   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                         February 20,200l



The Honorable Florence Shapiro                       Opinion No. JC-0342
Chair, State Affairs Committee
Texas State Senate                                   Re: Whether the Texas State Board of Medical
P.O. Box 12068                                       Examiners is authorized to adopt rules that
Austin, Texas 78711                                  prohibit all physician   advertising containing
                                                     testimonials (RQ-0265JC)


Dear Senator Shapiro:

         Section 101.201 ofthe Occupations Code prohibits health profession advertising that is false,
misleading, deceptive, or not readily subject to verification and includes within this prohibited
category any advertising containing a testimonial. See TEX. OCC. CODE ANN. 8 101.201 (Vernon
2000). Section 153.002(a) of the Occupations Code prohibits the Texas State Board of Medical
Examiners (the “Board”) from adopting rules that restrict advertising by “person[s] regulated by the
board except to prohibit false, misleading, or deceptive practices” by those regulated.            Id.
§ 153.002(a). The Board has adopted rules that deem any advertisement that contains a testimonial
to be false, deceptive, or misleading advertising. You ask whether the Board’s rule in barring all
testimonials violates section 153.002(a). We conclude in the negative because the legislature in
section 101.201 of the Occupations Code has barred all testimonials from health profession
advertising, deeming any such advertising containing a testimonial to be false, deceptive, or
misleading. Such a legislative ban, however, will only withstand constitutional challenge if the state
provides evidence supporting the assertion that testimonials are inherently misleading or otherwise
deserving of being banned. We cannot predict whether a court would find section 101.201 (b)(4)
constitutional under this test.

        Section 153.002(a) of the Occupations    Code restricts the rules the Board may adopt with
respect to advertising by providing that:

                         The board may not adopt rules restricting advertising or
                 competitive bidding by a person regulated by the board except to
                 prohibit false, misleading, or deceptive practices by the person.

Id. tj 153.002(a).
The Honorable Florence Shapiro           - Page 2          (JC-0342)




         The Board has adopted rules dealing specifically with physician advertising                     that provide in
 relevant part that:

                   No physician      shall disseminate or cause the dissemination of any
                   advertisement     that is in any way false, deceptive, or misleading. Any
                   advertisement     shall be deemed by the Board to be false, deceptive, or
                   misleading if    it:

                           (1) contains material false claims or misrepresentations                 of
                   material facts which cannot be substantiated; or




                            (8)    contains a testimonial; or




 25 Tex. Reg. 1497,1498 (2000), adopted 25 Tex. Reg. 4348 (to be codified at 22 TEX.ADMIN. CODE
 5 164.3) (emphasis added). A “testimonial” under the Board’s rules is “[a]n attestation or implied
 attestation to the competence of a physician’s service or treatment” and includes “expressions of
 appreciation or esteem, a character reference, or a statement of benefits received.“* Id. (to be
 codified at 22 TEX. ADMIN. CODE 8 164.2(2)). In light of the section 153.002’s restriction on Board
 advertising rules, you ask:

                   Is the [Board] authorized to adopt rules which prohibit physician
                   advertising containing a “testimonial” even if such “testimonial” is a
                   true, accurate, nonmisleading and nondeceptive statement regarding
                   services provided by the physician to a patient or a true, accurate,
                   nonmisleading and nondeceptive statement reflecting the benefits the
                   patient received from such medical treatment [?I”

         In essence, you ask whether the Board has exceeded its statutory authority in barring all
 testimonials.  We conclude in the negative because while section 153.002 read in isolation may
 appear to preclude the Board from barring all testimonials, that is not the case when read together
 with section 101.201 of the Occupations Code. The Board’s rules are adopted pursuant to sections
 153.001 and 101.201 of the Occupations Code. Section 101.201 also prohibits false, misleading,


           ‘Additionally,  “[tlestimonials are not limited to patient comments but may also include comments from
 colleagues, friends, family, actors, models, fictional characters, or other persons or entities.” 25 Tex. Reg. 1497, 1498
 (2000), adopted 25 Tex. Reg. 4348 (to be codified at 22 TEX.ADMIN.CODEfj 164.2(2)).

