daily, June 20, 2017

Texas regulation limiting advertising for dentists violates free speech rights

By Stephanie K. Mann, J.D.

A Texas regulation that prohibited dentists from advertising as specialists in areas that the American Dental Association had not recognized as specialties violated the First Amendment right to engage in commercial speech. Thus, an order enjoining enforcement of the provision was affirmed by the U.S. Court of Appeals in New Orleans (American Academy of Implant Dentistry v. Parker, June 19, 2017, Southwick, L.).

Texas statute § 108.54 limits the ability of dentists to advertise as specialists in certain areas. The plaintiffs, nationally recognized dental organizations and individual dentists, sought to advertise in areas recognized as specialties by other dental organizations other than the American Dental Association (ADA). However, the Texas State Board of Dental Examiners had specifically limited the number of specialties to the nine listed by ADA.

Four-part test. The court began its discussion by examining the four-part test that determines whether commercial speech is protected by the First Amendment. First, it must concern lawful activity and not be misleading. Next, the asserted governmental interest must be substantial. If both inquiries yield positive answers, it must be determined whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Lawful and not misleading. In answering the first part of the test, both parties agree that the relevant speech was lawful activity. However, the parties disagreed as to whether the speech would be misleading. The use of the term "specialist" is intended to convey useful, truthful information to the consumer, ruled the court, and is intended to be used in the same manner as dentists practicing in the ADA-recognized specialties.

Substantial interests. The court found that the board had a compelling interest in regulating the practice of professions within their boundaries, thereby satisfying this aspect of the test. It was argued that the rule was necessary to prevent "the public from being misled to believe that qualification as a ‘specialist’ under non-ADA-approved criteria is equivalent to qualification as an ADA-approved criteria," and to "establish standards for licensing practitioners."

Directly advances the governmental interest. In the final part of the test, the court must determine whether the harm is greater than the state’s interest, and to this point, the court notes, the board’s burden was significant. "This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree."

The court concluded that the board had not done much "heavy lifting," in this case, instead merely stating that the ADA should "maintain the national gold standard." In fact, its only suggestion as to why the plaintiffs’ speech would be misleading was that the speech does not comport with the ADA’s list of designated specialties. The court ultimately found that the board failed to demonstrate that "real harm" has been alleviate by the statute and fails the four-part test.

The court emphasized that while the board had not met its burden in the current case, the regulation may be upheld in the future if more or different evidence was presented. In addition, the court failed to rule on the plaintiffs’ arguments under the Fourteenth Amendment.

Dissent. Judge Graves issued a dissenting opinion in which he argued that the proposed advertising would be inherently misleading and therefore not entitled to First Amendment protections. According to Graves, the board presented evidence, including empirical data, studies, and antidotal evidence, demonstrating how Rule 108.54 would directly and materially advance the asserted interests. This evidence demonstrated 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." Graves suggested that even if the advertising speech was only "potentially" misleading, the regulation should be upheld.

The case is No. 16-50157.

Attorneys: Renea Hicks (Law Office of Renea Hicks) for American Academy of Implant Dentistry. Bill L. Davis, Office of the Attorney General, for Kelly Parker.

Companies: American Academy of Implant Dentistry; American Dental Assn

MainStory: TopStory Advertising LouisianaNews MississippiNews TexasNews

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