Which of Maryland's 1985 restrictions on dentist advertising, like bans on guarantees, painless-treatment claims, and displaying dental appliances, actually held up under the First Amendment?

Plain-English summary

The President of Maryland's State Board of Dental Examiners asked the Attorney General to revisit, in light of new Supreme Court case law and a decade of regulatory change, an earlier 1977 opinion on the constitutionality of the state's restrictions on dentist advertising. The opinion walked through every clause of HO §4-502 and the Board's implementing regulation, COMAR 10.44.06, applying the line of commercial-speech cases running from Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council through Zauderer v. Office of Disciplinary Counsel, and sorted each provision into constitutional and unconstitutional categories.

The opinion found constitutional: the ban on deceptive or misleading advertising generally, the ban on claiming an unconditional guarantee of successful treatment (while permitting truthful money-back guarantees), the ban on unverifiable "superior work" claims, the requirement that dentists not claim board-recognized specialties they do not hold, the ban on advertising by unlicensed persons, the ban on predictions of "future success" based on past statistics, procedural (non-content) rules for broadcast advertising, the requirement to disclose the advertiser's identity, rules against bait-and-switch fee advertising, and the rule holding a dentist responsible for advertising done on his or her behalf. The opinion found unconstitutional: the flat ban on claiming painless treatment (since some procedures genuinely are painless and that fact may be advertised), the ban on mentioning particular drugs, materials, or methods used, the ban on displaying dental appliances in an office window, the ban on advertising prices for "non-routine" dental work, the ban on using full professional titles like "Doctor of Dental Surgery" on a sign, the near-total ban on testimonials from anyone but a patient, and the ban on dramatizations, animation, or lyrics in broadcast advertising. In each unconstitutional case, the opinion reasoned that truthful, non-deceptive versions of the banned speech existed and that the First Amendment required the Board to police actual deception case by case rather than banning an entire category of speech outright. An editor's note records that the General Assembly substantially revised the statute the following year, Chapter 744, Laws of Maryland 1986, to fix the identified defects, while retaining the "dental surgeon" sign restriction after further advice from this Office.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland dentist in 1985 legally advertise that a procedure was painless?
The opinion concluded the flat ban on advertising "painless" treatment, HO §4-502(a)(2), was unconstitutional, because some procedures genuinely could be performed without pain and a truthful claim to that effect could not be suppressed, though the Board could still prosecute claims that were actually deceptive and could require disclosures about when a procedure qualified as painless.

Why did the opinion strike down the ban on dentists mentioning the drugs or methods they used in ads?
The opinion found HO §4-502(a)(5) unconstitutional because a truthful statement that a dentist used a particular anesthetic, material, or method was not inherently misleading, rejecting the 1977 opinion's reasoning that such advertising might lead patients to believe they, rather than the dentist, would choose their own treatment.

Was it constitutional to require dentists to prove they were a recognized "specialist" before advertising as one?
Yes. The opinion upheld HO §4-502(b)(1)(ii) and §4-503(a), which barred using a specialty designation like "orthodontist" unless the Board had identified the dentist as a specialist in that field, reasoning that this protected the defined meaning of specialty terms and served a compelling interest in ensuring specialty claims were accurate, unlike a total ban on describing any non-routine service.

Could the Board ban all patient testimonials in dental advertising?
No. The opinion found the near-total ban on testimonials and endorsements in COMAR 10.44.06.03B(9) unconstitutional as overinclusive, since testimonials from people other than patients, such as professional colleagues, were not inherently misleading, and the First Amendment required case-by-case policing of misleading testimonials rather than a blanket ban.

Did the state get to ban cartoons, dramatizations, and demonstrations in dentists' TV and radio ads?
The opinion concluded no: COMAR 10.44.06.03B(11)(d)'s content restrictions on broadcast advertising were unconstitutional under Zauderer's reasoning that visual and dramatic elements in advertising serve legitimate communicative functions and must be policed case by case for actual deception, not banned outright, though it noted the issue remained unsettled elsewhere given a contrary Iowa Supreme Court decision the U.S. Supreme Court had let stand on procedural grounds.

Background and statutory framework

The opinion built on the Supreme Court's developing commercial-speech doctrine: Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), first held that a state could not completely suppress truthful advertising of a lawful activity, while still permitting bans on false or misleading advertising and reasonable time, place, and manner rules; Bates v. State Bar of Arizona, 433 U.S. 350 (1977), extended that protection to professional services advertising; Friedman v. Rogers, 440 U.S. 1 (1979), upheld a ban on optometrist trade names given their inherent potential for manipulation; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980), synthesized the doctrine into a four-part test requiring that restrictions on non-misleading speech directly advance a substantial government interest and be no more extensive than necessary; In re R.M.J., 455 U.S. 191 (1982), held that states could not flatly prohibit potentially misleading categories of information (like a lawyer's areas of practice) when non-deceptive presentation was possible; and Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the most recent case, struck down Ohio's bans on legal-advice content and illustrations in attorney advertising while upholding a narrowly tailored fee-disclosure requirement.

Applying that framework to HO §4-502 and COMAR 10.44.06, the opinion repeatedly relied on the same organizing principle: a category of advertising could be banned outright only if it was "inherently misleading," R.M.J., 455 U.S. at 206, and otherwise the Board had to bear "the costs of distinguishing the truthful from the false," Zauderer, 471 U.S. at 646. It distinguished ordinary commercial puffery, which some cases suggested was less protected in health-care advertising given the public's difficulty verifying quality claims, Bolton v. Kansas State Bd. of Healing Arts, 473 F. Supp. 728 (D. Kan. 1979), from purely factual claims about a dentist's methods, credentials, or specialty status. On specialty designations specifically, the opinion read the restriction narrowly, consistent with Barnett v. Board of Dental Examiners, 293 Md. 361 (1982), to bar only the claim of one of the statutorily defined specialties without Board recognition, not the description of other non-routine services a dentist actually performed.

Citations

Statutes:

• HO §4-502(a)(1) (ban on advertising a guarantee of dental work)
• COMAR 10.44.06.03B(10) (permits truthful money-back guarantee advertising)
• HO §4-502(a)(3) (ban on claiming superior dental work)
• COMAR 10.44.06.03B(5) (ban on stating/implying superior service)
• HO §4-502(a)(4) (ban on deceptive or misleading advertising)
• COMAR 10.44.06.03A (basic deceptive/misleading advertising ban)
• COMAR 10.44.06.03B(1) (ban on material misrepresentation of fact)
• COMAR 10.44.06.03B(2) (ban on omitting facts necessary to avoid a misleading statement)
• COMAR 10.44.06.03B(7) (ban on statements likely to deceive an ordinary prudent person)
• HO §4-502(b)(1)(ii) (specialty designation restriction)
• HO §4-503(a) (ban on representing oneself as a specialist without Board identification)
• COMAR 10.44.06.03B(4) (ban on claiming unrecognized specialist status)
• HO §4-502(c) (ban on unlicensed persons advertising dental appliance services)
• HO §4-602(a)(1) (ban on unlicensed persons representing authorization to practice dentistry)
• COMAR 10.44.06.03B(3) (ban on statements creating unjustified expectations)
• COMAR 10.44.06.03B(8) (ban on past-performance predictions of future success)
• COMAR 10.44.06.03B(11)(a), (b), and (c) (procedural broadcast advertising requirements)
• COMAR 10.44.06.03B(13) (disclosure of advertiser's identity)
• COMAR 10.44.06.04 (deceptive fee advertising practices)
• COMAR 10.44.06.05 (dentist responsibility for advertising)
• HO §4-502(a)(2) (ban on advertising painless dental work)
• HO §4-502(a)(5) (ban on advertising use of particular drugs/methods)
• HO §4-502(a)(6) (ban on exhibiting dental appliances to the public)
• HO §4-502(a)(7) (ban on advertising non-routine work free or for a stated price)
• COMAR 10.44.06.03B(6) (fee advertising restrictions)
• COMAR 10.44.06.03B(12) (ban on advertising non-routine services)
• HO §4-502(b)(1)(i) (ban on certain professional titles on signs)
• COMAR 10.44.06.03B(9) (testimonials and endorsements ban)
• COMAR 10.44.06.03B(11)(d) (broadcast advertising content restrictions)
• HO §4-314(a)(8) (discipline for using an in-person solicitor)
• HO §4-503(b) (Board determination of specialist qualification)
• HO §4-503(c) (list of recognized dental specialties)
• COMAR 10.44.14.03 (Board-recognized specialties)
• COMAR 10.44.14.04 (specialist identification qualifications)
• COMAR 10.44.14 (specialist identification procedure)
• former Article 32, §12(a) (predecessor complete ban on dental advertising)
• former Article 32, §11(k)(1) (predecessor guarantee/painless-work ban)
• former Article 32, §11(k)(2) (predecessor superiority/price advertising ban)
• former Article 32, §11(k)(3) (predecessor drug/method and appliance display ban)
• former Article 32, §16 (predecessor title/specialty designation rule)
• HO §4-302(d) (dental degree requirement for licensure)
• HO §4-308 (dentist authorized to practice in any specialized area)
• HO §4-603 (related unlicensed practice provision)
• HO §4-301 (general prohibition on unlicensed dental practice)
• HO §4-601(a) (related unlicensed practice provision)
• 16 C.F.R. §251.1(b) (FTC guide on the word "free" in advertising)
• 16 C.F.R. Part 255 (FTC guides on endorsements/testimonials)
• 16 C.F.R. Part 233 (FTC guides against deceptive pricing)
• Chapter 744, Laws of Maryland 1986 (later legislative revision of HO §4-502)

