# The Attorney General offTexas May 9, 1979

MARK WHITE Attorney General

Honorable Chet Brooks, Chairman Opinion No. MW-20 Senate Committee onHuman 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 ofDental Examiners 718Southwest 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 tnpart 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..

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. . . . Inproviding an opinion on the validity ofthii 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 orvoice ofa dentist Inany type ofadvertising: (2) All advertising of membership in cr affiliation with aprofessional association;

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(3) All advertising that in any way compares prices on any type ofdental service; (4)All advertising of prices for routine services provided bya commercial dental laboratory or dental clinic; (5)Alladvertising ‘recommending employment’; (6) All advertising that employs statistical data or other information based onpast performance; (7) All advertising of the quality of routine or non-routine services; (8)All advertising of type ofdental services provided such as
‘complete dental services’; (9)Alladvertising ofservices that omits prices; (10)All advertising ofthe type or method dental services such as by group practice through a health maintenance organization or by another system; fll) All advertising that inany way provides any guarantee or warranty for any type ofdental service. This opinion will treat your specific inquiries as outlined above and will further. discuss the specific provisions ofthe committee substitute for Senate Bill 299. Bates v. State Bar of Arizona, 433U.S. 350(1977)is the starting point for answering your inquiry as to the permissible scope ofadvertising 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 bythe restriction. Virginia State Board of Pharmacy v.Virginia Citizen’s Consumer Council, Inc., 425U.S. 748(1976). Bates sets forth abalancing ofinterests approach for determination ofthe allowable rest&-of advertising. Ifthe 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 apotential decline in the quality ofservices, 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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InVirginia Pharmacy at 771the Court stated that restrictions on the time, place, or manner of expression were permissible ifsuch restrictions “are justified without reference to the content of the regulated speech” and that “ample alternative channels for communication ofthe 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 isour opinion that the legislature cannot make ablanket 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 ofservices that omits prices; all advertising that inany way provides any guarantee or warranty for any type ofdental service. While some regulation may be permissible In these areas, wedo 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 isa regulation ofcontent. The same is true ofadvertising which indicates that the delivery of dental services is by group practice, health maintenance organization, orsome 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. ‘Webelieve 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 ofadvertising may be constitutionally prohibited. Ascurrently proposed, the committee substitute for Senate Bill 299,section 2would 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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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, opmisleading advertising either directly or indirectly, or obtaining any fee by fraud or misrepresentation; Under current standards this section isaconstitutional exercise ofstate 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 ofDental Examiners; To the extent this section is consistent with Ohralik v. State Bar of Ohio, 436U.S. 447 (19781,acase involving In-person solicitation by alawyer,and isan 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 isnot affected by any recent Supreme Court decisions and isconstitutional.

(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. Webelieve, 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 isour opinion that this prohibition would potentially bar truthful advertising onthe basis ofcontent and that for this reason it isunconstitutional.

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(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 isconstitutional under Bates. If, however, the section isintended to regulate statement ofqualifications such as years ofpractice or specialty it isnot apermissible exercise oflegislative 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 isimplied 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. Webelieve, however, that advertising of prices of non-routine services is subject to reasonable regulation. (h)failing to actually provide routine professional services Inthe

practice ofdentistry as advertised; This section has not been affected byrecent decisional law andisconstitutional.

(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 ofdentistry; 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 isconstitutional.

(j)giving apublic demonstration ofskill or methods ofpracticing dentistry except as authorized by the Rules and Regulations of the State Board ofDental 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 ofdemonstrations.

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(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, orbeing guilty ofmisusing the same; (m) using any photostat, copy, transcript, or any other representation in lieu of a diploma, license, or registration certificate as evidence ofauthority to practice dentistry which has not been issued bythe State Board ofDental Examiners; These sections are not affected byany 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, ofhimself, hispartner or associate to a non-dentist who has not sought his advice regarding employment ofa dentist; Consistent with the limitations set forth in Bates and Kentucky Bar Ass’nv. Stuart, 568S.W.2d933(Ky. 1978),which permitted aformarect-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 bythe Texas Deceptive Trade Practices

- Consumer Protection Act, V.A.T.S., Business and Commerce Code, Chapter 17,‘Subchapter E,or the rules and regulations ofthe Board; Thii section isconstitutional under current standards.

(p) advertising to guarantee, warrant or certify any dental services cxto 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 asperformed 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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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, ornotices which are not incompliance with this Act and the rules andregulations adopted bythe Board; To the extent that the legislation as finally enacted meets the guidelines suggested by this opinion, the above referenced section isconstitutional.

(s) engaging or participating in any unconscionable action or course of action relating to, in connection with, or arising out of the practice ofdentistry; ‘unconscionable action or cause ofaction’ means an action orpractice which, to aperson’s detriment: (1) takes advantage of the lack of knowledge, ability, experience, orcapacity ofaperson to agrossly unfair degree; Pi) results

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m a gross disparity between value received and consideration paid, in adental transaction; This section isunaffected by current case law andisconstitutional. (t) advertising bargains, cut rates, special values or comparative prices cr values indental services; or (u) advertising in any manner which uses slogans, jingles, pictorial material, drawings, seals, logos, or any pictures or reproductions orrepresentations ofany portion ofthe human body. These sections relate to the manner of presentation and taste. Bates dealt with the issue ofprofessional dignity and found that that interest was insufficiex overcome the right to communicate. While such presentations may be subject to some regulation, wedo not believe they are subject to absolute bans. SUMMARY Senate Bill 299which would prohibit certain types ofadvertising by dentists is constitutional except for portions which would prohibit the dissemination of truthful information which is readily subject to verification and which isnot misleading or deceptive.



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MARK WHITE Attorney General ofTexas

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JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared bySusan Dasher Assistant Attorney General APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman David B.Brooks Susan Dasher Rick Gilpin Harry Green William GReid Bruce Youngblood

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