FIRST AMENDMENT COMMERCIAL SPEECH CLAIMS IN DENTISTRY: How the Dental Profession’s Specialty Advertising Restrictions Have Come back to Bite the ADA and State Dental Boards

JAKE TORKEO

J.D., 2020, Indiana University Robert H. McKinney School of Law; B.S., 2017, Indiana University – Purdue University Fort Wayne – Fort Wayne, Indiana.

Advertising is an inescapable and increasingly prevalent aspect of life. Humans are incessantly presented with advertisements throughout the day from the moment they check their emails or open Twitter in the morning. A report published by Forbes in 2017 estimated that Americans are exposed to between 4,000 and 10,000 advertisements a day. But the noise and distractions caused by these ploys for our attention serve a purpose. Whether touting the latest and greatest nutritional fad, a streaming service full of binge-worthy series, or an investment platform capable of bringing you financial peace of mind, advertisements are produced with the same goals in mind: providing the consumer with information regarding the product or service, attracting the clientele that the producer of the advertisement seeks to engage, and increasing competition in the respective market.

The same principles apply to advertisements in the professional industries. Professionals in the legal and medical fields seek to inform prospective clients or patients about the specifics of the individual’s practice and gain a competitive advantage over their peers. Often advertising is the most effective approach. Consumers of professional services, such as a client searching for an attorney to represent them or a patient seeking the expertise of a physician, are best served by receiving a wide array of information regarding the professionals available in their area. The more informed the consumer, the more likely they find the practitioner best suited to meet their needs.

However, professional associations such as the American Bar Association (“ABA”), American Medical Association (“AMA”), and the American Dental Association (“ADA”) historically limited their members’ ability to advertise under the guise of maintaining professional standards and protecting the easily influenced general public.

Today, the legal profession no longer follows that model. In 1977, the Supreme Court held that attorneys possess a right to free speech that trumps the ABA’s interests in barring legal advertisements. In the subsequent decades, legal advertisements have become incredibly creative, albeit at times less than professional, with some attorneys and law firms going to extreme lengths to market their practices. In 2014, a Georgia law firm specializing in DUI defense distributed paper bags designed to conceal a beer can. In an effort to target their desired audience, the law firm’s name on the bags was clearly designed to imitate a popular craft brewery’s logo. In Texas, two attorneys wrote and performed a three-and-a-half-minute song entitled “Don’t Eat Your Weed” in which the attorneys instructed prospective clients to avoid concealing or destroying marijuana during traffic stops to avoid felony charges. The song was played on local radio stations and posted on the law firm’s YouTube channel where it has received over five hundred and thirty-eight thousand views.

Both of these outlandish advertisements are permissible, although certainly not advisable, under the ABA Model Rules of Professional Conduct, which today require attorneys to avoid “false or misleading” communications regarding their legal services.

The dental profession also has its fair share of professionals who have gone to extreme lengths to get the attention of consumers. In 2018, the Renaissance Dental Center in Raleigh, North Carolina, promoted its teeth-whitening treatments in a regrettable manner. Three Caucasian dentists from the practice were featured in the advertisement wearing “cultural garb,” such as a Scottish highlander outfit, a Native American styled costume, and a Japanese kimono.

This Note outlines the significant progress already achieved in the fight for dentists’ First Amendment rights and argues that legislation is needed to remove the remaining restrictive statutes that limit their ability to advertise as specialists. In order to do so, Section I begins by detailing the role played by the ADA and state dental boards across the country. Section II then provides a brief background of commercial speech case law, which sets the foundation for an analysis of the circuit split between the 11th and 5th Federal Circuits in Section III. The circuit split illustrates the opposing arguments utilized by state dental boards and dental specialists. Section IV concludes with an up to date assessment of advertising in the dental profession and an analysis of how unrestricted dental advertising will benefit both the profession and the consumers of its services. [Read entire Article here].

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