Cases:

• Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)
• Valentine v. Chrestensen, 316 U.S. 52 (1942)
• Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
• Friedman v. Rogers, 440 U.S. 1 (1979)
• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)
• Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980)
• In re R.M.J., 455 U.S. 191 (1982)
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)
• Thornhill v. Alabama, 310 U.S. 88, 97 (1940)
• Bolton v. Kansas State Bd. of Healing Arts, 473 F. Supp. 728, 734 (D. Kan. 1979)
• Spencer v. Honorable Justices of Supreme Court of Pa., 579 F. Supp. 880, 887-88 (E.D. Pa. 1984)
• Katherine Gibbs School, Inc., v. FTC, 612 F.2d 658, 665 (2d Cir. 1979)
• Barnett v. Board of Dental Examiners, 293 Md. 361 (1982)
• In re James D., 295 Md. 314, 327 (1983)
• Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d Cir. 1976)
• Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219, 1229 (S.D. Iowa 1981)
• Committee on Professional Ethics v. Humphrey, 355 N.W.2d 565, 571 (Iowa 1984), vacated and remanded for reconsideration in light of Zauderer, 472 U.S. 1004 (1985)
• Baker v. Registered Dentists of Okla., 543 F. Supp. 1177, 1181 (W.D. Okla. 1982)
• FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965)
• Committee on Professional Ethics v. Humphrey, 377 N.W.2d 643 (1985), appeal dismissed, 106 S.Ct. 1626 (1986)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

First Amendment—Commercial Speech—Health Occupations—Dentists—Survey of Dental Advertising Restrictions—Prohibitions Against False or Misleading Advertising are Constitutional—Various Other Prohibitions are Overbroad and Unconstitutional.

July 22, 1985

Stanley E. Block, D.D.S., President
Maryland State Board of Dental Examiners

The State Board of Dental Examiners has requested our opinion about the constitutionality of the advertising restrictions contained in the Health Occupations Article ("HO" Article) of the Maryland Code and in the Board's implementing regulation, COMAR 10.44.06.

This Office first examined the constitutionality of dental advertising prohibitions in 62 Opinions of the Attorney General 256 (1977). That Opinion (the "1977 Opinion") applied newly-emerging principles of First Amendment protection for commercial speech to the statutory prohibitions then in effect. The Board of Dental Examiners has asked us to revisit the issue in light of additional case law, changes in the statute, and the Board's subsequent adoption of implementing regulations.

For the reasons set forth below, we conclude that certain provisions of the statute and regulation are constitutional and, therefore, may be enforced by the Board of Dental Examiners. Other provisions are unconstitutional and unenforceable.

1. The following provisions are constitutional:

Guarantees—
HO §4-502(a)(1)
COMAR 10.44.06.03B(10)

Superiority claims—
HO §4-502(a)(3)
COMAR 10.44.06.03B(5)

Deception—
HO §4-502(a)(4)
COMAR 10.44.06.03A
COMAR 10.44.06.03B(1)
COMAR 10.44.06.03B(2)
COMAR 10.44.06.03B(7)

Specialty designations—
HO §4-502(b)(1)(ii)
HO §4-503(a)
COMAR 10.44.06.03B(4)

Advertising by unlicensed persons—
HO §4-502(c)
HO §4-602(a)(1)

Claims "likely to" raise "unjustified expectations"—
COMAR 10.44.06.03B(3)

Predictions—
COMAR 10.44.06.03B(8)

Procedural requirements for broadcast advertising—
COMAR 10.44.06.03B(11)(a), (b), and (c)

Disclosure of advertiser's identity—
COMAR 10.44.06.03B(13)

Deceptive types of fee advertising—
COMAR 10.44.06.04

Assignment of responsibility for advertising—
COMAR 10.44.06.05

2. The following provisions are unconstitutional:1

Representations of "painless[ness]"—
HO §4-502(a)(2)

Use of particular drugs or methods—
HO §4-502(a)(5)

Display of dental appliances—
HO §4-502(a)(6)

Advertising of non-routine services—
HO §4-502(a)(7)
COMAR 10.44.06.03B(6)
COMAR 10.44.06.03B(12)

Titles on signs—
HO §4-502(b)(1)(i)

Testimonials and endorsements—
COMAR 10.44.06.03B(9)

Content of broadcast advertising—
COMAR 10.44.06.03B(11)(d)

I
Dental Advertising Prohibitions

Advertising by dentists is subject to the following statutory restrictions, set forth in HO §4-502:

"(a) A licensed dentist may not advertise:
(1) To guarantee any dental work;
(2) To do any dental work painlessly;
(3) To do dental work in a superior manner;
(4) In a manner that tends to deceive or mislead the public;
(5) That the dentist uses any anesthetic, drug, formula, material, medicine, method, or system;
(6) By exhibiting any dental appliance to the general public at the place of practice of the licensee; or
(7) To do nonroutine dental work free or for a stated price.
(b) (1) A licensed dentist may not:
(i) Use the designations 'Doctor of Dental Surgery', 'Doctor of Dental Medicine', or 'Dental Surgeon' on a sign that bears the name of the licensee; or
(ii) Include a specialty designation in a card, letterhead, sign, telephone directory listing, or other printed matter that bears the name of the licensee, unless:

1. The licensee is identified by the Board [of Dental Examiners] as a specialist in the designated field under §4-503 of this subtitle; and
2. The language used to refer to the speciality is approved by the Board.
   (2) A licensed dentist may use the designations 'dr.', 'dentist', 'D.D.S.' or 'D.M.D.' on a sign that bears the licensee's name."
   (c) A person who is not licensed to practice dentistry may not solicit or advertise to the general public in any manner that the person alters, constructs, duplicates, repairs, or supplies a dental appliance."

In addition, HO §4-503(a) provides:

"A licensed dentist may not represent to the public that the licensee is a specialist in any field of specialized dental practice unless identified as a specialist in that field by the Board".2

Finally, HO §4-602(a)(1) contains an additional prohibition of advertising by unlicensed persons:

"Except as otherwise provided in this section, unless authorized to practice dentistry under this title, a person may not represent to the public by title, by description of services, methods, or procedures, or otherwise, that the person is authorized to practice dentistry in this State."3

The Revisor's Note that accompanies HO §4-502 states that, during the 1981 revision of these statutes, several provisions in the predecessor statute were deleted as patently unconstitutional.4 The Revisor's Note goes on to observe that at least one retained provision, HO §4-502(a)(7), is of "doubtful" constitutionality; understandably, though, the state of the law at the time of the revision did not permit a more definitive conclusion.

