The Attorney General off Texas 

May 9, 1979 

MARK WHITE 

Attorney General 

Honorable Chet Brooks, Chairman Opinion No. MW-2 0 

Senate Committee on Human Resources 

Senate Chamber Re: Constitutionality of Senate 

Austin, Texas 787ll Bill 299 relating to dental 

advertising. 

Honorable Carl C. Hardin, Jr. 

Executive Director 

Texas State Board of Dental Examiners 

718 Southwest Tower 

7th and Braxos Streets 

Austin, Texas 78701 

Gentlemen: 

You have each requested our opinion on the constitutionality of the 

committee substitute for Senate Bill 299. Senator Brooks’ request for an 

opinion reads tn part as follows: 

Recognizing the unconstitutionality and 

unenforceability of the present Articles 4548f and 

4548g, the Texas Dental Association and the State 

Board of Dental Examiners have requested the Senate 

Human Resources Committee to approve S.B. 

299.. . . 

. . . . 

In providing an opinion on the validity of thii statute,~ 

I would respectfully direct your attention to some 

specific concerns as to whether the Legislature can 

constitutionally prohibit: 

(D All pictoral advertising including all 

television advertising of prices on routine services or 

any personal appearance, picture or voice of a dentist 

In any type of advertising: 

(2) All advertising of membership in cr 

affiliation with a professional association; 

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Honorable Carl C. Hardin, Jr. - Page Two tMwe2’) 

(3) All advertising that in any way compares prices on any 

type of dental service; 

(4) All advertising of prices for routine services provided by a 

commercial dental laboratory or dental clinic; 

(5) All advertising ‘recommending employment’; 

(6) All advertising that employs statistical data or other 

information based on past performance; 

(7) All advertising of the quality of routine or non-routine 

services; 

(8) All advertising of type of dental services provided such as 

‘complete dental services’; 

(9) All advertising of services that omits prices; 

(10) All advertising of the type or method dental services such 

as by group practice through a health maintenance organization or 

by another system; 

fll) All advertising that in any way provides any guarantee or 

warranty for any type of dental service. 

This opinion will treat your specific inquiries as outlined above and will further. 

discuss the specific provisions of the committee substitute for Senate Bill 299. 

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) is the starting point for answering 

your inquiry as to the permissible scope of advertising restriction consistent with the First 

Amendment. At the outset Bates clearly indicates that deceptive or misleading 

advertising can be prohibited. Additionally, evenly applied time, place and manner 

restrictions are permissible if alternative forms of communication are available and if 

some legitimate interest of the state is served by the restriction. Virginia State Board of 

Pharmacy v. Virginia Citizen’s Consumer Council, Inc., 425 U.S. 748 (1976). 

Bates sets forth a balancing of interests approach for determination of the allowable 

rest&-of advertising. If the advertised information assists the consumer’s intelligent 

choice and is subject to ready verification, the advertisement is protected unless the 

state’s interest in restricting the information outweighs the consumer’s right to know. 

This approach contemplates a means by which a determination can be made as to what 

particular forms of advertising can be deemed misleading per. The Court in Bates at 

368-69 rejected proferred rationales such as a potential decline in the quality of services, 

damage to the professional relationship or the difficulty occasioned by monitoring and 

enforcement as sufficiently strong state interests to warrant advertising restriction. 

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Honorable Carl C. Iiardin, Jr. - Page Three (~~-20) 

In Virginia Pharmacy at 771 the Court stated that restrictions on the time, place, or 

manner of expression were permissible if such restrictions “are justified without reference 

to the content of the regulated speech” and that “ample alternative channels for 

communication of the information” remained available. 

Under the Bates analysis, that the dissemination of truthful information which is 

readily subject toverification and which is not misleading or deceptive may not be 

prohibited, and the Virginia Pharmacy approach of non-content time, place and manner 

restriction, it is our opinion that the legislature cannot make a blanket prohibition of: 

all advertising of membership in or affiliation with a professional 

association; 

all advertising that in any way compares prices on any type of 

dental services; 

all advertising of prices for routine services provided by a 

commercial dental laboratory or dental clinic; 

all advertising of services that omits prices; 

all advertising that in any way provides any guarantee or warranty 

for any type of dental service. 

While some regulation may be permissible In these areas, we do not believe it can sweep 

as broadly as the formulations outlined in your letter. 

