Gen. 279] 279

HEALTH OCCUPATIONS ) DENTISTS ) ADVERTISING OF

SPECIALTY SERVICES

November 10, 1994

Melvin J. Slan, D.D.S.

Secretary-Treasurer

Maryland State Board of Dental Examiners

You have requested our opinion concerning the authority of the

Board of Dental Examiners to take action against licensees who list

themselves in directories or otherwise advertise as performing

certain specialty services without meeting the criteria for

identification as a specialist. 

For the reasons stated below, we conclude as follows:

1. If a dentist is not identified by the Board as a specialist in

a field of dentistry designated by law as a specialty, the Board may

take disciplinary action against the dentist for advertising that he or

she is such a specialist. 

2. Even if a dentist is not identified as a specialist in a field

of dentistry, the Board may not take disciplinary action against the

dentist for truthfully advertising that he or she performs that

particular dental service. 

3. The Board may adopt a regulation that would require

certain affirmative disclosures in conjunction with an advertising

claim about the performance of particular dental services and, after

adoption of the regulation, could take disciplinary action against

dentists who fail to provide the required disclosure. 

I

Specialization

The Dentistry Act prohibits a dentist from “represent[ing] to

the public that the licensee is a specialist in any field of specialized

dental practice unless identified as a specialist in that field by the

Board.” HO §4-504(a) of the Health Occupations (“HO”) Article,
280 [79 Op. Att’y

 The Board has not approved any new specialty. See COMAR 1

10.44.14.03.

 The definition includes, for example, “any intraoral dental service 2

....” HO §4-101(m)(2) (emphasis added).

Maryland Code. See also HO §4-503(b)(1)(ii). The Act designates

the following “specialties”: 

(1) Endodontics; 

(2) Oral pathology;

(3) Oral surgery; 

(4) Orthodontics;

(5) Pediatric dentistry;

(6) Periodontics; 

(7) Prosthodontics; 

(8) Public health; and 

(9) Any other field of specialized dental

practice that the Board approves under this

section.

HO §4-504(c). The “required qualifications for identification as a 1

specialist” are to be set out in a regulation. HO §4-504(d). The

Board has done so in COMAR 10.44.14.04. 

Neither the Dentistry Act nor the regulation purports to limit

the practice of any licensed dentist, however. Under HO §4-308(a),

“[a] general license to practice dentistry ... authorizes the licensee to

practice dentistry while the license is effective.” The term “practice

dentistry” is defined in broad terms and encompasses all of the

specialty fields. See HO §4-101(m). 

2

Thus, any licensed dentist is free to perform services in any of

the designated specialty fields. In this respect, dentistry is like

medicine: Although physicians tend to specialize and to acquire
Gen. 279] 281

credentials that underlie the expertise associated with a specialist,

any physician is free to perform any act within the scope of practice

of medicine. Putting to one side the issue of malpractice, a

dermatologist, for example, is legally free to practice brain surgery.

So any licensed dentist is free to practice any of the dental

specialties. 

The concern of the Dental Board is that the public might be

misled by a non-specialist dentist’s advertising claim that he or she

performs a particular service. A dentist who advertises the service

of orthodontics, for example, might be thought to imply that the

dentist is a specialist in that field. If the dentist has not met the

Board’s requirements for specialty identification, the implied claim

would be false. The Board would like to be able to act against such

advertising under HO §4-503(a)(4), which prohibits advertising that

“tends to deceive and mislead the public.” 

II

First Amendment Considerations

As the Dental Board is aware from a prior exhaustive opinion

on the subject, the First Amendment to the United States

Constitution imposes limitations on the authority of the Board to act

against advertising by dentists. See 70 Opinions of the Attorney

General 43 (1985). 

One principle of the commercial speech doctrine, as developed

in the several cases of the Supreme Court, is that a regulatory body

may prohibit advertising that is actually or inherently false,

misleading, or deceptive. Ibanez v. Florida Dep’t. of Business &

Prof. Regulation, 114 S. Ct. 2084, 2088 (1994); Zauderer v. Office

of Disciplinary Counsel, 471 U.S. 626, 638 (1985). In our view, this

principle allows the Dental Board to prohibit a dentist who is not a

specialist from self-labeling that falsely implies the specialist status

of the dentist. For example, a dentist who has not attained identified

specialty status in orthodontics may not lay claim to being an

orthodontist. The use of that label for the dentist inescapably

conveys the impression of a specialty status that the dentist does not

have. Thus, HO §§4-503(b)(1)(ii) and 4-504(a) ) which, as we have

construed them, apply only to false claims that one is a specialist )

are constitutional. See 70 Opinions of the Attorney General at 64-

66. See also The Florida Bar v. Herrick, 571 So. 2d 1303, 1307

(Fla. 1990), cert. denied, 111 S.Ct. 2798 (1991) (upholding ban on
282 [79 Op. Att’y

use of term “specialist” by lawyer who is not officially designated or

certified in that area of practice); Parmley v. Missouri Dental Bd.,

719 S.W.2d 745, 752-53 (Mo. 1986) (upholding ban on nonspecialists’ advertising as specialists or limited practitioners).