Since the 1977 Opinion, the State Board of Dental Examiners has adopted a regulation to govern advertising by dentists. COMAR 10.44.06. In essence, the regulation amplifies the statutory prohibition against advertising "that tends to deceive or mislead the public". HO §4-502(a)(4). The regulation does so by itemizing the types of statements or claims that the Board considers to be "deceptive or misleading".

II
Constitutional Status of Commercial Speech

A. Virginia Pharmacy

The principles that govern the application of the First Amendment to commercial speech have been evolving over the past decade. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), involving a ban on the advertising of prescription drug prices, the Supreme Court held that a state may not "completely suppress dissemination of concededly truthful information about entirely lawful activity". 425 U.S. at 773. Such a ban is incompatible with the protection that commercial speech enjoys under the First Amendment.5 However, the Supreme Court also cautioned that "some forms of commercial speech regulation are surely permissible". 425 U.S. at 770. The Court identified as "permissible" not only reasonable "time, place and manner restrictions", but also the flat prohibition of advertisements that are "false or misleading in any way". 425 U.S. at 771.

B. Bates

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court applied the First Amendment protection of commercial speech announced in Virginia Pharmacy to "truthful advertisement concerning the availability and terms of routine legal services". 433 U.S. at 384.6 As in Virginia Pharmacy, the Supreme Court was careful to observe that, although truthful advertising by attorneys "may not be subjected to blanket suppression", a state may prohibit "advertising that is false, deceptive, or misleading":

"Indeed, the public and private benefits from commercial speech derive from confidence in its accuracy and reliability. Thus, the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the commercial arena. . . . In fact, because the public lacks sophistication concerning legal services, the statements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. For example, advertising claims as to the quality of services, a matter we do not address today, are not susceptible to measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction." 433 U.S. at 383-84.

Moreover, a state may impose "reasonable restrictions on the time, place, and manner of advertising". 433 U.S. at 384. "And the special problems of advertising on the electronic broadcast media will warrant special consideration." Id.

C. Friedman v. Rogers

Two years later, in Friedman v. Rogers, 440 U.S. 1 (1979), the Supreme Court made clear that its previously announced criteria for permissible restrictions on commercial speech were not merely theoretical. It upheld the constitutionality of a Texas statute that flatly prohibited the use of trade names by optometrists. The Supreme Court found the prohibition to be justified because of both "a significant possibility" and an actual record of deception. In so finding, the Supreme Court distinguished the use of trade names from the price advertising at issue in Virginia Pharmacy and Bates:

"In those cases, the State had proscribed advertising by pharmacists and lawyers that contained statements about the products or services offered and their prices. These statements were self-contained and self-explanatory. Here, we are concerned with a form of commercial speech that has no intrinsic meaning. A trade name conveys no information about the price and nature of the services offered by an optometrist until it acquires meaning over a period of time by associations formed in the minds of the public between the name and some standard of price or quality. Because these ill-defined associations of trade names with price and quality information can be manipulated by the users of trade names, there is a significant possibility that trade names will be used to mislead the public." 440 U.S. at 12-13.

See also Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).7

D. Central Hudson

Then, in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980), involving a state ban on promotional advertising by an electric utility, the Supreme Court drew together the various doctrinal strands of the commercial speech cases into a summary of its analytical approach:

"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 [underlying the restriction of speech] 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." 447 U.S. at 566.

The Supreme Court again emphasized that misleading commercial speech may be suppressed altogether: "The government may ban forms of communication more likely to deceive the public than to inform it". 447 U.S. at 563.

E. R.M.J.

In the next pertinent case, In re R.M.J., 455 U.S. 191 (1982), the Supreme Court returned to the question of advertising by lawyers, this time advertising regarding a lawyer's background and areas of practice. This case involved a Missouri court rule that permitted lawyer advertising but "restricted [it] to certain categories of information, and in some instances, to certain specified language". 455 U.S. at 193. In particular, the pertinent rule, as interpreted by the court-appointed committee that enforced it, permitted the advertising of areas of practice only in the exact ways specified in the rule. Disciplinary action was brought against a lawyer for advertising in ways not permitted by the rule, for example, listing areas of speciality not specifically denominated in the rule.

After cataloging its prior cases, the Supreme Court summarized the applicable principles as follows:

"Commercial speech doctrine, in the context of advertising for professional services, may be summarized generally as follows: Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. When the particular content or method of the advertising suggests that it apparently is misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information may also be presented in way that is not deceptive. Thus, 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." 455 U.S. at 203.8

Applying these principles, the Supreme Court found that the First Amendment rights of the advertising lawyer had been violated. There had been no finding that the advertising was in fact misleading. "Nor could we say that it was inherently misleading, or that restrictions short of an absolute prohibition would not have sufficed to cure any possible deception." 455 U.S. at 206-07. In particular, the lawyer's advertising of areas of practice that deviated from the precise listing of approved areas was found to be constitutionally protected. The listing "present[ed] no apparent danger of deception", and no substantial state interest was promoted by the restriction. 455 U.S. at 205. "[Although the States may regulate commercial speech, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests." 455 U.S. at 207.

F. Zauderer

Finally, in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court firmly reiterated the basic constitutional protection afforded nondeceptive commercial speech.

In pertinent part, Zauderer involved three issues concerning advertising by lawyers: First, could Ohio prohibit truthful advertising on the grounds that it constituted "self-recommendation and . . . unsolicited legal advice"? Second, could it prohibit illustrations in advertising? Third, could it require certain additional disclosures in an advertisement about fees?

1. Unsolicited legal advice

The advertisement in question was intended to attract clients who might have tort claims regarding the Daikon Shield contraceptive device:

"The advertisement's information and advice concerning the Daikon Shield were . . . neither false nor deceptive: in fact, they were entirely accurate. The advertisement did not promise readers that lawsuits alleging injuries caused by the Daikon Shield would be successful, nor did it suggest that [the lawyer who advertised] had any special expertise in handling such lawsuits other than his employment in other such litigation. Rather, the advertisement reported the indisputable fact that the Daikon Shield has spawned an impressive number of lawsuits and advised readers that [the lawyer] was currently handling such lawsuits and was willing to represent other women asserting similar claims." 471 U.S. at 639-40.

In short, the advertisement was truthful, and Ohio did not contend otherwise. Rather, Ohio argued "that although [Zauderer's] advertising may itself have been harmless, may even have had the salutary effect of informing some persons of rights of which they would otherwise have been unaware, the State's prohibition on the use of legal advice and information in advertising by attorneys is a prophylactic rule that is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation against innocent defendants." 471 U.S. at 643.

The Supreme Court rejected this argument, which was said to be "in tension with our insistence that restrictions involving commercial speech that is not itself deceptive be narrowly crafted to serve the State's purposes". 471 U.S. at 644.9 Quoting R.M.J., the Court stated that "'the States may not place an absolute prohibition on certain types of potentially misleading information . . . if the information may also be presented in a way that is not deceptive.'" Id. (quoting 455 U.S. at 203).

Although not necessarily foreclosing any "prophylactic rule . . . in this area", the Supreme Court did emphatically reject Ohio's proffered justification for its prohibition, namely, "that it is intrinsically difficult to distinguish advertisements containing legal advice that is false or deceptive from those that are truthful and helpful, much more so than is the case with other goods or services". Such "difficulty" is not sufficient justification for a flat ban:

"Were we to accept the State's argument in this case, we would have little basis for preventing the government from suppressing other forms of truthful and nondeceptive advertising simply to spare itself the trouble of distinguishing such advertising from false or deceptive advertising. The First Amendment protections afforded commercial speech would mean little indeed if such arguments were allowed to prevail. Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful" 471 U.S. at 646.

