On June 19, the U.S. Court
of Appeals for the Fifth Circuit (Fifth Circuit) affirmed a lower court’s decision finding
that it is unconstitutional to prevent dentists from advertising as specialists
in areas not recognized as specialties by the American Dental Association (ADA).
The American Academy of
Implant Dentistry (AAID) filed suit challenging the constitutionality of a
regulation promulgated by the Texas State Board of Dental Examiners that
restricts dentists from advertising to the public certain specialties unless
those specialties are recognized by the ADA.
The Board enacted language that
states “a dentist may advertise as a specialist or use the terms ‘specialty’ or
‘specialist’ to describe professional services in recognized specialty areas
that are: (1) recognized by a board that certifies specialists in the area of the
specialty; and (2) accredited by the Commission on Dental Accreditation of the
American Dental Association [CODA].” The restrictive language is the focus of
Plaintiffs asserted that
the regulatory provision infringed on their First Amendment right to engage in
“truthful, non-misleading commercial speech and violated their Fourteenth
Amendment due process and equal protection rights by impermissibly delegating
power over who may advertise as a specialist to the ADA, a private organization
comprised of members in competition with [them] and with a direct financial
stake. . .” Also, plaintiffs complained that even when dentists had received
training and certification in areas of dentistry represented by the organizational
plaintiffs, Texas rules restricted them from “expressing or implying a
specialization in these disciplines because they are not ADA-recognized
On Jan. 21, 2016, the U.S.
District Court for the Western District of Texas ruled that dentists in Texas had
the right to let patients know their practice specialty. Furthermore, the District
Court prohibited the Texas State Board of Dental Examiners from enforcing the
regulatory restriction. The District Court’s decision was appealed.
On June 19, the Fifth
Circuit upheld the District Court’s ruling that the restriction against
advertising as specialists violated the First Amendment right to free
commercial speech for individual dentists and dental associations.
In the Fifth Circuit’s
opinion, the court stated that for commercial speech to be protected under the
First Amendment, it “must concern lawful activity and not be misleading.” In
this case, all parties agree that advertising as a “specialist in the fields of
implant dentistry, dental anesthesiology, oral medicine and orofacial pain” is
lawful. As a result, the issue before the Fifth Circuit was whether the term
specialist was “devoid of intrinsic meaning,” and thus inherently misleading as
used by the plaintiffs. The term “specialist,” the court found, “conveys a
degree of expertise or advanced ability” and its use was not misleading.
The following is the result
of the decision by the Fifth Circuit:
- Right to advertise as specialist: Dentists
in Texas have the right to let patients know their practice specialty as a
result of the Fifth Circuit’s opinion. Dentists who have earned board
certification from the certifying board sponsored by the AAID or those of the plaintiff’s
organizations may advertise that they are specialists in Texas.
- Recognized as specialist by jurisdiction:
The ADA House of Delegates, during its 2016 annual meeting in Denver, passed Resolution 65, which conforms to the District
Court’s ruling that specialists should be able to practice outside their
announced specialties if educationally qualified and recognized as a specialist—either
adopted by the ADA or accepted in the jurisdiction in which they practice.
This case involves several plaintiffs. The
organizational plaintiffs include
the American Academy of Implant Dentistry, the American Society of Dental Anesthesiologists, the
American Academy of Oral Medicine, and the American
Academy of Orofacial Pain. The individual plaintiffs include five dentists,
three of whom are in private practice and two of whom are professors at the University
of Texas Health Science Center [at San Antonio] School of Dentistry. The
individual plaintiffs limit their practice to one of the following practice
areas: implant dentistry, dental anesthesiology, oral medicine, and orofacial