It is further our opinion that attempts to prohibit advertisement of prices on 

television or advertisement of prices through personal appearances is not permissible 

under Virginia Pharmacy if it is a regulation of content. The same is true of advertising 

which indicates that the delivery of dental services is by group practice, health 

maintenance organization, or some other system. 

Because advertising of quality such as the “best”/“better” variety is not subject to 

verification, and potentially misleading, quality advertisement may be constitutionally 

regulated. ‘We believe the same rationale would permit regulation of advertising which 

manipulates statistical data in a misleading manner. Given the interest of the state in 

preventing deception and pressure tactics, this type of advertising may be constitutionally 

prohibited. 

As currently proposed, the committee substitute for Senate Bill 299, section 2 would 

amend article 4548g, V.T.C.S., in the following manner. 

It shall be unlawful for any person, firm, or corporation to engage 

in or be guilty of any unprofessional conduct pertaining to 

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Honorable Carl C. Hardin, Jr. - Page Four (R’h’-39 1 

dentistry, directly or Indirectly. Any unprofessional conduct, as 

used herein, means and includes any one or more of the following 

acts, to wit: 

(a) engaging in false, deceptive, op misleading advertising either 

directly or indirectly, or obtaining any fee by fraud or 

misrepresentation; 

Under current standards this section is a constitutional exercise of state regulatory power. 

(b) utilizing others to solicit and/or obtain business except as 

otherwise authorized by law or the Rules and Regulations of the 

State Board of Dental Examiners; 

To the extent this section is consistent with Ohralik v. State Bar of Ohio, 436 U.S. 

447 (19781, a case involving In-person solicitation by a lawyer,and is an attempt to prohibit 

the use of “cappers,” ‘steerers,” and “runners” it is a constitutional exercise of state 

regulatory powers. 

(cl employing directly or indirectly or permitting any unlicensed 

person to perform’dental services upon any person; 

This section is not affected by any recent Supreme Court decisions and is constitutional. 

(dl circulating any statement as to the skill, method, or quality 

of’practicing dentistry, or membership in or affiliation with any 

group or association; 

We believe that statements relating to skIl1 or quality are not readily subject to 

verification and may be regulated. We believe, however, that truthful representations of 

methodology are constitutionally protected. 

Tradename advertising may be restricted if misleading as was the case in Friedman 

v. Rogers, 99 S.Ct. 887 (1979). To the extent that this section attempts to regulate such 

advertising it is constitutional. 

advertising of all affiliations 

However, as presently drafted this provision prohibits 

As such it is our opinion that this restriction Is 

unconstitutional. 

fel advertising the use of any anesthetic, drug, formula, 

medicine, method, system, or dental procedure, product, or 

material, or any statement or reference to a facility except the 

address thereof; 

It is our opinion that this prohibition would potentially bar truthful advertising on the basis 

of content and that for this reason it is unconstitutional. 

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Honorable Carl C. Hardin, Jr. - Page Five @h’-2ol 

(f) claiming or circulating any statement of professional 

superiority or the performance of professional services in a 

superior manner; 

If this section is designed to regulate “puffing” we believe that it is constitutional under 

Bates. If, however, the section is intended to regulate statement of qualifications such as 

years of practice or specialty it is not a permissible exercise of legislative power. 

tg) advertising prices for non-routine professional services in the 

~practice of dentistry, or comparative values thereof; except as 

authorized by the Rules and Regulations of the State Board of 

Dental Examiners; 

The only issue before the Supreme Court in Bates was the advertising of routine legal 

services. It is implied in the opinion that rout~rvices could be adequately defined to 

prevent misleading the consumer. To the extent that prices for non-routine services are 

advertised in a truthful and non-misleading manner with the appropriate disclaimers if 

such are warranted, it is our opinion that they cannot be entirely prohibited. We believe, 

however, that advertising of prices of non-routine services is subject to reasonable 

regulation. 

(h) failing to actually provide routine professional services In the 

practice of dentistry as advertised; 

This section has not been affected by recent decisional law and is constitutional. 

(8 advertising to the public any commercial dental laboratory or 

dental clinic, except as otherwise authorized by law, or soliciting 

or allowing hi name to be used in aoliciting,businesa for a dental 

laboratory or any related business, industry or product connected 

with the practice of dentistry; 

Friedman found the use of a tradename in the optometry profession to be 

sufficiently misleading as to allow regulation of the practice by the state. To the extent 

this section would prohibit the use of a dentist’s name on services or products that he or 

she does not provide or manufacture, it is constitutional. 