2. Illustrations

Zauderer's advertisement contained an accurate drawing of a Daikon Shield. Despite its accuracy, the drawing nonetheless violated Ohio's rule prohibiting the use of any of illustrations in lawyers' advertising. Ohio sought to justify its rule by asserting that the use of illustrations in advertising would "creat[e] unacceptable risks that the public will be misled, manipulated, or confused", because illustrations "play on the emotions of [the] audience and convey false impressions". 471 U.S. at 648.

However, the Supreme Court held that the arguments "amount to little more than unsupported assertions". Id. Accepting them would permit a state to "prohibit the use of pictures or illustrations in connection with advertising of any product or service simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative." But, the Court wrote:

"[B]road prophylactic rules may not be so lightly justified if the protections afforded commercial speech are to retain their force. We are not persuaded that identifying deceptive or manipulative uses of visual media in advertising is so intrinsically burdensome that the State is entitled to forego that task in favor of the more convenient but far more restrictive alternative of a blanket ban on the use of illustrations." 471 U.S. at 649.

3. Required disclosures

Ohio required lawyers who advertised contingent-fee rates to disclose whether or not the fee was computed before or after payment of court costs. Zauderer's Daikon Shield advertisement referred to his contingency representation of plaintiffs in such cases ("If there is no recovery, no legal fees are owed by our clients."), but it failed to disclose the status of court costs.

The Supreme Court held that this aspect of Ohio's lawyer advertising rules could constitutionally be enforced:

"We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected so long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." 471 U.S. at 651.

The particular disclosure required by Ohio, the client's responsibility for court costs, "easily passes muster under this standard". Given the public's lack of awareness about the difference between "fees" and "costs", of which the Court was willing to take judicial notice, the possibility of deception is "self-evident" and need not be further demonstrated. 471 U.S. at 652.

III
Application of Constitutional Principles

A. Introduction

As the summary of pertinent case law in Part II makes clear, the statutory and regulatory prohibitions against various forms of dental advertising may constitutionally be enforced only against false, deceptive, or misleading advertising. We are aware of no constitutionally acceptable basis for the dental advertising prohibitions other than this prevention of deception. For example, fears about the commercialization of the profession of dentistry or of distasteful advertising, are not cognizable. See, e.g., R.M.J., 455 U.S. at 203-04.

A category of dental advertising may be banned altogether only if it is "inherently misleading". R.M.J., 455 U.S. at 206. Otherwise, the Board may not simply ban a category of advertising and prosecute all who violate the ban; rather, it must bear "the costs of distinguishing the truthful from the false". Zauderer, 471 U.S. at 646. Moreover, the Board may not impose a flat ban if deception can be averted through required disclosures.

Against this background, we examine each of the statutory and regulatory prohibitions.

B. Guarantees

HO §4-502(a)(1) provides that a dentist "may not advertise . . . to guarantee any dental work".

In considering the constitutionality of the predecessor of this provision, the 1977 Opinion pointed out that "the word 'guarantee' as used in this context can be taken to mean either a guarantee that the patient's money will be returned in the event that the dental work proves to be unsatisfactory, or it could refer to a guarantee that good results would flow from the dentist's work." 62 Opinions of the Attorney General at 264.10 The 1977 Opinion concluded, and we agree, that the provision is unconstitutional and hence unenforceable with respect to the advertising of the former type of guarantee:

"A money back guarantee is not inherently misleading or deceptive and serves to protect the consumer of dental services. The guarantee constitutes no more than one part of the financial transaction involved in arranging dental services, and a restriction on the advertising of such a guarantee would be unenforceable." Id.

On the other hand, advertising purporting to unconditionally guarantee a satisfactory result from treatment may, we think, be prohibited. The General Assembly could reasonably have concluded that the wide variety of dental ailments, the incomplete knowledge of disease causation, and the patient's own unpredictable diligence in the maintenance of dental hygiene make a "guarantee" of successful treatment inherently misleading. See Bates, 433 U.S. at 383-84. Cf. Zauderer, 471 U.S. at 640 n. 9 (Supreme Court decisions "have left open the possibility that States may prevent attorneys from making nonverifiable claims regarding the quality of their services").

The Board has, by regulation, acted to assure that this statutory provision will be enforced in a constitutional manner. The regulation prohibits advertisements that "[c]ontain or imply any guarantee of satisfaction, except the guarantee to return a fee if the patient is not satisfied with the treatment rendered". COMAR 10.44.06.03B(10). Given this regulatory gloss, which effectively permits truthful forms of "guarantee" advertising, we see no constitutional difficulty with HO §4-502(a)(1).

C. Representations of "painless[ness]"

HO §4-502(a)(2) prohibits a dentist from advertising that he or she will "do any dental work painlessly".

The 1977 Opinion regarded the predecessor of HO §4-502(a)(2) as constitutional.11 The 1977 Opinion simply stated, in conclusory terms, that "claims of painless surgery . . . are likely to be false or misleading". Id.12

This conclusion is too broad, in our view. Certainly, an undifferentiated claim of "painless dentistry" would be inherently misleading, for most dental procedures necessarily entail at least some pain (if only the pain that accompanies the administration of locally injected anesthetic).13 But, we understand, some procedures can now be performed without pain, and technological developments will likely expand the range of dental work that can be performed painlessly. If a dentist in fact does perform a procedure painlessly, the State may not constitutionally prohibit the dentist from informing potential patients of that fact.

We recognize that deceptive claims of painlessness have historically been used to seize the attention of those who fear dental treatment. The Board is constitutionally free both to prosecute claims and to require whatever accompanying disclosures are reasonably necessary to prevent deception, e.g., disclosure of the circumstances under which a procedure is in fact "painless". However, the First Amendment does not permit the suppression of a range of potentially true claims in order to safeguard against some deceptive ones. Zauderer, 471 U.S. at 646.

Therefore, HO §4-502(a)(2) is unconstitutional and unenforceable.

D. Superiority claims

HO §4-502(a)(3) prohibits claims by a dentist that work is done "in a superior manner". Similarly, COMAR 10.44.06.03B(5) prohibits claims that "[s]tate or imply superior service".

In the 1977 Opinion, the predecessor of HO §4-502(a)(3) was simply treated as constitutional, without further explanation. 62 Opinions of the Attorney General at 264-65.14 Apparently the 1977 Opinion viewed such advertising as a quality claim "not susceptible of measurement or verification . . . [and therefore] so likely to be misleading as to warrant restriction". Bates, 433 U.S. at 383-84. See also Zauderer, 471 U.S. at 640 n. 9.

We agree. As the Supreme Court said in Bates, "the public and private benefits from commercial speech derive from confidence in its accuracy and reliability." 433 U.S. at 383. But a wholly subjective and unverifiable claim of superiority will often be inaccurate and will always be unreliable. It is, in our view, inherently misleading. We emphasize, however, that a mere factual reference to a dentist's qualifications, training, or experience cannot reasonably be taken to claim or imply superiority and is outside the scope of the prohibition.15

It may be said that superiority claims are merely harmless puffery. But, as the Supreme Court has intimated and as one lower court has squarely held, puffery that might be acceptable elsewhere is not acceptable in health care advertising:

"In view of . . . the serious nature of the services to be advertised, we are convinced that only the highest standards of truthfulness should apply. We are not concerned here with the 'squeezable softness of Charmin' or the advantages of 'mountain grown coffee.' The practice of puffery, well established in non-professional advertising, has no place in the advertising of healing arts professionals. The well-being of people who may be unsophisticated in health care matters is a compelling interest of the state. The licensor of healing arts professionals has the right and the duty to demand strict adherence to truthful advertising, advertising that is verifiable." Bolton v. Kansas State Bd. of Healing Arts, 473 F. Supp. 728, 734 (D. Kan. 1979).

