 ’   OFFICE     OF   THE   ATTORNEY     GENERAL   . STATE   OF   TEXAS

     JOHN        CORNYN




                                                            February 8,2002




The Honorable Kim Brimer                                                 Opinion No. JC-0458
Chair, House Committee on
 Business & Industry                                                     Re: Constitutionality of a ban on testimonials   by
Texas House of Representatives                                           health care professionals  (RQ-04 11 -JC)
P.O. Box 2910
Austin, Texas 78768-2910


Dear Representative              Brimer:

        You have requested our opinion regarding the constitutionality        of an absolute ban on
testimonials in advertising by health care professionals. Although we cannot definitively conclude
as a matter of law that a blanket ban is unconstitutional, we believe it is highly likely that a court
would so conclude.

              Section 101.201 of the Texas Occupations                    Code provides:



              (4      A person may not use advertising that is false, misleading,                 deceptive, or not
              readily subject to verification.

              (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;

                           (2)      makes a representation     likely to create an unjustified
                           expectation about the results of a health care service or procedure;

                           (3)      compares a health care professional’s services with another
                           health care professional’s services unless the comparison can be
                           factually substantiated;

                           (4)        contains a testimonial;
The Honorable Kim Brimer      - Page 2           (JC-0458)




               (5)     causes confusion or misunderstanding      as to the credentials,
               education, or licensing of a health care professional;


               (6)     represents    that health care insurance       deductibles   or
               copayments may be waived or are not applicable to health care
               services to be provided if the deductibles or copayments are required;

               (7)      represents that the benefits of a health benefit plan will be
               accepted as full payment when deductibles or copayments are
               required;

               (8)     makes a representation that is designed to take advantage of
               the fears or emotions of a particularly susceptible me of patient; or

               (9)      represents in the use of a professional name a title or
               professional identification that is expressly or commonly reserved to
               or used by another profession or professional.

TEX. OCC. CODE ANN.    8 101.201 (Vernon 2002) (emphasis added). Section 101.251 provides that
“[a] person who violates this chapter is liable to the state for a civil penalty in an amount not to
exceed $1,000 for each violation. Each day a violation occurs constitutes a separate violation.” Id.
8 101.25 l(a). Furthermore, the attorney general, who is charged with enforcement, “may recover
reasonable expenses incurred in obtaining a civil penalty under this section, including court costs,
reasonable attorney’s fees, reasonable investigative costs, witness fees, and deposition expenses.”
Id. § 101.251(c).

         In Attorney General Opinion JC-0342, we concluded that, on the basis of              section
101.201 (b)(4), the Board of Medical Examiners was authorized “to adopt rules that prohibit   the use
of all testimonials in physician advertising.” Tex. Att’y Gen. Op. No. JC-0342 (2001) at      7. The
request that was the basis for JC-0342 did not ask about the constitutionality           of   section
101.201(b)(4), and the opinion, while acknowledging the issue, did not reach any conclusion    on the
matter. Here, the question is squarely before us.

         The United States Supreme Court first held that professional advertising is a forrn of
commercial speech in Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Commercial speech is
entitled to “‘a limited measure ofprotection, 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 noncommercial expression.“’ Bd. of Trs. of State Univ. of N. Y. v. Fox, 492 U.S. 469,
477 (1989), af’d, 42 F.3d 135 (1994) (quoting Ohralikv. Ohio State BarAss’n, 436 U.S. 447,456
(1978)). The Supreme Court uses an “intermediate scrutiny” test to evaluate restrictions on
commercial speech, and analyzes them under the framework set forth in Central Hudson Gas &
The Honorable Kim Brimer        - Page 3           (JC-0458)




Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 573 (1980).                 As the
Supreme Court said in Florida Bar v. Went for It, 5 15 US. 618 (1995):

                Under Central Hudson, the government              may freely regulate
                commercial speech that concerns unlawful activity or is misleading.
                Commercial speech that falls into neither of those categories, like the
                advertising at issue here, may be regulated if the government satisfies
                a test consisting of three related prongs: First, the government must
                assert a substantial interest in support of its regulation; second, the
                government must demonstrate that the restriction on commercial
                speech directly and materially advances that interest; and third, the
                regulation must be “narrowly drawn.”