(j) giving a public demonstration of skill or methods of practicing 

dentistry except as authorized by the Rules and Regulations of the 

State Board of Dental Examiners; 

Demonstrations of skill or methods of practicing dentistry potentially have educational 

value to the consumer. Although such demonstrations are subject to regulation, in our 

opinion Bates would not allow complete prohibition of demonstrations. 

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Honorable Chet Brooks 

Honorable Carl C. Hardin, Jr. - Page Six (r4W-29) 

(1) forging, altering, or changing any diploma, license, registration certificate, transcript, or any other legal document pertaining 

to the pratice of dentistry, being a party thereto, or beneficiary 

therein, or making any false statement about or in securing such 

docum.ent, or being guilty of misusing the same; 

(m) using any photostat, copy, transcript, or any other 

representation in lieu of a diploma, license, or registration 

certificate as evidence of authority to practice dentistry which has 

not been issued by the State Board of Dental Examiners; 

These sections are not affected by any recent court decisions and are constitutional. 

(n) recommending employment, or requesting another person or 

organization to recommend employment, except as otherwise 

authorized by law, as a dentist, of himself, his partner or associate 

to a non-dentist who has not sought his advice regarding 

employment of a dentist; 

Consistent with the limitations set forth in Bates and Kentucky Bar Ass’n v. Stuart, 

568 S.W.2d 933 (Ky. 1978), which permitted a formarect-mail advertising by attorneys, 

solicitation such as described in this section can be constitutionally regulated. 

(0) accepting employment as a dentist under any solicitation or 

referral scheme which constitutes a false, misleading or deceptive 

act cc practice as &fined by the Texas Deceptive Trade Practices 

- Consumer Protection Act, V.A.T.S., Business and Commerce 

Code, Chapter 17,‘Subchapter E, or the rules and regulations of the 

Board; 

Thii section is constitutional under current standards. 

(p) advertising to guarantee, warrant or certify any dental 

services cx to perform any dental work without pain or discomfort 

to the patient; 

In our opinion guarantees and warranties are permissible under Bates and Virginia 

Pharmacy. Certification of services as performed without pain would be permissible if it 

is truthful and not misleading. Given the subjective nature of pain and discomfort such 

certifications are subject to substantial regulation. 

(q) publishing or circulating testimonials, reports, number of 

patients or cases, statements of patients, statistical data or other 

information based on past performance or prediction of future 

satisfaction or success; 

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Honorable Chet Brooks 

Honorable Carl C. Hardin, Jr. - Page Seven (m-29) 

Predictions of future satisfaction or stmcess are not subject to verification when 

made and may be prohibited. The remaining concerns of this section are legitimate 

subjects for advertising under Bates if they sre not deceptive or misleading. 

(r) circulating or posting announcements, advertisements, 

displays, signs, or notices which are not in compliance with this Act 

and the rules and regulations adopted by the Board; 

To the extent that the legislation as finally enacted meets the guidelines suggested 

by this opinion, the above referenced section is constitutional. 

(s) engaging or participating in any unconscionable action or 

course of action relating to, in connection with, or arising out of 

the practice of dentistry; ‘unconscionable action or cause of action’ 

means an action or practice which, to a person’s detriment: 

(1) takes advantage of the lack of knowledge, ability, 

experience, or capacity of a person to a grossly unfair degree; 

Pi) results m . a gross disparity between value received and 

consideration paid, in a dental transaction; 

This section is unaffected by current case law and is constitutional. 

(t) advertising bargains, cut rates, special values or comparative 

prices cr values in dental services; or 

(u) advertising in any manner which uses slogans, jingles, 

pictorial material, drawings, seals, logos, or any pictures or 

reproductions or representations of any portion of the human body. 

These sections relate to the manner of presentation and taste. Bates dealt with the 

issue of professional dignity and found that that interest was insufficiex overcome the 

right to communicate. While such presentations may be subject to some regulation, we do 

not believe they are subject to absolute bans. 

SUMMARY 

Senate Bill 299 which would prohibit certain types of advertising by 

dentists is constitutional except for portions which would prohibit 

the dissemination of truthful information which is readily subject 

to verification and which is not misleading or deceptive. 

>z&+g 

MARK WHITE 

Attorney General of Texas 

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Honorable Chet Brooks 

Honorable Carl C. Hardin, Jr. - Page Eight (l+fN-20) 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Susan Dasher 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Susan Dasher 

Rick Gilpin 

Harry Green 

William G Reid 

Bruce Y oungblood 

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