See also Spencer v. Honorable Justices of Supreme Court of Pa., 579 F. Supp. 880, 887-88 (E.D. Pa. 1984) (sustaining ban on "the use of terms which subjectively evaluate a lawyer's credentials or the quality of his services").

E. Deception

HO §4-502(a)(4) prohibits advertising "[i]n a manner that tends to deceive or mislead the public". Similarly, COMAR 10.44.06.03A contains the following basic ban of deceptive or misleading advertising:

"A dentist may not, on behalf of himself, his partner, or his associate or for any other dentist affiliated with him, use or participate in the use of any form of public communication which contains a deceptive or misleading statement or claim."

As every commercial speech case has emphasized, the prevention of deceptive or misleading advertising is a proper basis for State prohibition. Thus, HO §4-502(a)(4) and the basic ban stated in COMAR 10.44.06.03A are constitutional.

However, the regulation follows its basic ban with an itemization of the categories of statements or claims that are "deceptive or misleading". Of course, the mere labeling of a category of advertising as misleading does not suffice to meet the constitutional test, and we shall discuss the constitutionality of each item separately.

The first two specific categories indeed identify inherently misleading claims: advertising statements that "[c]ontain a material misrepresentation of fact" or that "[f]ail to state any fact necessary to make the statement not misleading" are prohibited. COMAR 10.44.06.03B(1) and (2). These provisions identify well-established elements of deception and are thus constitutional. See, e.g., Katherine Gibbs School, Inc., v. FTC, 612 F.2d 658, 665 (2d Cir. 1979) ("The failure to disclose material information may cause an advertisement to be false or deceptive even though it does not state false facts."). Likewise, the prohibition in COMAR 10.44.06.03B(7) of statements that "[c]ontain a representation or implication that is likely to cause an ordinary prudent person to misunderstand or to be deceived" merely restates an element of deception and is unquestionably constitutional.

The other items, however, raise different questions, as discussed in the sections below.

F. Use of particular drugs or methods

HO §4-502(a)(5) prohibits a representation that "the dentist uses any anesthetic, drug, formula, material, medicine, method or system".

The 1977 Opinion described the predecessor of this provision as presenting "a difficult constitutional problem". 62 Opinions of the Attorney General 266.16 That is an understatement: one can readily envision a wide variety of accurate advertisements of this kind. The 1977 Opinion sustained the constitutionality of the provision, albeit recognizing that it presents "special dangers of overreaching and unconstitutional application", with this puzzling observation:

"Advertising of the type here prohibited could be misleading if the patient were led to believe that he or she, rather than the dentist, would choose the particular treatment, anesthetic, drug, etc. advertised. The dentist may not abdicate his responsibility for the patient's treatment, and he therefore may not directly or indirectly indicate his willingness to abdicate his responsibility." 62 Opinions of the Attorney General at 267.

Frankly, we do not understand this point. The advertisement by a dentist that he or she uses a particular methodology or medication can hardly be understood as an open invitation to patients to choose their preferred method of treatment. The claims prohibited by HO §4-502(a)(5) are not inherently misleading.

Therefore HO §4-502(a)(5) is unconstitutional and unenforceable.

G. Display of dental appliances

HO §4-502(a)(6) prohibits advertising by "exhibiting any dental appliance to the general public at the place of practice of the licensee".

The predecessor of HO §4-502(a)(6) was treated in the 1977 Opinion as constitutional, for the same reason as was said to justify the prohibition on advertising the use of particular drugs or methods. See Part III F above.17 We do not see why the display of a dental appliance is inherently misleading. The display of the appliance is an implied representation that the appliance is used in the dentist's practice. If it is in fact so used, the display is truthful commercial speech.

Therefore, HO §4-502(a)(6) is unconstitutional and unenforceable.

H. Advertising of non-routine services

1. Prohibitions

HO §4-502(a)(7) prohibits the representation that a dentist will "do non-routine dental work free or for a stated price". This provision reflects an effort to preserve a constitutional form of restriction on price advertising.

In addition, COMAR 10.44.06.03B(6) prohibits all advertising relating to fees, except for the following:

"(a) A statement of the fee for an initial consultation,
(b) A statement of the fixed fees for routine dental services, provided there is reasonable disclosure of all relevant variables so that the statement would not be misunderstood or be deceptive to a layman,
(c) The availability of credit arrangements[.]"

The previous ban on "advertising prices for professional service" (former Article 32, §11(k)(2)) was patently unconstitutional. See 62 Opinions of the Attorney General at 265. But even the revised provision, limited as it is to "non-routine dental work", was described in the Revisor's Note as of "doubtful" constitutionality.18

The Board has given regulatory content to the statutory term "non-routine dental work" by defining its opposite in COMAR 10.44.06.03B(12):

"[R]outine dental services . . . are services that:
(a) Are performed frequently in the practice,
(b) Are usually provided at a set fee,
(c) Are provided with little or no variation in technique, [and]
(d) Include all professionally recognized components within generally accepted standards".

This regulation bans all advertising that "relate[s] to other than routine dental services".

Thus, a dentist is presumably permitted to advertise, for example, the price of a tooth extraction. But a dentist may presumably say nothing about the price of "diagnosis and treatment of jaw problems (temporo-mandibular joint dysfunction)", to take an example from the current Yellow Pages. Indeed under the regulation, the mere mention of such a "non-routine" service in advertising is prohibited.

In our view, the statutory flat ban on price advertising of "non-routine dental work" and the ancillary regulatory prohibition in COMAR 10.44.06.03B(6) cannot survive constitutional scrutiny. Obviously, a dentist must base his or her charges for non-routine services on some methodology. It follows, then, that truthful advertising about that pricing methodology is quite possible, for example, a statement of a price range.

To be sure, a procedure may be so uncommon or highly variable that any statement of price about it would be misleading. But if so, the dentist responsible for the advertising would be subject to discipline for violating the ban on deceptive or misleading advertising in HO §4-502(a)(4), the constitutionality of which is clear.

For the same reason, the ban in COMAR 10.44.06.03B(12) on all advertising related to "non-routine" services is unconstitutional and unenforceable. Surely many advertisements of this kind, for example, the simple representation that a non-routine service is available, would not be misleading.

Therefore, HO §4-502(a)(7) and the ancillary prohibitions in COMAR 10.44.06.03B(6) and (12) are unconstitutional and unenforceable.

2. Mandated disclosure

Although a flat ban on price and other advertising of nonroutine dental services is impermissible, the Board remains constitutionally free to require appropriate disclaimers or additional disclosures, in order to reduce the risk of deception. Of course, any required disclosure must be reasonable, that is, not so "unduly burdensome" as to "chil[l] protected commercial speech". Zauderer, 471 U.S. at 651. See Part II F 3 above.

Thus, the Board acts within its constitutional discretion when it requires "reasonable disclosure of all relevant variables so that [a] statement [about the prices] would not be misunderstood or be deceptive to a layman". COMAR 10.44.06.03B(6)(b). We understand the phrasing "reasonable disclosure of all relevant variables" to be a sufficient safeguard against disclosure requirements so burdensome as to unconstitutionally chill the exercise of First Amendment rights.19

I. Titles on signs

HO §4-502(b)(1)(i) prohibits the "[u]se [of] the designations 'Doctor of Dental Surgery', 'Doctor of Dental Medicine', of 'Dental Surgeon' on a sign that bears the name of the licensee". This prohibition on the use of certain titles must be read in conjunction with HO §4-502(b)(2), which does allow the use of certain specified designations on a sign: "A licensed dentist may use the designations 'dr.', 'dentist', 'D.D.S.', 'D.M.D.' on a sign that bears the licensee's name."

