                                                                             Jan 20 2016, 6:37 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Gregory F. Zoeller                                         James W. Brauer
Attorney General                                           Katz & Korin, P.C.
                                                           Indianapolis, Indiana
Frances Barrow
Deputy Attorney General                                    Frank R. Recker
Indianapolis, Indiana                                      Frank R. Recker & Associates
                                                           Cincinnati, Ohio


                                            IN THE
    COURT OF APPEALS OF INDIANA

Indiana Professional Licensing                             January 20, 2016
Agency and Indiana State Board                             Court of Appeals Case No.
of Dentistry,                                              49A02-1504-MI-197
Appellant-Respondents,                                     Appeal from the Marion Superior
                                                           Court
        v.                                                 The Honorable Gary L. Miller
                                                           Trial Court Cause No.
Irfan A. Atcha, D.D.S.,                                    49D03-1312-MI-44739
Appellee-Petitioner



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016                    Page 1 of 19
                                           Case Summary
[1]   Dr. Atcha, a Dyer dentist, began an extensive advertising campaign marketing

      his expertise in modern implant and sedation techniques. Among other claims,

      he touted that his procedures are “too advanced for most dentists, oral

      surgeons, and periodontists.” He also promoted himself as the “only licensed

      and certified advanced trained dentist to perform the IV sedation and dental

      care on his patients.” Undoubtedly to encourage potential clients to receive

      dental implants from him, he used pictures to show that dentures combined

      with dental adhesives are poisonous.


[2]   After a number of complaints from fellow dentists, the Indiana Professional

      Licensing Agency and the Indiana State Board of Dentistry found when

      advertising his practice Dr. Atcha made false and misleading claims of (1)

      dental specialty and (2) better materials or superior services. He also was found

      to have violated regulations compelling him to disclose every dentist within his

      practice in his advertisements. Upon his appeal to the Marion Superior Court,

      the court found all three dental advertising regulations unconstitutional. We

      reverse in part and affirm in part.

[3]   Although protected by the First Amendment, commercial speech receives less

      protection than other forms of expression. In particular, the State retains the

      authority to prohibit or restrict false and misleading commercial speech. Here,

      the State properly restricted Atcha’s false and misleading claims implying he

      had a particular dental specialty and could provide better materials or superior


      Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 2 of 19
      service than other dentists. However, we conclude that the State may not

      compel a dentist to list on his advertisements every dentist in his practice.

      Finding no reasonable relationship between compelling the disclosure of all

      associated dentists and preventing deception, we agree with the trial court that

      the regulation does not satisfy First Amendment protections for commercial

      speech. Therefore, we affirm the trial court in part and reverse in part.


                             Facts and Procedural History
[4]   Dr. Irfan Atcha has held a license to practice dentistry in Illinois since 1996.

      He obtained a dentistry license for Indiana in 2006, purchased an existing

      practice, and began practicing dentistry in Dyer, Indiana. Shortly after taking

      over the practice in Dyer, Dr. Atcha began an extensive advertising campaign

      that included radio, television, billboards, phone books, newspapers, direct

      mailing, social magazines, and online media.


[5]   The gist of Dr. Atcha’s voluminous advertising is that he uses modern implant

      and sedation techniques, which might be particularly helpful to consumers who

      need prosthetic teeth. However, some of his advertising claims went beyond

      that simple message. Dr. Atcha implied that he is able to perform implant

      procedures that are “too advanced for most dentists, oral surgeons and

      periodontists[.]” Appellant’s App. p. 189. He claimed his cosmetic dentures

      “consistently fool other dentists[.]” Id. at 186. Dr. Atcha implied that there is a

      lack of accountability and responsibility in corporate dental implant centers. Id.

      at 189. He claimed that oral surgeons, periodontists, and prosthodontists

      Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 3 of 19
      “make you feel like they’re experts in dental implants, but they can do more

      harm than good.” Id. at 255. In the same advertisement, Dr. Atcha claimed

      that “[t]he specialist only worries about what he needs to do and has no

      knowledge or understanding about the restorative end (tooth placement) of the

      procedure, so the restorative dentist’s hands are tied.” Id. He claimed that

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

      Id. at 191. Dr. Atcha advertised that he is the “only licensed and certified

      advanced trained dentist to perform the IV sedation and the dental care on his

      patients.” Id. Finally, under the heading “NO ONE should die with their teeth

      in a glass!” Dr. Atcha used pictures to indicate that dentures combined with

      denture adhesives are poison. Id. at 252.


