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Requiring list of all practice members in ads unconstitutional

A state rule that compelled dental practices to list every dentist associated with or employed by the practice in every advertisement is an unconstitutional burden on commercial speech, the Court of Appeals of Indiana held January 20 (Indiana Professional Licensing Agency v. Atcha, 2016 WL 233211).

The case concerned a dentist, Irfan Atcha, who extensively advertised his dental implant practice in ways that disparaged dentures as poisonous. The court agreed with a trial court that the required-listing regulation violated the First Amendment. However, while remanding the case, the court upheld other state regulations barring false or misleading announcements of services, and deceptive claims of better services, care, or materials.

Atcha’s advertising campaign marketed his expertise in modern implant and sedation techniques, claiming that his procedures are “too advanced for most dentists, oral surgeons, and periodontists.” Also included in his ad was the claim that Atcha “the only licensed and certified advanced trained dentist to perform the IV sedation and dental care on his patients.”

Among Atcha’s advertised claims were statements that:

  • His cosmetic dentures “consistently fool other dentists.”

  • Some oral surgeons, periodontists, and prosthodontists “make you feel like they’re experts in dental implants, but they can do more harm than good.”

  • “General dentists typically have little or no knowledge of the sedation process.”

  • “No one should die with their teeth in a glass!” together with pictures implying that dentures combined with denture adhesives are poison.

After complaints from fellow dentists, the Indiana Professional Licensing Agency and state dental board found that Atcha had made false and misleading claims and it ordered that his license be placed on indefinite probation and that he pay a $3,000 fine. A trial court reversed on appeal, finding all three dental advertising regulations unconstitutional.

The appeals court rejected Atcha’s charge that the advertising regulation was overbroad and vague. But the court ruled against the state’s argument that it may compel a dental practice to disclose all of the dentists it employs in every advertisement.

The state mistakenly relied on the U.S. Supreme Court’s pro-disclosure ruling in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, (471 U.S. 626 (1985)), the appeals court said. Zauderer concerned a compelled disclosure about fees to prevent confusion on the part of non-lawyers.

“Here, the State asserts that a consumer might call Dr. Atcha’s office and expect to make an appointment with Dr. Atcha, but instead be given an appointment with another dentist, who may not have the same credentials. This is distinctly different than the concerns over hidden costs that justified the compulsory disclosures in Zauderer. A potential client will learn that he or she has an appointment with a different dentist before any costs are incurred,” the court said. “We do not see a similar, ‘self-evident’ potential for deception in this case.”

The court remanded the case to the board to reassess the penalty in light of this partial reversal of the board’s discipline.