The 1977 Opinion regarded the predecessor of this statutory restriction to be constitutional:

"To the degree the statute prohibits the inclusion of certain titles such as "dental surgeon" . . . the statute is constitutional. The legislature may act to prohibit false or misleading claims. . . . The claim to an improper title may be so inherently misleading to a potential patient or to the public that some action prescribing such claims would be constitutional." 62 Opinions of the Attorney General at 269.20

We disagree. Again, we believe that the flat ban on the use of particular designations is not "the least restrictive possible means" of averting deception. Zauderer, 471 U.S. at 644. "The states may not place an absolute prohibition on certain types of potentially misleading information . . . if the information also may be presented in a way that is not deceptive." R.M.J., 455 U.S. at 203.

If a dentist holds the degree of Doctor of Dental Surgery or Doctor of Dental Medicine, we do not see why the use of the full title on a sign is misleading, especially since the abbreviated form of the same designation is obviously regarded by the statute as nondeceptive.21 Similarly, if a dentist holds the degree of Doctor of Dental Surgery, the statement on a sign that he or she is a "dental surgeon" is not misleading.

Therefore, HO §4-502(b)(1)(i) is unconstitutional and unenforceable. Of course, deceptive misuse of titles, for example, the "claim to an improper title" to which the 1977 Opinion adverted, remains subject to prohibition under HO §4-502(a)(4).

J. Specialty designations

HO §4-502(b)(1)(ii) prohibits the use of "a speciality designation in a card, letterhead, sign, telephone directory listing, or other printed matter that bears the name of the licensee", unless:

"(1) The licensee is identified by the Board as a specialist in the designated field under §4-503 of this subtitle; and
(2) The language used to refer to the specialty is approved by the Board."

Moreover, HO §4-503(a) prohibits any "represent[ation] to the public that the licensee is a specialist in any field of specialized dental practice unless identified as a specialist in that field by the Board". HO §4-503(c) lists the recognized specialties.22

The 1977 Opinion approved the predecessor of HO §4-502(b)(1)(ii), because "the claim of a specialty area not generally recognized as such . . . may be so inherently misleading to a potential patient or to the public that some action pr[o]scribing such claims would be constitutional." 62 Opinions of the Attorney General at 269.23

Since the 1977 Opinion, the Board has adopted regulations that further elaborate on the process of specialty identification. One provision in the Board's advertising regulation prohibits representations which "[s]tate or imply that a dentist is a certified or recognized specialist other than as recognized by the Council on Dental Education of the American Dental Association". COMAR 10.44.06.03B(4). And a recently adopted regulation prescribes the procedures for "identification as [a] specialist by the Board". COMAR 10.44.14 (adopted December 20, 1984).24

Taken as a whole, we believe that these statutory and regulation restrictions are constitutional. Unlike the situation in R.M.J. (see Part II E above), the restrictions here do not forbid accurate advertising of a wide range of specialized services. Thus, to cite some examples from the current Yellow Pages, dentists are not prohibited from advertising "cosmetic dentistry", "implant dentistry", and "TMJ and myofacial paintherapy", if in fact they do perform such services. These are not "specialties", as defined in HO §4-503(c); hence advertising concerning them is outside the scope of the restriction.25

Rather, HO §§4-502(b)(1)(ii) and 4-503(a) and COMAR 10.44.06.03B(4) prohibit specific advertising reference to any of the defined specialties unless the dentist who so advertises has the appropriate credential of specialization. For example, a dentist may not advertise that he or she is an "orthodontist" without having been identified by the Board as such. Thus, the restriction here is the converse of that at issue in R.M.J.

We believe that a court would sustain this restriction. It serves the compelling State interest of assuring that those who hold themselves out to be specialists in fact are specially qualified. To be sure, a licensed dentist is, without more, authorized to practice in any of the specialized areas. See HO §4-308. Cf. HO §4-603. But the explicit holding of oneself out to be an "orthodontist", for example, draws patients precisely because of the implied claim of comparative expertise over those dentists who do not advertise that specialty. See generally Barnett v. Board of Dental Examiners, 293 Md. 361, 370-71 (1982).

The restriction in question here assures that when a dentist lays claim to being an "orthodontist", or any of the other statutorily recognized specialties, the critical term "orthodontist" will have a defined meaning, namely, a dentist who meets the certification requirements of the Board. In essence, then, the statutory and regulatory scheme in this area is little different than the long-accepted governmental function of bringing order to the marketplace and forestalling deception through the imposition of standardized definitions of critical trade terms. See, e.g., 16 C.F.R. §251.1(b) (FTC guide prescribing meaning of the word "free" in advertising).

K. Advertising by unlicensed persons

HO §§4-502(c) and 4-602(a)(1) prohibit the advertising of dental services by persons who are not licensed to practice dentistry.

These provisions merely augment the basic prohibition against the practice of dentistry by unlicensed persons. See HO §§4-301 and 4-601(a). There is no question but that HO §§4-502(c) and 4-602(a)(1) are constitutional. See Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977) ("Advertising concerning transactions that are themselves illegal obviously may be suppressed.").

L. Claims that raise "unjustified expectations"

COMAR 10.44.06.03B(3) prohibits statements that "[a]re intended or are likely to create unjustified expectations".

This provision is unconstitutional and unenforceable to the extent that it purports to ban advertising solely because of the advertiser's particular intent. If an advertisement is not deceptive or misleading, it may not be banned, regardless of the advertiser's intent.26

However, we see no constitutional defect in the provision to the extent that it bans advertisements that "are likely to create unjustified expectations", despite the imprecision of this phrasing. A patient's expectation would prove "unjustified" if there were a wide gap between the representation in the advertisement and the reality of the treatment. Under those circumstances, the advertisement would be misleading and the Board could enforce this prohibition against the advertiser. We caution, however, that the Board may not wield this provision to suppress advertising that the Board finds distasteful or overly aggressive but that does not contain a misleading representation linked to probable patient expectations.

M. Predictions

COMAR 10.44.06.03B(8) prohibits statements that "[c]ontain statistical data or other information based on past performance to predict future success".

Properly construed, this provision does not prohibit, and, indeed, may not constitutionally be enforced to prohibit, the mere presentation of past data. Rather, it must be read as prohibiting only the use of that data coupled with a claim of "future success".27

In our view, such an explicit linkage of past data to "future success" would be inherently misleading. Given the variability of dental disease, past experience would be utterly unreliable as a prediction of a comparable "success rate" in the future. Moreover, the seeming precision of statistics as a basis for prediction could well mask a host of definitional and other problems with the data. In short, we regard COMAR 10.44.06.03B(8) as constitutional and enforceable.

N. Testimonials and endorsements

COMAR 10.44.06.03B(9) prohibits advertising statements or claims that "contain a testimonial about, or endorsement of, a dentist, except that any individual may attest to the quality of a specific, identifiable dental service based on the individual's own personal knowledge or experience as a patient of the dentist who is the subject of the testimonial or endorsement".

Testimonials, we recognize, have long been a potential source of consumer deception. See, e.g., 16 C.F.R. Part 255 (FTC guides concerning use of endorsements and testimonials in advertising). However, this prohibition is constitutionally defective because it is far too overinclusive.

One can readily envision testimonials from persons other than patients that are not inherently misleading, e.g., a testimonial from a professional colleague. We think that the First Amendment requires policing of misleading testimonials on a case by case basis, not through a flat ban against all testimonials by persons other than patients. See Zauderer, 471 U.S. at 646.

Therefore, COMAR 10.44.06.03B(9) is unconstitutional and unenforceable.

O. Broadcast advertising

COMAR 10.44.06.03B(11) imposes the following restrictions on "electronic media" advertising, "including television, radio, and motion pictures":

"(a) Broadcast advertising shall be communicated to the public only over radio or television stations that are approved by the Federal Communications Commission or over cable television,
(b) Broadcast advertisements shall be pre-recorded, and approved for broadcast by the advertising dentist,
(c) A recording of the actual transmission shall be retained by the advertising dentist for a period of 3 years,
(d) Dental advertising in the broadcast media may not contain:
(i) Cartoons and animation,
(ii) Lyrics
(iii) Portrayals, dramatizations, actual demonstrations of dental skills, or methods of practicing dentistry".