[6]   Dr. Atcha’s advertisements drew complaints from other dentists and, as a

      result, the State filed a complaint with the Indiana State Board of Dentistry

      containing four counts:

              Count I: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
              Respondent has knowingly violated 828 IAC 1-l-l4(a) and (b) in
              that Respondent has failed to list all dentists in his practice on his
              advertisements.


              Count II: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
              Respondent has knowingly violated 828 IAC l-l-18(k) in that
              Respondent has used words that express or imply specialization
              in implant dentistry, that do not state the services are being
              provided by a general dentist, and are false or misleading.


              Count III: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
              Respondent has knowingly violated 828 IAC 1-1-18(m) in that
      Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 4 of 19
              Respondent has advertised superior services, better materials, or
              more skillful care available in his office in a deceptive manner.


              Count IV: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
              Respondent has knowingly violated 828 IAC 1-1-18(n) in that
              Respondent has advertised guarantees or warranties that are
              deceptive and utilized testimonials or endorsements in a
              misleading manner.


[7]   Dr. Atcha and the State reached a settlement agreement and presented it to the

      Board on February 1, 2013. But the Board rejected the proposed settlement

      after a hearing.

[8]   Thereafter, the Board held another hearing on October 4, 2013, and issued its

      findings of fact, ultimate findings of fact, conclusions of law, and order on

      November 15, 2013. The Board ultimately found that Dr. Atcha knowingly

      violated three regulations: 1) 828 IAC l-l-14(a) and (b) in that he failed to list all

      dentists in his practice on his advertisements; 2) 828 IAC 1-1-18(k) in that he

      used words that express or imply specialization in implant dentistry, that do not

      state the services are being provided by a general dentist, and are false or

      misleading; 3) 828 IAC 1-1-18(m) in that he has advertised superior services,

      better materials, or more skillful care available in his office in a deceptive

      manner, and that Section 18(m) would not have been violated if the

      advertisements were not in fact deceptive.

[9]   The regulations that the Board found Dr. Atcha violated read, in pertinent part,

      as follows:


      Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 5 of 19
               1) 828 IAC 1-1-14:
                      (a) Any advertisement for dental treatment shall include
                      the names of the licensed dentists associated with such
                      treatment or treatment facility or employed by the
                      treatment facility or another dentist.


                        (b) Advertisements listed in telephone directories, or other
                        such advertisements which are listed once a year, must
                        include the names of the licensed dentists associated with
                        the treatment or treatment facility or employed by the
                        treatment facility or another dentist as of the date the
                        contract is made to run the advertisement.


               2) 828 IAC 1-1-18(k):
               A dentist who is not considered a specialist by this section and
               who wishes to announce the services available in his or her
               practice may announce the availability of those services so long
               as he or she avoids any communications that express or imply
               specialization. The dentist shall also state that the services are
               being provided by a general dentist. No dentist shall announce
               available services in any way that would be false or misleading in
               any material respect.


               3) 828 IAC 1-1-18(m):
               An advertisement indicating that superior services, better
               materials, or more skillful care are available in a particular office
               or by a group of practitioners may be deceptive.


[10]   Dr. Atcha was subject to disciplinary sanctions for the three regulatory

       violations pursuant to Indiana Code section 25-1-9-4(a)(3). The Board ordered,

       among other things, Atcha’s license placed on indefinite probation and a $3000

       fine ($1000 per violation).



       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016      Page 6 of 19
[11]   Dr. Atcha appealed to the trial court, contending, among other allegations, that

       the Board’s Order violated his right to free speech guaranteed under the United

       States and Indiana Constitutions. The trial court reached only the First

       Amendment question. It found that the regulations violated Dr. Atcha’s First

       Amendment rights and reversed the Board’s Order. The State now appeals.