          *Letter from Honorable  Florence Shapiro, Chair, State Affairs Committee,       Texas State Senate, to
 Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General at 1 (Aug. 9,200O) (on file with Opinion
 Committee).
The Honorable Florence Shapiro            - Page 3           (JC-0342)




 or deceptive advertising by health professionals and, more importantly,                       prohibits any advertising
 containing a testimonial. That section provides in relevant part that:

                            (b) False, misleading, or deceptive advertising or advertising
                    not readily subject to verification includes advertising that:

                                  (1) makes a material misrepresentation of fact or omits
                    a fact necessary to make the statement as a whole not materially
                    misleading;




                                    (4) contains a testimonial;




 TEX. OCC. CODE ANN. 5 101.201(b)(l),               (4) (Vernon 2000) (emphasis added).

          A primary rule of statutory construction is that legislative enactments involving the same
 general subject matter and also possessing the same general purpose or purposes are considered to
 be and are construed to be in par-i materia (like subject matter). See Garrett v. Mercantile Nat ‘I
 Bank,168 S.W.2d 636,637 (Tex. 1943); see also Calved v. Fort Worth Nat ‘1Bank, 356 S.W.2d 918,
 92 1 (Tex. 1962). Section 153.002 and section 101.201 concern the same general subject matter,
 possess the same general purpose, and were enacted by the same legislature.3 See State ex rel.
 0 ‘Connell, 976 S.W.2d 902,907 (Tex. App.-Dallas 1998, no pet.) (“rule of in pari materia applies
 with peculiar force to acts passed at same session of legislature”). We believe they must be read
 together; “Statutes in pari materia are to be taken, read and construed together, and effort should be
 made to harmonize, if possible so that they can stand together, and have concurrent efficacy.” Davis
 v. State, 968 S.W.2d 368,372 (Tex. Crim. App. 1998) (en bane). The Board’s rule prohibiting all
 testimonials is authorized by and consistent with its statutory authority. See Calvert, 356 S.W.2d
 at 921 (well settled that statutes in pari materia are to be read and construed together in arriving at
 the legislature’s intent).

          A state “‘agency can adopt only such rules as are authorized by and consistent with its
 statutory authority. “’ See R.R. Comm ‘n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)
 (citation omitted). In considering the validity of a state agency rule, the determinative factor as to
 whether the agency has exceeded its authority is whether the rule is in harmony with the general
 objectives of the statute. See Gerst v. Oak CIiff Sav. & Loan Ass’n, 432 S.W.2d 702, 706 (Tex.



           3Sections 101.201 and 153.002 were adopted by the 73d Legislature. See Act of May 26,1993,73d Leg., R.S.,
 ch. 669, $ 1 .Ol, sec. 3(a), (b), 1993 Tex. Gen. Laws 2483, 2484 (adopting article 45 12p, Revised Civil Statutes,
 predecessor to section 101.201); Act of May 30, 1993,73d Leg., R.S., ch. 862,§ 18, 1993 Tex. Gen. Laws 3374,3388
 (adopting   art. 4495b, 9 3.085, Revised Civil Statutes, predecessor   to section 153.002).
The Honorable     Florence Shapiro       - Page 4          (K-0342)




 1968). An agency rule that imposes additional burdens, conditions, or restrictions in excess of or
 inconsistent with the relevant statutory provisions is invalid. See Hollywood CalIing v. Pub. Util.
 Comm’n, 805 S.W.2d 618,620 (Tex. App.-Austin 1991, no writ).

          The Board’s physician advertisement rules are adopted pursuant to section 153.001 and
 section 101.201 of the Occupations Code. See 25 Tex. Reg. 1497 (2000), adopted 25 Tex. Reg.
 4348 (to be codified at 22 TEX.ADMIN. CODE 5 164.1). The Board is the state agency empowered
 to regulate the practice of medicine. See TEX. OCC. CODE ANN. 9 152.001 (Vernon 2000). Section
 153.001 of the Occupations Code grants the Board broad rule-making authority.                It expressly
 authorizes the Board to adopt rules as necessary to perform its duties, regulate the practice of
 medicine, and to enforce the Medical Practice Act, subtitle B of title 3 of the Occupations Code,
 chapters 15 l-l 65. See id. 8 153.001. Under the Medical Practice Act, the Board is charged with
 taking disciplinary actions against prohibited physician practices, including the use of false,
 misleading, or deceptive advertising statements or statements regarding professional superiority or
 services that are not readily subject to verification. See id. 5 5 164.05 1 (grounds for license denial
 or disciplinary action), .052(a)(6), (7) (prohibited practices, including false, misleading, or deceptive
 advertising statements); Act of May 25, 1999, 76th Leg., R.S., ch. 1271, 8 3, sec. 3.08, 1999 Tex.
 Gen. Laws 4383, 4384 (amending former article 4495b, section 3.08, Revised Civil Statutes,
 predecessor to sections 164.05 1 and ,052, without reference to repeal and codification ofthat article).
 The Medical Practice Act does not define or set out specifically what constitutes false, misleading,
 or deceptive advertising statements or professional superiority or service statements not readily
 subject to verification.