The first three of these requirements do not restrict the content of broadcast advertising. Instead, they impose certain "time, place, and manner" requirements. These are constitutional. See Bates, 433 U.S. at 384. However, we believe that the last requirement, the prohibition against the use of animation, lyrics, dramatization, and actual demonstrations, is unconstitutional and unenforceable, although the issue is not entirely free from doubt.

In Bates, the Supreme Court expressly reserved decision on the applicability of commercial speech protections to broadcast advertising: "The special problems of advertising on the electronic broadcast media will warrant special consideration." 433 U.S. at 384. And none of the Supreme Court's subsequent forays into commercial advertising have resolved the issue of what special considerations, if any, apply to broadcast advertising. The absence of definitive guidance from the Supreme Court has permitted two lower courts, in passing on Iowa's lawyer advertising rules, to sustain restrictions on the content of broadcast advertising comparable to those in COMAR 10.44.06.03B(11)(d). See Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219, 1229 (S.D. Iowa 1981) ("promotional content of [electronic media advertising] is potentially deceptive or misleading, and therefore is not protected by the First Amendment"); Committee on Professional Ethics v. Humphrey, 355 N.W.2d 565, 571 (Iowa 1984), vacated and remanded for reconsideration in light of Zauderer, 472 U.S. 1004 (1985) ("It is no insult to the advertising industry, or to the electronic media, to believe that, when their efforts are combined on behalf of a lawyer, a line can and should be drawn between what informs the public and what promotes the lawyer. . . . All that is prohibited are the tools which would manipulate the viewer's mind and will.").28

In our view, however, this kind of reasoning cannot survive scrutiny under Zauderer. While that case did not involve broadcast media advertising, we see no reason why its analysis as to the use of illustrations in printed advertising ought to be any different simply because the advertising is broadcast:

"The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test." 471 U.S. at 647.

Ohio's justification for its ban on illustrations in printed advertising was very similar to the rationale of the courts that sustained Iowa's ban on dramatizations and visual displays in broadcast advertising:

"The use of illustrations in advertising by attorneys, the State suggests, creates unacceptable risks that the public will be misled, manipulated, or confused. Abuses associated with the visual content of advertising are particularly difficult to police, because the advertiser is skilled in subtle uses of illustrations to play on the emotions of his audience and convey false impressions. Because illustrations may produce their effects by operating on a subconscious level, the State argues, it will be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative. Thus, . . . the State's argument is that its purposes can only be served through a prophylactic rule". 471 U.S. at 648.

But, as discussed in Part II F 2 above, the Supreme Court rejected this argument. It is possible to distinguish "deceptive or manipulative uses of visual media in advertising" from nondeceptive ones, and the First Amendment requires that the policing be accomplished through case by case enforcement against deceptive or misleading advertisements rather than "through a blanket ban on the use of illustrations". 471 U.S. at 649. It is noteworthy that, in requiring Ohio to "polic[e] the use of illustrations in advertisements on a case-by-case basis", the Supreme Court cited with approval a case that concerned deceptive television advertising. See FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965).

Therefore, COMAR 10.44.06.03B(11)(d) is unconstitutional and unenforceable.

P. Disclosure of advertiser's identity

COMAR 10.44.06.03B(13) assures an accurate, explicit disclosure of who exactly will perform an advertised service. It prohibits advertisements that "[f]ail to include the name and address of the dentist rendering the service".

This provision is a form of required disclosure "reasonably related to the State's interest in preventing deception of consumers". Zauderer, 471 U.S. at 651. See Part II F 3 above. For this reason, it is constitutional, but, as with other forms of required disclosure, it must be administered reasonably, so as to avoid "chilling" protected speech.29

Q. Deceptive types of fee advertising

COMAR 10.44.06.04 identifies two types of fee advertising that "shall be considered deceptive or misleading":

"if the dentist:
A. Renders the service at more than the fees advertised; [or]
B. Fails to offer the service at the fee advertised for a reasonable period of time following the advertisement unless a specific time limit is included in the original advertisement."

Such advertising would be inherently deceptive or misleading. See generally 16 C.F.R. Part 233 (FTC guides against deceptive pricing). Therefore, the regulation prohibiting it is constitutional and enforceable.

R. Assignment of responsibility for advertising

COMAR 10.44.06.05 provides as follows:

"A dentist shall be responsible for an advertisement of service regardless of whether the advertising has been generated by him personally, by his employees, or by a proprietorship, partnership, corporation, union, public school clinic, state institution, or eleemosynary institution which uses his services."

This provision does not itself prohibit any form of advertising, and we see no constitutional defect in it.

IV
Conclusion

In summary, it is our opinion that certain provisions of the statute and regulation restricting advertising by licensed dentists are constitutional and, therefore, may be enforced by the Board of Dental Examiners. Other provisions are unconstitutional and unenforceable.

1. The following provisions are constitutional:

Guarantees—
HO §4-502(a)(1)
COMAR 10.44.06.03B(10)

Superiority claims—
HO §4-502(a)(3)
COMAR 10.44.06.03B(5)

Deception—
HO §4-502(a)(4)
COMAR 10.44.06.03A
COMAR 10.44.06.03B(1)
COMAR 10.44.06.03B(2)
COMAR 10.44.06.03B(7)

Specialty designations—
HO §4-502(b)(1)(ii)
HO §4-503(a)
COMAR 10.44.06.03B(4)

Advertising by unlicensed persons—
HO §4-502(c)
HO §4-602(a)(1)

Claims "likely to" raise "unjustified expectations"—
COMAR 10.44.06.03(3)

Predictions—
COMAR 10.44.06.03B(8)

Procedural requirements for broadcast advertising—
COMAR 10.44.06.03B(11)(a), (b), and (c)

Disclosure of advertiser's identity—
COMAR 10.44.06.03B(13)

Deceptive types of fee advertising—
COMAR 10.44.06.04

Assignment of responsibility for advertising—
COMAR 10.44.06.05

2. The following provisions are unconstitutional:30

Representations of "painless[ness]"—
HO §4-502(a)(2)

Use of particular drugs or methods—
HO §4-502(a)(5)

Display of dental appliances—
HO §4-502(a)(6)

Advertising of non-routine services—
HO §4-502(a)(7)
COMAR 10.44.06.03B(6)
COMAR 10.44.06.03B(12)

Titles on signs—
HO §4-502(b)(1)(i)

Testimonials and endorsements—
COMAR 10.44.06.03B(9)

Content of broadcast advertising—
COMAR 10.44.06.03B(11)(d)

Stephen H. Sachs, Attorney General

Jack Schwartz, Deputy Counsel
Opinions and Advice

Avery Aisenstark
Chief Counsel
Opinions and Advice

1 The constitutionality of HO §4-314(a)(8), which subjects to discipline a dentist who "[u]ses another person as an in-person solicitor of business", is also highly questionable. See note 7 below.

2 HO §4-503(b) directs the Board to determine, upon request, "whether the licensee qualifies for Board identification as a specialist". HO §4-503(c) lists eight branches of dentistry as "specialties", endodontics, oral pathology, oral surgery, orthodontics, pedodontics, periodontics, prosthodontics, and public health, and authorizes the Board to approve "any other field of specialized dental practice".

The Board's regulation recognizes these same eight specialities. COMAR 10.44.14.03. It also specifies the qualifications "for identification as specialist by the Board". COMAR 10.44.14.04. See Part III J below.

3 The exception "provided in this section" permits "a holder of a dental degree who does not directly or indirectly practice or attempt to practice dentistry in this State to use the degree or an abbreviation for the degree in connection with the name of the holder." HO §4-602(b).