Id. at 623-24 (citation omitted).

         Under the Central Hudson test, the state may absolutely ban commercial speech that
concerns unlawful activity or is misleading. The speech at issue here does not concern an unlawful
activity. Nor has it been shown that testimonials are inherently misleading. Cf Bell v. Legal Adver.
Comm., 998 F. Supp. 123 1, 1237 (D. N.M. 1998) (absolute ban on legal advertising testimonials
would be unconstitutional    unless state provided evidence supporting assertion that testimonials
inherently misleading or otherwise deserving of being banned); Snell v. Dep ‘t of Prof’l Regulation,
742 N.E.2d 1282 (Ill. App. 2001)’ d ism ‘don motion by appellant (1 O/l 9/O 1) (regarding chiropractors
and holding that “while testimonials have the potential to be misleading, there is nothing inherently
misleading about them”). Section 101.201 of the Occupations Code simply deems all testimonials
to be inherently misleading. Unlike the other eight examples of “false, misleading, or deceptive
advertising or advertising not readily subject to verification,” the ban on testimonials is not qualified
or explained. Nothing in the bill analysis of the legislation that enacted section 10 1.201 contains any
reference to testimonials. HOUSE COMM. ON STATEAFFAIRS, BILL ANALYSIS, Tex. H.B. 3 155’76th
Leg., R.S. (1999). Therefore, we apply the three prong test of Central Hudson.

         We will assume for purposes of this opinion that the state can satisfy the first two prongs of
the Central Hudson test: first, that it has a “substantial interest” in banning “advertising that is false,
misleading, deceptive, or not readily subject to verification”; and second, that its prohibition
“directly and materially advances that interest.” The third prong, however, is more troublesome.
It requires that “the regulation must be narrowly drawn.” We believe that the ban at issue fails to
satisfy this prong.

        We first note that section 101.201 fails to define the term “testimonial.” A “testimonial,” in
the context clearly intended here, is “a statement testifying to benefits received.” WEBSTER’S NINTH
NEW COLLEGIATEDICTIONARY12 19 (9th ed. 1990). A “testimonial” would presumably describe the
experience the speaker has had with the health professional who is the subject of an advertisement.
But because there is no statutory definition, a health professional would not be able to ascertain
whether the term would be broadly construed by a court, narrowly construed, or otherwise.
The Honorable Kim Brimer       - Page 4            (JC-0458)




        Furthermore,    the legislature has not limited the class of persons qualified to make a
testimonial used in health professional advertising. A testimonial offered by a prominent heart
surgeon on behalf of a colleague would be as prohibited by section 101.201 as would a testimonial
by a patient, or indeed, by a fictional character.

         Blanket bans on commercial speech, “unlike content-neutral restrictions on the time, place,
or manner of expression, are particularly dangerous because they all but foreclose alternative means
of disseminating certain information.”          44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501
(1996); see also Greater New Orleans Broadcasting Ass ‘n, Inc. v. United States, 527 U.S. 173,194-
95 (1999). As one federal district court has recently said, “[albsolute bans on various types of
attorney advertising have not fared well in the United States Supreme Court or other appellate
courts.” Bell, 998 F. Supp. at 123 8. Section 101.201 of the Occupations Code makes no effort to
narrow or qualify its absolute ban on testimonials. The statute thereby presumes the proof required
by the Central Hudson test. In In re R.M.J., 455 U.S. 191 (1982)’ the Supreme Court held that,
while misleading advertising may be prohibited entirely, a state “may not place an absolute
prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice
[of an attorney], if the information also may be presented in a way that is not deceptive.” Id. at 203.
In another case, the Supreme Court said that “we cannot allow rote invocation of the words
‘potentially misleading’ to supplant the Board’s burden to ‘demonstrate that the harms it recites are
real and that its restriction will in fact alleviate them to a material degree.“’ See Ibanez v. Fla. Dep ‘t
of Bus. & Prof’l Regulation, Bd. ofAccountancy, 512 U.S. 136, 146 (1994).