          Chapter 101 of the Occupations Code, however, containing provisions applying to health
 professions generally, does. Section 101.201, like section 164.05 1, also prohibits “advertising that
 is false, misleading, deceptive, or not readily subject to verification,” and deems advertising that
 contains a testimonial to be “false, misleading, deceptive, or not readily subject to verification.”
 TEX.Oct. CODE ANN. 8 101.201(a), (b)(4) (V emon 2000). A violation of this section, among others,
 is grounds for revocation or denial of a license by the appropriate health agency, see id. $ 101.204,
 which with respect to physicians, is the Board. See id. $5 152.001 (Board to regulate practice of
 medicine); 164.05 1 (grounds for license denial or disciplinary action); 164.052(a)(6), (7) (prohibited
 practices, including false, misleading, or deceptive advertising statements, or statements not readily
 subject to verification).    Thus, the legislature in section 101.201(b)(4) has deemed a health
 profession advertisement containing a testimonial to be false, deceptive, or misleading and has
 prohibited such advertising.4



           40ther regulatory bodies have determined that testimonials are inherently misleading. See, e.g., Fla. Bar: In
 re Rules Regulating Fla. Bar-Adver. Issues, 571 So. 2d 45 1,461 (Fla. 1990) ( commentary explaining that endorsement
 or testimonials are prohibited as false, misleading, deceptive or unfair communication      because “they are inherently
 misleading to a layman untrained in the law” and “[plotential clients are likely to infer from the testimonial that the
 lawyer will reach similar results in future cases”); Minx Acad. of Chiropractors, Inc. v. Minn. State Bd. of Chiropractic
 Exam ‘rs, 169 N.W.2d 26,30 (Minn. 1969) (“Whether true or false, to the extent that the testimonial may be construed
 as a promise to cure, it is declared by statute to be fraudulent and misleading.“).
The Honorable Florence Shapiro     - Page 5        (JC-0342)




          In short, the Board’s rule prohibiting and deeming any advertising containing a testimonial
 to be false, misleading, or deceptive advertising is consistent with the Board’s authority to prevent
 the unauthorized      practice of medicine, including the use of false, misleading, or deceptive
 advertising.   Because the rule simply reiterates the legislative prohibition against the use of all
 testimonials, it imposes no additional burdens, conditions, or restrictions in excess of or inconsistent
 with the Board’s statutory authority to regulate the practice of medicine.

          You do not ask about the legislature’s authority to enact section 101.201 (b)(4) of the
 Occupations Code prohibiting the use of all testimonials in health profession advertising. Nor has
 the Board or another health profession agency briefed this issue. Nonetheless, we note that
 professional advertising as a form of commercial speech is entitled to a measure of First Amendment
 protection. See Florida Bar v. Wentfor It, Inc., 515 U.S. 618,623 (1995) (“‘[C]ommercial speech
 [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of
 First Amendment values,’ and is subject to ‘modes of regulation that might be impermissible in the
 realm of noncomrnerical    expression.“’ quoting Bd. of Trs. v. Fox, 492 U.S. 469, 477 (1989)).
 Restrictions on commercial speech are subject to an “intermediate scrutiny” and are analyzed under
 the framework set out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447
 U.S. 557 (1980). See, e.g., Went For It, 515 U.S. at 623-24; Greater New Orleans Broad. Ass ‘n v.
  United States, 527 U.S. 173, 183 (1999).

          Under Central Hudson, the government may freely regulate commercial speech that concerns
 unlawful activity or is misleading. See Central Hudson, 447 U.S. 557; see also Zauderer v. Office
 of Disciplinary Counsel, 471 U.S. 626, 638 (1985) (state may prohibit commercial speech that is
 false, deceptive, or misleading, or that proposes illegal transaction); In re R. M. J, 455 U.S. 191,202
 (1982) (states may prohibit inherently misleading speech entirely). Commercial speech that falls
 into neither of these categories may be regulated if the government satisfies a test consisting of three
 related prongs: (1) the government must assert a substantial interest in support of its regulation; (2)
 the government must demonstrate that the restriction on commercial speech directly and materially
 advances the governmental interest asserted; and (3) the regulation must be no more extensive than
 is necessary to serve the governmental interest. See Went For It, 5 15 U.S. at 624; Greater New
 Orleans Broad., 527 U.S. at 183 (citing Central Hudson, 447 U.S. at 566). Under this analysis, a
 state asserting that a restriction directly and materially advances a governmental interest (under the
 second prong) must demonstrate that the harms it recites are real and that its restrictions will in fact
 alleviate them to a material degree. Greater New Orleans Broad., 527 U.S. at 188 (citing Edenfield
 v. Fane, 507 U.S. 761,770-71 (1993)).

