                       The Attorney                    General off Texas
                                                   May 9,     1979

MARK WHITE
Attorney General


                   Honorable Chet Brooks, Chairman                   Opinion No. MW-20
                   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 Chet Brooks
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 Chet Brooks
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 Chet Brooks
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. However, as presently drafted this provision prohibits
advertising of all affiliations    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 Chet Brooks
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, registra-
            tion 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;




                                              p.   62
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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