                                   Discussion and Decision
[12]   The legislature has granted courts limited power to review the action of state

       government agencies taken pursuant to the Administrative Orders and

       Procedures Act (“AOPA”). See Ind. Educ. Employment Relations Bd. v. Nettle

       Creek Classroom Teachers Ass’n, 26 N.E.3d 47, 53 (Ind. Ct. App. 2015); State Bd.

       of Registration for Prof’l Eng’rs v. Eberenz, 723 N.E.2d 422, 430 (Ind. 2000). Under

       the AOPA, a court may only set aside an agency action that is:

               (1) arbitrary, capricious, an abuse of discretion, or otherwise not
               in accordance with law;
               (2) contrary to constitutional right, power, privilege, or
               immunity;
               (3) in excess of statutory jurisdiction, authority, or limitations, or
               short of statutory right;
               (4) without observance of procedure required by law; or
               (5) unsupported by substantial evidence.

       Ind. Code § 4-21.5-5-14(d).

[13]   Appellate courts stand in the same position as the trial court when reviewing an

       administrative agency’s decision. Amoco Oil Co. v. Comm’r of Labor, 726 N.E.2d

       869, 872 (Ind. Ct. App. 2000). In reviewing an administrative agency’s

       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 7 of 19
       decision, this Court analyzes the record as a whole to determine whether the

       administrative findings are supported by substantial evidence. Whirlpool Corp. v.

       Vanderburgh Cnty.-City of Evansville Human Relations Comm’n, 875 N.E.2d 751,

       759 (Ind. Ct. App. 2007). This Court may not substitute its judgment on factual

       matters for that of the agency, and we are bound by the agency’s findings of fact

       if the findings are supported by substantial evidence. Id. Moreover, we review

       the record in the light most favorable to the administrative proceedings and are

       prohibited from reweighing the evidence or judging the credibility of witnesses.

       Amoco, 726 N.E.2d at 873. However, no such deference is accorded an

       agency’s conclusions of law, as the law is the province of the judiciary. Id.


[14]   The State raises three issues on appeal: (1) whether Dr. Atcha’s advertisements

       were false or misleading and, therefore, not entitled to First Amendment

       protection; (2) whether the regulations restricting advertisement of dental

       specialties and superior materials or services are constitutional restrictions on

       speech; and (3) whether the regulation requiring dentists to include the names

       of all dentists associated with their practice in every advertisement is

       constitutional compelled speech.

[15]   At the outset, the First Amendment, as applied to the States through the

       Fourteenth Amendment, protects commercial speech from unwarranted

       governmental regulation. Wallace v. Brown Cnty. Area Plan Comm’n, 689 N.E.2d

       491, 493 (Ind. Ct. App. 1998). The protection for commercial speech is based

       on the informational function of advertising. See Va. State Bd. of Pharmacy v.

       Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976). In a

       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 8 of 19
       predominantly free-enterprise economy, resources are allocated through

       numerous private economic decisions. Id. “It is a matter of public interest that

       those decisions, in the aggregate, be intelligent and well informed. To this end,

       the free flow of commercial information is indispensable.” Id.


[16]   However, the Constitution “affords a lesser protection to commercial speech

       than to other constitutionally guaranteed expression.” United States v. Edge

       Broad. Co., 509 U.S. 418, 426 (1993). Moreover, regulations that compel

       disclosures in advertising receive less protection than regulations that restrict or

       prohibit commercial speech. See Milavetz, Gallop & Milavetz, P.A. v. United States,

       559 U.S. 229, 249-50 (2010). Here, the Board found that Dr. Atcha violated

       828 IAC 1-1-18(k) and (m), regulations which primarily restrict speech, and 828

       IAC 1-1-14, which compels speech. We divide our analysis into two

       categories—regulations restricting the content of advertising and regulations

       compelling disclosure in advertising.


                    I. Restrictions on Dentists’ Advertising
[17]   Both parties agree that the appropriate test for whether restrictions on

       commercial speech comport with the First Amendment is the test outlined in

       Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S.

       557 (1980). Central Hudson sets forth a four-part test that begins by assessing

       whether the expression being restricted is entitled to First Amendment

       protection. Id. 566. If the expression is entitled to protection, the regulation of



       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 9 of 19
       that expression must be narrowly tailored to directly advance a substantial

       government interest. Id.


