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Appellate court upholds ruling that Texas code violated First Amendment

June 22, 2017

By Jennifer Garvin

New Orleans —The 5th U.S. Circuit Court of Appeals affirmed June 19 an opinion by a federal district court in Texas, saying certain dental advertising restrictions enforced by the Texas State Board of Dental Examiners violated dentists' First Amendment rights to engage in commercial speech.

In 2014, the American Academy of Implant Dentistry, American Society of Dental Anesthesiologists, American Academy of Oral Medicine and American Academy of Orofacial Pain and others filed a lawsuit in the U.S. District Court for the Western District of Texas challenging a provision in the Texas Administrative Code that precluded the advertising of specialties not recognized by the American Dental Association.

In ruling for the plaintiffs, the Court of Appeals affirmed the decision of the district court that the provision violated the plaintiffs' First Amendment right to engage in commercial speech.

In January 2016 the ADA Division of Legal Affairs reported the district court's holding that restricting use of the term "specialty" and "specialist" only in connection with one of the ADA recognized specialties violates the First Amendment rights of dentists who have earned credentials in other dental practice areas from competent, bona fide credentialing boards. The lower court found that the dental board failed to show "any compelling state interest in limiting dental specialty areas to those designated by the ADA."

The ADA Legal Division, in the cited article, also noted the court's observation that the specialty advertising rule was enforced by the Board without the Board ever considering "whether the non-ADA-recognized fields are actually bona fide and meet standards of minimum competency," which creates confusion and may even ban truthful claims from being made.

In the appellate court's opinion, the court noted that in order for commercial speech to be protected under the First Amendment, it "must concern lawful activity and not be misleading." In this case, both the plaintiffs and defendants agreed that advertising as a "specialist in the fields of implant dentistry, dental anesthesiology, oral medicine and orofacial pain" is lawful activity. The issue discussed by the court, therefore, was whether the term "specialist" was "devoid of intrinsic meaning" and thus, as used by the plaintiffs, inherently misleading.  The court found that the word "specialist" was not without intrinsic meaning and, in fact, "conveys a degree of expertise or advanced ability." Its use, therefore, was not misleading, and the "Board's concern about the possibility of deception in hypothetical cases" was not sufficient.

The Texas case is the most recent court decision upholding the rights of dentists to advertise bona fide specialties, even if they are not among those recognized by the ADA. The nine ADA-recognized dental specialties are: dental public health; endodontics; oral and maxillofacial pathology; oral and maxillofacial radiology; oral and maxillofacial surgery; orthodontics and dentofacial orthopedics; pediatric dentistry; periodontics; and prosthodontics.  

Read the entire opinion here.