4 For example, former Article 32, §12(a) completely prohibited advertising by dentists. See generally 62 Opinions of the Attorney General at 263-70.

5 Before Virginia Pharmacy, it had been supposed that commercial speech was outside the protection of the First Amendment. See Valentine v. Chrestensen, 316 U.S. 52 (1942).

6 In Virginia Pharmacy, the Supreme Court had expressly left open the possibility that the advertising of professional services might be on a different constitutional footing than the advertising of standardized products. See Virginia Pharmacy, 425 U.S. at 773 n. 25. Bates settled the matter by holding that commercial speech about professional services was likewise entitled to First Amendment protection.

7 Ohralik held that a state "constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent", namely, "those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of 'vexatious conduct.'" 436 U.S. at 449, 462. But there is no indication in Ohralik that a state may prohibit all forms of in-person solicitation for example, the employment of someone to distribute handbills to passers-by or the employment of telephone solicitors. Thus, the constitutionality of HO §4-314(a)(8), which subjects to discipline a dentist who "[u]ses another person as an in-person solicitor of business", is highly questionable; the Board should exercise caution in enforcing this provision.

8 The Supreme Court also reiterated the recognition in Central Hudson that even nondeceptive commercial speech may be regulated under some circumstances:

"Even when a communication is not misleading, the State retain some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to interests served. . . . Restrictions must be narrowly drawn, and the State lawfully may regulate only to the extent regulation furthers the State's substantial interest. Thus, in Bates, the Court found that the potentially adverse effect of advertising on professionalism and the quality of legal services was not sufficiently related to a substantial state interest to justify so great an interference with speech." 455 U.S. at 203-04.

9 In ordinary First Amendment jurisprudence, "[a] law is void on its face if it 'does not aim specifically at evils within the allowable area of [governmental] control, but . . . sweeps within its ambit other activities that constitute an exercise' of protected expressive or associational rights." Tribe, American Constitutional Law §12-24, at 710 (1978) (quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)). Such a law is overbroad, and it is subject to challenge because its very existence may chill constitutionally protected expression. However, in Bates, the Supreme Court held that the overbreadth doctrine does not apply to "professional advertising, a context where it is not necessary to further its intended objective". 433 U.S. at 381. See also Central Hudson, 447 U.S. at 565 n. 8. Nonetheless, sound policy suggests that the Board delete from its regulation provisions that are unconstitutionally overbroad and hence unenforceable as written.

10 The predecessor provision prohibited "advertising to guarantee any dental service". Former Article 32, §11(k)(1).

11 Former Article 32, §11(k)(1) prohibited "advertising . . . to perform any dental operation painlessly".

12 The 1977 Opinion took the statutory phrase "dental operation" to mean dental surgery. The Revisor of Statutes obviously understood the term to refer to dental procedures generally, not just dental surgery.

13 Similarly, we regard other similarly broad claims, i.e., assertions about "painlessness" not linked to specific procedures, to be inherently misleading, given the wide range of procedures that inevitably necessitate some pain.

14 Former Article 32, §11(k)(2) prohibited "advertising professional superiority or the performance of professional services in a superior manner".

15 If the prohibition against "impl[ying] superior service" in COMAR 10.44.06.03B(5) were read to forbid such factual statements, it would be unconstitutional and unenforceable.

16 Former Article 32, §11(k)(3) prohibited "advertising to use any anesthetic, drug, formulae, material, medicine, method or system".

17 Former Article 32, §11(k)(3) prohibited "advertising by public exhibit at residence of practice any appliances used in restorative dentistry".

18 "The Commission [to Revise the Annotated Code] believes that the constitutionality of this provision is doubtful. However, the reported judicial decisions on price advertising address only 'routine' services, and, consequently, the commission is unable to say with certainty that a ban on advertising price of 'non-routine' services is unconstitutional." Revisor's Note to HO §4-502.

19 Because price advertising of nonroutine services is now prohibited by statute and regulation, the affirmative disclosure requirement of COMAR 10.44.06.03B(6)(b) explicitly applies only to fee advertising "for routine dental services". Should the Board wish to extend this disclosure requirement to all fee advertising, the regulation will need to be revised.

20 Former Article 32, §16 contained the same forbidden and permitted designations as HO §4-502(b)(1)(i) and (2).

21 Under HO §4-302(d), "[t]o qualify for a license to practice dentistry, the applicant shall hold a degree of Doctor of Dental Surgery, Doctor of Dental Medicine, or the equivalent".

22 See note 2 above.

23 The predecessor statute, former Article 32, §16, permitted certain limited displays of only those speciality designations approved by the American Dental Association.

24 It is not clear how specialty recognition by the ADA's Council on Dental Education correlates with specialty identification by the Board under COMAR 10.44.14. A serious constitutional problem would arise if COMAR 10.44.06.03B(4) were enforced inconsistently with the specialty identification procedure in COMAR 10.44.14. That is, a dentist who has been identified as a specialist by the Board may not be prohibited from advertising that fact simply because he or she might not have been recognized by the Council on Dental Education.

25 This reading is consistent with that of the predecessor statute in Barnett v. Board of Dental Examiners, 293 Md. 361 (1982). In that case, a dentist was charged with deceptive or misleading advertising for using a term ("polydontics") concerning his practice that, in the context of the particular ads, a lay person would take to mean "a dental specialty . . . [in which the dentist] possessed some special expertise not held by most general practitioners". 293 Md. at 370-71. The Court of Appeals explicitly noted that the Board was not seeking to ban all advertisements containing the word "polydontics", as, presumably, the Board would have sought had it construed the statutory restriction on the use of specialty designations to flatly prohibit the use of references to specialized services other than the specific "specialties" already approved.

Although the language of the statute and regulation doubtlessly permits a more sweeping reading than our narrow construction, we would have grave doubt about the constitutionality of the restriction if it were read as an absolute prohibition against the mention of any form of dental practice other than those defined in HO §4-503(c)(1). Cf. R.M.J., 455 U.S. at 205 (lawyer may not be prohibited from advertising areas of practice that deviated from state-prescribed list, if the advertising is not misleading). It is a fundamental principle of statutory construction that statutes be construed to avoid constitutional problems whenever "reasonably possible". In re James D., 295 Md. 314, 327 (1983).

26 Conversely, innocent intent is no defense if an advertisement is deceptive or misleading. See, e.g., Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d Cir. 1976).

27 On the need to construe provisions to avoid constitutional problems, see the second paragraph of note 25 above.

28 But see Baker v. Registered Dentists of Okla., 543 F. Supp. 1177, 1181 (W.D. Okla. 1982) (flat ban on radio and television advertising by dentists unconstitutional).

29 For example, a requirement that a dental clinic's ad set forth the name of each and every dentist practicing in the clinic might be unduly burdensome.

30 The constitutionality of HO §4-314(a)(8), which subjects to discipline a dentist who "[u]ses another person as an in-person solicitor of business", is also highly questionable. See note 7 above.

Editor's Note: Since the issuance of this opinion, the General Assembly has substantially revised HO §4-502, to correct the various constitutional defects in the former law. See Chapter 744, Laws of Maryland 1986. In light of additional information from the Board of Dental Examiners about the risk of public confusion, we advised the Board in a follow-up letter that a statutory prohibition against the use of the term "dental surgeon" on signs "might well be sustained against constitutional challenge." Letter from Attorney General Sachs and Assistant Attorney General Jack Schwartz to Dr. D. M. Sullivan (February 10, 1986). Accordingly, the General Assembly retained that prohibition in HO §4-502(b)(1)(i).

The question of broadcast advertising, discussed in Part III O, remains unsettled. The Humphrey decision of the Iowa Supreme Court was reaffirmed after remand, and the Supreme Court dismissed an appeal "for want of a substantial federal question." Committee on Professional Ethics v. Humphrey, 377 N. W. 2d 643 (1985), appeal dismissed, 106 S.Ct. 1626 (1986).