               At the outset, we must determine whether the expression is
               protected by the First Amendment. For commercial speech to
               come within that provision, it at least must concern lawful
               activity and not be misleading. Next, we ask whether the asserted
               governmental interest is substantial. If both inquiries yield
               positive answers, we must determine whether the regulation
               directly advances the governmental interest asserted, and
               whether it is not more extensive than is necessary to serve that
               interest.


[18]   Id. If the statements are false and misleading, the remainder of the four-part

       analysis of the Central Hudson test need not be completed. This is because only

       truthful advertising related to lawful activities is entitled to First Amendment

       protection. In re R.M.J., 455 U.S. 191, 203 (1982).


[19]   The State first argues that Dr. Atcha’s advertising is false and misleading and,

       therefore, not entitled to any constitutional protection. Alternatively, the State

       contends that regulations 828 IAC 1-1-18(k) and (m) meet the standards set out

       in Central Hudson, and that Dr. Atcha’s advertisements violate the regulations.

       Dr. Atcha, in addition to denying that his advertising is false or misleading,

       contends that the two regulations violate the First Amendment by failing the

       remaining four-part Central Hudson test. Additionally, Dr. Atcha argues that the

       regulations are vague and overbroad. We will address Section 18(k) and

       Section 18(m) separately, beginning by applying the Central Hudson standard to



       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 10 of 19
       each regulation as written, then to the facts of this case, and, finally, examining

       Dr. Atcha’s overbreadth and vagueness challenges.


                                 False or Misleading Claims of Specialty

[20]   We first apply the Central Hudson standard to Section 18(k), which provides in

       part that “No dentist shall announce available services in any way that would

       be false or misleading in any material respect.” We read the plain text of the

       regulation as prohibiting only those advertisements which announce services in

       a way that is materially false or misleading.

[21]   Because we read Section 18(k) to prohibit only false or misleading statements,

       the regulation affects only expression that does not have First Amendment

       protection. States retain the ability to prohibit misleading advertising entirely.

       In re R.M.J., 455 U.S. at 203. “[T]here can be no constitutional objection to the

       suppression of commercial messages that do not accurately inform the public

       about lawful activity.” Central Hudson, 447 U.S. at 563. Because false and

       misleading statements are not entitled to First Amendment protection, we need

       not analyze the remaining prongs of the Central Hudson test. The regulation is

       constitutionally permissible as written.

[22]   Turning to the application of Section 18(k) to Dr. Atcha’s advertisements, the

       State argues that there is substantial evidence that Dr. Atcha announced his

       services in a way that was false or misleading. We agree.

[23]   The record contains examples from Dr. Atcha’s advertisements that claim other

       dentists are not competent to perform the services that the State licenses them to

       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 11 of 19
       perform. Dr. Atcha claimed that “general dentists typically have little or no

       knowledge of the sedation process.” Appellant’s App. p. 191. But the State

       issues sedation permits to general dentists—indicating that general dentists do,

       in fact, have sufficient knowledge of the sedation process. Id. at 22. Dr. Atcha

       claimed that oral surgeons, periodontists, and prosthodontists may “do more

       harm than good”; that specialists have “no knowledge or understanding about

       the restorative end (tooth placement) of the [implant] procedure”; and that

       certain implant procedures are “too advanced for most dentists, oral surgeons

       and periodontists.” Id. at 255, 189. Again, the tasks described by Dr. Atcha are

       tasks that dentists are licensed by the State to perform. Moreover, oral

       surgeons, prosthodontists, and periodontists are required to obtain advanced

       certifications from institutions accredited by the American Dental Association.

       It is misleading to suggest that other general dentists and dental specialists are

       incapable of competently performing an implant procedure.

[24]   Dr. Atcha argues that the State may not rely on the naked assertion that claims

       of specialty are inherently misleading. However, Dr. Atcha did not merely

       assert his own expertise; he announced his services in conjunction with the

       implication that other dentists, who hold the same license he holds and provide

       the same services he provides, are not competent. General claims that duly

       licensed professionals, in a well-regulated profession, are incompetent to

       perform the very procedures for which the State licenses them are, at least,




       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 12 of 19
       misleading.1 Therefore, we conclude that there is substantial evidence to

       support the Board finding that Dr. Atcha violated Section 18(k) by falsely or

       misleadingly announced his available services.2


[25]   Dr. Atcha responds that Section 18(k) is overbroad and vague. Again, because

       the regulation prohibits only commercial speech that is false or misleading, it

       implicates no constitutionally protected conduct. His overbreadth challenge

       fails. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

       494-95 (1982).

