JOUN     E   ,-
-.-

                                       August   21,   1974


       The Honorable John F. Boff,                     Opinion No. H- 375
       Execrttive Director.
       Texar Board of ~miners    in the Fitting        Re: Whether name of city
         & Dispensing of Hearing Aida                  with wordr ‘Hearing Aid
       1W2 Guadalupe,’ Room 100s                       Center” or similar wordr
       Austin, Texan 787Oi                             ia misleading advertising
                                                       under Article 4566~1.10,(10),
                                                       v. T.C. s.

       Dear Mr. Boff:

              Citing Article 4566-l. 10 (10); V. T. C. S; , .and Rule 10 of the Federal
       Trade Commirrion~o Trade Practice.R&er        for the Hearing Aid Indurtry,
       you l&e acrked:

                        Doea the name of the commercial ertablirrhmentr.
                        “Austin Hearing Aid Center, I’or “San Antonio
                        Hearing Aid Service” comply with said Rule and
                        Article?

               Article 4566-l. 10 is a part of the law adopted in 1969 to regulate
       the hearing aid industry (Acts 1969, 61st Leg., Ch. 366, p. 1122). The
       Act calls for the creation of. the Texas Board of Examiners in the Fitting
       and Mepeneing of Hearing Aida (Article 4566-l. 02) and charges it with
       the duty of enforcing the Act (Article 4566-l. 04) including its licensing .’
       pr~virrions. Article 4566-1.10,    V. T. C. S., li.ets the grounds upon which
       the Board may refuse to license an applicant or revoke the license of a
       licenree. One such reason is found in subparagraph (10):

                        (10) The licensee knowingly used or caused or promoted
                        the use of any advertising matter, promotional*terature,
                        guarantees, warranty, disseminated or published with




                                           p. 1763
The Honorable John F.    Boff   page 2   (H-375)




               misleading, deceiving or false information.     It is
               the intention of the Legislature that the provisions .
               of this Subsection (IO) and the following Subsection
               (11) be interpreted insofar as possible to coincide
               with the orders and rules of the Federal Trade
               Commission on such subjects.

        Rule 10 of the Federal Trade ~ommissiosi Trade Practice Rules
for the Hearing Aid Industry was promulgated July 20, 1965 .and is quoted
as follows:

               It is an unfair trade practice for ati industry member
               to represent directly or by impIi&ion,      that a commer-
               cial hearing aid establishment’is a governmental or
               public one, or is a nonprofit’medical,    educational, or
               research institution, though the use of terms having a
               medi+,     professional,. or scientific connotation, such
               as, ‘Wearing Center, ” ‘Hearing Institute, ‘I Wearing
               Bureau, ” “Hearing Clinic, ” Wtate’s Speech and
               Hearing Center, ” or similar representations,

                    Nothing in this rule. is understood to preclude an
               industry member from representing if such be the
               fact, that he owns, operates, or controls a ‘Hearing
               Aid Center, ” or from Ming other words or expressions
               which clearly and nondeceptively identify the member’s
               establishment as a commercial hearing aid enterprise.

        Article 4566-l. 11; V. T. C. S., establishes the procedure for revoco-
tion.or suspension of a license.    It calls for charge8 to be filed under oath
Applicants or licensees are entitled to be present and to be represented by
counsel.   They may cross-examine       witnesses and call witnessess of their
OWL


               (e) The Board shall deter’mine the charges upon their
               merits.  The Board shall enter an order in the
               permanent records of the Board setting forth the




                                    p. 1764
~The Honorable John F. Boff    page S    (H-375)




               findings of fact and law .of the Board and its action
               thereon. A copy of such order of the Board aball
               be mailed to ruch applicant or licensee to his last
               known address by certified mail.

        We cannot say that as a matter of law, the use of the name of
a city in the name of a bu.siners dispensing hearing .aids is misleading
or deceiving. Whether it is. will depend upon the facts of a particular
case. The Board is charged with the responsibility of making that
decision after notice and an. opportunity to be heard.

                                 SUMMARY

                   Article 4566-1.10 gives the Texas Board of
               Examiners in the Fitting and Mapensing of
               Hearing Aids power to determine, after notice
              ‘and hearing, whether the use of a city name
               with the words “Hearing Aid Center” is deceptive
               or misleading as a matter of fact.

                                              Very truly yours,




 DAVID M. KENDALL,      Chairman
 Opinion Committee




                                   p. 1765