         Finally, section 101.201, in its absolute prohibition on testimonials, overlooks a simple
means to remedy its constitutional defect, a remedy that has been suggested by the Supreme Court
on at least five occasions. In In re RMJ., the Court observed that “the Court in Bates suggested that
the remedy in the first instance is not necessarily a prohibition but preferably a requirement of
disclaimers or explanation. . . . Although the potential for deception and confusion is particularly
strong in the context of advertising professional services, restrictions upon such advertising may be
no broader than reasonably necessary to prevent the deception.” In re R.M.J., 455 U.S. at 203. And
in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985)’ the
Court noted that “in virtually all our commercial speech decisions to date, we have emphasized that
because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat
prohibitions on speech, ‘waming[s] or disclaimer[s] might be appropriately required . . . in order to
dissipate the possibility of consumer confusion or deception.“’ Id. at 65 1.

          Thus, we believe that, at the very least, section 101.201 (b)(4) of the Occupations Code fails
to satisfy the third prong of the Central Hudson test, in that it is more extensive than necessary to
serve the state’s interest. The statute simply assumes that all testimonials, regardless oftheir source,
are inherently misleading. Consequently, we are persuaded that a court would have significant
difficulty in upholding the constitutionality of section 10 1.20 1(b)(4).

         We note that a mid-level appellate court in Illinois has within the past year declared
constitutionally void a statute that imposed an absolute ban on the use of testimonials by
The Honorable Kim Brimer      - Page 5            (JC-0458)




chiropractors.     See Snell, 742 N.E.2d 1282 (Ill. App. 2001)’ dism ‘d on motion by appellant
(1 O/l 9/01). The opinion is relevant to the present inquiry, not only because it is the first reported
voiding of a state’s blanket ban on the use of testimonials by health care professionals, but also
because, just as the Texas Legislature in enacting section 101.201 simply deemed all testimonials
to be false and misleading, the Illinois Department of Professional Regulation asserted to the court
that all testimonials were “inherently misleading.” Id. at 1285. Disagreeing, the court said that,
while “testimonials have the potential to be misleading, there is nothing inherently misleading about
them. Testimonials are not innately more likely to deceive the public than inform it.” Id. at 1286.
The court also failed to perceive “any commonsense link between a categorical ban on testimonials
. . . and the purported harm the State seeks to prevent.” Id. at 1287 (emphasis in original). In
conclusion, the court wrote:

                [W]e conclude that section 26, by banning testimonials outright,
                sacrifices an intolerable amount of truthful speech about lawful
                conduct. We further conclude that the complete ban on testimonials
                is not in proportion to the State’s admittedly important interests and
                is unnecessarily    and disproportionately    broad in the scope of
                communication it prohibits.

Id. at 1288.

        In our opinion, the court’s argument is persuasive, and is equally applicable to section
101.201(b)(4) of the Occupations Code. We believe that a court would probably conclude as a
matter of law that this provision contravenes the standards regarding commercial speech set forth
in Central Hudson.
The Honorable Kim Brimer      - Page 6            (~~-0458)




                                         SUMMARY

                        The United States Supreme Court has held that the
               government may freely regulate commercial speech that concerns
               unlawful activity or is misleading, but that commercial speech that
               falls into neither of those categories may be regulated only if the
               government satisfies a three prong test: (1) the government has a
               substantial interest in regulating the speech; (2) the restriction directly
               and materially advances that interest; and (3) the regulation is
               narrowly drawn.        Because section 101.201(b)(4) of the Texas
               Occupations Code imposes an absolute ban on the use of testimonials
               regarding health care professionals, a court would probably find that
               it fails to satisfy the third prong of this test and, therefore,
               contravenes the First Amendment to the United States Constitution.

                                                               urs,



                                                              (--b
                                                       N CORNYN
                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