[26]   Turning to Dr. Atcha’s vagueness challenge, in general, there are two

       independent causes to invalidate a statute for vagueness: (1) the statute does not

       provide notice enabling ordinary people to understand the conduct that it

       prohibits; and (2) the statute potentially authorizes or encourages arbitrary or

       discriminatory enforcement. Tiplick v. State, No. 49S04-1505-CR-2872, 2015

       WL 5837690, at *2 (Ind. Oct. 7, 2015). To determine whether a regulation is

       vague, the Court begins by examining the facts in the current case because “a

       plaintiff who engages in some conduct that is clearly proscribed cannot




       1
        See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 652-53 (1985) (“When the
       possibility of deception is as self-evident as it is in this case, we need not require the State to conduct a survey
       of the public before it may determine that the advertisement had a tendency to mislead.”) (internal quotation
       omitted).
       2
         We need not explore whether claims of expertise or specialty, without more, would have been sufficient to
       violate the regulation. Additionally, having already found substantial evidence that Section 18(k) is violated,
       we do not address the portion of the regulation which compels disclosure that the advertiser is a general
       dentist. The Board also found Dr. Atcha violated that provision. The mandatory disclosure would be subject
       to the analysis in Part II, infra.

       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016                            Page 13 of 19
       complain of the vagueness of the law as applied to the conduct of others.” Id.

       Finally, the Court examines facial vagueness by determining whether the law is

       vague in all of its applications where, as here, the regulation does not implicate

       constitutionally protected conduct. Flipside, 455 U.S. at 494-95.


[27]   As applied to Dr. Atcha, Section 18(k) is not impermissibly vague. The

       ordinary person would understand that advertising claims such as oral

       surgeons, periodontists, and prosthodontists may “do more harm than good”

       and that “general dentists typically have little or no knowledge of the sedation

       process” are false and misleading and therefore violate the regulation.

[28]   Finally, to succeed in a claim that the regulation is vague on its face, Dr. Atcha

       “must demonstrate that the law is impermissibly vague in all of its

       applications.” Id. at 497. Proof of vagueness in some applications is

       insufficient to void the regulation. Id. at 495. As we have determined that the

       regulation is not vague as to Dr. Atcha’s advertising, he has not met his burden.

       His claim of facial vagueness also fails.


                            Claims of Superior Services or Better Materials

[29]   Next, the Board found that Dr. Atcha violated 828 IAC 1-1-18(m). Section

       18(m) provides that “[a]n advertisement indicating that superior services, better

       materials, or more skillful care are available in a particular office or by a group

       of practitioners may be deceptive.” The Board made clear in its Ultimate

       Findings of Fact that this section “would not have been violated if the

       advertisements were not in fact deceptive.” Appellant’s App. p. 26. We

       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 14 of 19
       understand the Board’s construction of the regulation to be that it bans only

       advertisements which claim better services, care, or materials in a way that is

       deceptive. An interpretation of regulations by the administrative agency

       charged with enforcing those regulations is entitled to great weight. “Indeed,

       when a court determines that an administrative agency’s interpretation is

       reasonable, it should terminate its analysis[.]” Indiana Dept. of Environmental

       Management v. Steel Dynamics, Inc., 894 N.E.2d 271, 274 (Ind. Ct. App. 2008).

       Therefore, we adopt the Board’s construction of Section 18(m).

[30]   As explained in the analysis of Section 18(k), the State may bar any advertising

       claim that is deceptive. Such claims have no First Amendment protection, and

       we need not go further with the Central Hudson analysis. See In re Keller, 792

       N.E.2d 865, 869 (Ind. 2003) (“[T]he advertisements are more likely to deceive

       the public than inform it and thus are not protected under the First

       Amendment’s commercial speech doctrine”). Section 18(m) is a

       constitutionally permissible restriction on commercial speech.

[31]   In applying the regulation to Dr. Atcha, the Board found his advertisement with

       pictures suggesting dentures and dental adhesives are poisonous to be deceptive.