By contrast, an advertising claim that a non-specialist dentist

simply performs a particular service ) orthodontics, for example )

is not actually or inherently false, misleading, or deceptive. Indeed,

the statement is true: The dentist does perform orthodontics, as he

or she is legally authorized to do. See The Florida Bar v. Herrick,

571 So. 2d at 1307 (noting that lawyer prohibited from advertising

as a specialist “is not prevented from advertising that he practices in

the [specialty] area ...”). 

To be sure,such an advertising claim is potentially misleading.

Some who encounter the advertising might assume, erroneously, that

the dentist must be a specialist if he or she advertises the service.

But the First Amendment does not allow commercial speech that is

merely potentially misleading to be banned altogether. See, e.g.,

Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91,

110 (1990); Bates v. State Bar of Arizona, 433 U.S. 350, 375 (1977).

As the Supreme Court held in another case, “the States may not

place an absolute prohibition on certain types of potentially

misleading information, e.g., a listing of areas of practice, if the

information also may be presented in a way that is not deceptive.”

In re R.M.J., 455 U.S. 191, 203 (1982). 

These principles have been applied in exactly the area of your

inquiry by a federal appellate court. In Parker v. Commonwealth of

Kentucky, Board of Dentistry, 818 F.2d 504 (6th Cir. 1987), the

Kentucky regulatory scheme was much like Maryland’s. Through

special licensure, a dentist could attain a specialty designation and

advertise as a specialist in that particular field of dentistry.

Nevertheless, any licensed dentist in Kentucky was allowed to

perform services in any or all of the fields of dentistry for which

specialty designation was available.

Parker, a general practice dentist, was not a designated

specialist in orthodontics. Nevertheless, he performed orthodontic

procedures as a significant part of his practice. In telephone

directory advertising, Parker listed orthodontics as one of the

services that he offered. The Kentucky Board then brought

disciplinary action against him. 818 F.2d at 506. 
Gen. 279] 283

The federal court rejected the argument that the dentist’s use

of the term “orthodontics” was inherently misleading:

Such terms are not false, but actually describe

procedures which a general practicing dentist

is permitted to perform under state law. If a

state permits a dentist to perform orthodontic

procedures, we do not believe a state can

justify an outright ban on the use of particular

terms relating to orthodontics on the theory

that such terms inherently mislead the public.

To the contrary, by suppressing such speech,

the public will possibly be misled into

believing that only orthodontists can perform

orthodontic procedures. Since this

information is truthful and relates to a lawful

activity, it is entitled to First Amendment

protection.

818 F.2d at 510. 

The court went on to observe “that even assuming this

information could be classified as potentially misleading, the state’s

outright prohibition on the use of these terms cannot be justified.”

Id. The court recognized the state’s “substantial interest in enabling

the public to distinguish between general practitioners and

specialists or in ensuring the professional conduct of dentists. Such

interest in this context, however, can be furthered by requiring more

disclosure; an outright ban on the use of specific, nonmisleading

terms is simply not narrowly tailored to meet the state’s concern.”

818 F.2d at 510-11. 

The court pointed out that information about a non-specialist’s

scope of practice “can be presented in a way which does not mislead

the public into believing that a general practicing dentist is a dentist

with an orthodontia specialty license. A disclaimer to such an effect

would adequately address the state’s concern.” 818 F.2d at 510. 

In our view, this analysis correctly applies First Amendment

principles to a non-specialist dentist’s advertising of areas of

practice that are designated specialties. The Dental Board is

constitutionally permitted to adopt a regulation requiring affirmative

disclosures ) for example, a requirement that advertising of a

specialty service by a non-specialist contain a disclaimer of specialty

status. See Parmley v. Missouri Dental Bd., 719 S.W. 2d at 752
284 [79 Op. Att’y

 A non-specialist who advertises that orthodontics is part of his or 3

her practice could be required, for example, to state in any advertising “not

a specialist in orthodontics” or some other phrase designed to avert any

misimpression about the dentist’s status as a specialist. Although such an

affirmative disclosure requirement can call for disclaimers of this kind to

be done in a way that consumers will notice the disclaimer, the

requirement may not be so burdensome as to effectively chill the

advertising that is entitled to First Amendment protection. See Zauderer

v. Office of Disciplinary Counsel, 471 U.S. at 651. 

(upholding disclaimer requirement for non-specialist dentist whose

advertising contains “terms denoting recognized specialties”). See

generally Zauderer v. Office of Disciplinary Counsel, 471 U.S. at

651. It is not constitutionally permitted to prohibit that kind of 3

advertising, however. 

III

Conclusion

In summary, it is our opinion that, although the Board of

Dental Examiners may prohibit a dentist who is not an identified

specialist from advertising that the dentist is a specialist, the Board

may not prohibit a truthful advertising claim by a non-specialist that

he or she performs a specialty service. The Board may adopt a

regulation, however, to require appropriate affirmative disclosures

in conjunction with such a claim. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice

Editor’s Note:

Since the issuance of this opinion, the General Assembly has

repealed the list of specialities in HO §4-504(c) and substituted an

authorization for the Board to “approve any area of speciality

recognized by the Commission on Dental Accreditation ....” Chapter

376, Laws of Maryland 1999.