          While no court has ruled on the constitutionality of an absolute ban on testimonials in health
 profession advertising, the New Mexico federal district court in Bell v. Legal Advertising Committee,
 998 F. Supp. 123 1 (D. N.M. 1998), has indicated that an absolute ban on testimonials in the context
 of legal advertising will only be upheld against a constitutional challenge if the state provides
 evidence supporting the assertion that such testimonials are inherently misleading or otherwise
 deserving of being banned. See Bell v. Legal Adver. Comm., 998 F. Supp. at 1237 (refusing to
 dismiss, for failure to state a claim, constitutional attack on New Mexico’s lawyer advertising rules
The Honorable Florence Shapiro            - Page 6           (K-0342)




 banning testimonials); see also Went For It, 5 15 U.S. at 626-29 (discussing statistical and anecdotal
 evidence amassed by Florida Bar supporting its limited ban on certain direct-mail attorney
 advertising; comparing this evidence to lack of similar evidence in other cases involving absolute
 bans); Texans Against Censorship, Inc. v. State Bar of Tex., 888 F. Supp. 1328, 1349 (E.D. Tex.
 19951, aff’d mem, 100 F.3d 953 (5th Cir. 1996) (discussing Texas Bar hearing transcripts supporting
 more restrictive amended legal advertising and solicitation rules).

         We cannot, however, predict whether a court confronted with the question would find section
 101.201(b)(4) of the Occupations Code constitutional.       As indicated earlier, neither the Board or
 another health profession agency has addressed the constitutionality of section 101.201(b)(4) of the
 Occupations Code, or had the opportunity to provide evidence supporting the testimonial ban.
 Moreover, because this office does not take or weigh evidence,5 we could not determine whether the ~
 state had met its burden under the Bell test even if such evidence were proffered. Finally, we note
 that while a statute may be found to be facially infirm on the ground of overbreadth in the context
 of speech protected by the First Amendment, see New York State Club Ass ‘n v. City of New York,
 487 U.S. 1, 11 (1988) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
 797-98 (1984)); L ouisiana DebatingandLiterary      Ass iz v. City ofNew Orleans, 42 F.3d 1483,1492-
 93 (5th Cir. 1995), the overbreadth doctrine does not apply to commercial speech, see Bd. of Trs. v.
 Fox, 492 U.S. 469,48 l(l989); Texans Against Censorship, 888 F. Supp. at 1368; seegenerally 16A
 AM. JUR. 2D Constitutional Law @j 413,480 (1998 & Supp. 2000). Thus, the doctrine would apply
 here only to the extent that section 101.201 (b)(4) were found to reach noncommercial speech. See
 TexansAgainst Censorship, 888 F. Supp. at 1341 n.15,1368. Section 101.201(b)(4) onits facedeals
 only with health profession advertising, a form of commercial speech.




            ‘See Tex. Att’y Gen. Op. Nos. JC-0291(2000) at 10 (“This office, which does not find facts . _ . .“); JC-0020
 (1999) at 2 (“[I] nvestigation and resolution of fact questions . . . cannot be done in the opinion process.“); M-l 87 (1968)
 at 3 (“[Tlhis office is without authority to make . . . factual determinations.“).
The Honorable   Florence Shapiro    - Page 7      (JC-0342)




                                         SUMMARY

                          The Texas Legislature has authorized the Texas State Board
                of Medical Examiners to adopt rules that prohibit use of all
                testimonials   in physician    advertising by deeming any health
                profession advertising containing a testimonial to be false, deceptive,
                or misleading advertising in section 10 1.201 (b)(4) of the Occupations
                Code. Such a legislative ban, however, will only withstand
                constitutional challenge if the state provides evidence supporting the
                assertion that testimonials are inherently misleading or otherwise
                deserving ofbeing banned. This office cannot predict whether a court
                would find section 101.201 (b)(4) constitutional under this test.




                                               Attorney General of Texas



 ANDY TAYLOR
 First Assistant Attorney General

 CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