       We agree. The State may prohibit advertising claims that dentures are

       poisonous where the claim is being made by a dentist for the purpose of selling

       implants.

[32]   Dr. Atcha also claims that Section 18(m) is overbroad and vague. His

       overbreadth claim fails for the same reasons it failed with respect to Section


       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 15 of 19
       18(k) above. Specifically, the Board construed the regulation to reach only

       deceptive commercial speech, which has no First Amendment protection.

       Therefore, the claim that the regulation is overbroad fails. See Flipside, 455 U.S.

       at 494-95.

[33]   His claim of vagueness also fails. An ordinary person would understand that

       the picture indicating that dentures and dental adhesives are poison is

       deceptive. It appears to be intended to persuade people with working dentures

       to undergo an implant procedure which may not be necessary. As with Section

       18(k) above, Dr. Atcha clearly violated the proscriptions of Section 18(m) by

       claiming better services or materials in a deceptive way.

[34]   Finally, addressing whether Section 18(m) is vague on its face, we begin by

       repeating that it does not implicate constitutionally protected conduct under the

       Board’s construction. Dr. Atcha has not “demonstrate[d] that the law is

       impermissibly vague in all of its applications.” Id. at 497. Therefore, his claim

       of vagueness fails.


[35]   In summary, both Sections 18(k) and 18(m) are constitutional restrictions on

       dental advertising and there is substantial evidence supporting the Board’s

       Ultimate Findings of Fact that Dr. Atcha violated 828 IAC 1-1-18(k) and (m).

       Therefore, we reverse the trial court’s decision with respect to these two

       regulations.




       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 16 of 19
         II. Compelled Disclosure in Dentists’ Advertising
[36]   Next, the State argues that the trial court erred by finding that 828 IAC 1-1-14

       violates the First Amendment. 828 IAC 1-1-14 compels dental practices to list

       every dentist in every advertisement. The analysis of compelled commercial

       speech differs from the analysis of prohibited speech because of the material

       difference between restricting what can be said and requiring advertisers “to

       provide somewhat more information than they might otherwise be inclined to

       present.” Zauderer, 471 U.S. at 650. Unjustified or unduly burdensome

       disclosure requirements might offend the First Amendment by chilling

       protected commercial speech. Id. at 651. However, “an advertiser’s rights are

       adequately protected as long as disclosure requirements are reasonably related

       to the State’s interest in preventing deception of consumers.” Id.


[37]   The State relies on Zauderer in support of its position that it may compel a

       dental practice to disclose all of the dentists it employs in every advertisement.

       In Zauderer, however, the issue was a lawyer’s advertisement that said “[i]f there

       is no recovery, no legal fees are owed by our clients.” Id. at 631. Zauderer’s

       advertisement did not include a compulsory disclosure explaining how the

       contingency fee would be calculated, or notify consumers that they would still

       be liable for any costs incurred. Id. at 633. “[T]he advertisement would suggest

       that employing appellant would be a no-lose proposition in that his

       representation in a losing cause would come entirely free of charge.” Id. at 652.

       The Supreme Court found it reasonable to require disclosure of potential

       liability for costs in contingent-fee advertisements in light of the “self-evident”

       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 17 of 19
       potential for deception—very few non-lawyers would be aware of the

       distinction between fees and costs. Id. at 653.


[38]   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 as Dr. Atcha.

       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. We

       do not see a similar, “self-evident” potential for deception in this case.3

[39]   Without an adequate justification for the compulsory listing of all dentists in

       advertisements, the State’s additional argument that it is not unduly

       burdensome for Dr. Atcha to list the other dentists in his practice is unavailing.

       Finding no justification for the compulsory listing of all dentists in the record,

       we find 828 IAC 1-1-14 unconstitutional.

[40]   We, therefore, reverse the trial court’s decision with respect to 828 IAC 1-1-

       18(k) and (m), affirm the trial court’s decision with respect to 828 IAC 1-1-14,

       and remand to the Board for reassessment of the penalty in light of this

       decision.




       3
        Likewise, requiring a law firm to list every attorney on every advertisement would be unjustified and
       unduly burdensome.

       Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016                      Page 18 of 19
Robb, J., and Pyle, J., concur.




Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 19 of 19
