Opinion
Civil Action No: 01-2608, Section: "R" (2)
February 22, 2002
ORDER AND REASONS
Before the Court are defendants' motion for summary judgment and plaintiff's motion to strike defendants' statement of material fact. For the reasons stated below the motion for summary judgment is granted and the motion to strike is denied.
I. Background
The plaintiff is a licensed dentist who practices in Louisiana. He is a member of the Academy of General Dentistry ("AGD") and has attained a Mastership ("M.A.G.D.") from the organization. The AGD is a nonprofit international organization dedicated to the continuing dental education of its members. It also provides the public with information to help consumers make informed choices about dental care and treatment. To become a member of the AGD, a dentist must complete 75 hours of continuing dental education courses every three years. The AGD gives out two awards, a Fellowship ("F.A.G.D.") and a Mastership. To earn a F.A.G.D., a dentist must be an AGD member for five continuous years, earn a minimum of 500 approved continuing dental education credits, and pass a comprehensive 400-question examination. To earn a M.A.G.D., a member must attain F.A.G.D. status, plus an additional 600 approved continuing education credits, of which 400 hours are hands-on courses. The disciplines included in the AGD's course of study include periodontics, orthodontics, and implants.
Dr. Simm includes his membership in the AGD and his Mastership status in the information provided in his advertisements in the yellow pages, on his business cards, and on his letterhead. His name appears on all three materials in the following manner: Adrian Michael Simm, DDS, M.A.G.D. See Pl.'s Cmplt., Ex. A. Further, Dr. Simm advertises that he is a general dentist and that he performs implant dental services. Dr. Simm's advertisements and letterhead contain the words "General and Implant Dentistry," with all of the words in the same size and style of font.
On June 29, 2001, Dr. Simm received a letter from the Louisiana State Board of Dentistry, informing him that he violated Rule 301(H)(3) of the Louisiana Administrative Code by failing to make "General Dentistry" a different size than the other areas of practice listed on his letterhead and that he violated Rule 301(K) of the Code by including the appendage "M.A.G.D." next to his name on his letterhead. Rule 301(H), entitled "Disclosure of Area of Practice," provides:
3. Anyone not qualified for the specialties listed in Subsection C must disclose "General Dentistry" or "Family Dentistry" in print larger and/or bolder and noticeably more prominent than any area of practice or service advertised. LA. ADMIN. CODE tit. 46, pt. XXXIII, § 301(H)(3) (2000).
Subsection C of Rule 301 provides:
Approved Specialties — The board has reviewed and approved the "Standards for Advanced Specialty Education Programs" set forth by the Commission on Dental Accreditation of the American Dental Association and approves only the following specialties: 1. dental public health; 2. endodontics; 3. oral and maxillofacial surgery; 4. oral pathology; 5. orthodontics and dentofacial orthopedics; 6. pediatric dentistry; 7. periodontics; 8. prosthodontics. LA. ADMIN. CODE tit. 46, pt. XXXIII, § 301(C) (2000).
Rule 301(K) deals with appendages and provides:
Appendages. In addition to those appendages required by law pertaining to one's business entity such as a professional dental corporation (P.C.) or dental limited liability company (L.L.C.), dentists may only use those abbreviations or appendages as specified under R.S. 37:771 or other degrees earned from accredited colleges or universities after their names. Fellowships, awards, membership in academies, or non-degreed boards may be spelled out in their entirety under one's name, but not appended to the name so as to avoid confusion to the consumer. LA. ADMIN. CODE tit. 46, pt. XXXIII, § 301(K) (2000).
The following was added to Section 301(K) by a comprehensive rule revision in November 2001:
However, fellowships, awards, memberships in academies and non-degreed boards may be appended to names in newsletters which are not intended for publication or dissemination to the public but which remain peculiar to dentists or dental hygienists. An example is the "Pelican Pouch" which is a newsletter which goes out to members of the Academy of General Dentistry. It is permissible for persons to append "F.A.G.D." after their names in newsletters such as this. 27:11 La.Reg. 1890 (2001).
The Board offered to settle the matter if Dr. Simm would pay a fine and sign a consent decree in which he would agree to waive any judicial review of the Board's charges and all claims or causes of action against the Board and/or its members arising from the investigation or prosecution of this matter. On August 24, 2001, plaintiff filed a complaint and a motion to enjoin the Board from enforcing Rules 301(H) (3) and 301(K) of the Administrative Code until the Court's determination regarding the constitutionality of the Rules. Plaintiff alleges that these Rules violate his First Amendment rights, as made applicable to the states by the Fourteenth Amendment, and his rights under the Constitution of the State of Louisiana, Art. I, Section 7. On January 16, 2002, the Court denied plaintiff's motion for a preliminary injunction. Defendants move for summary judgment on the same grounds articulated in their opposition to plaintiff's motion for a preliminary injunction, plaintiff moves to strike defendants' statement of material facts for not complying with the provisions of Local Rule 56.1 by failing to provide "material facts" in their separate statement, and plaintiff opposes summary judgment. See Local Rule 56.1 ("Every motion for summary judgment shall be accompanied by a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried."). Since plaintiff's arguments in the motion to strike are duplicative of the arguments in plaintiff's memorandum in opposition to summary judgment, the Court will consider those arguments only once as part of plaintiff's opposition to summary judgment.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. The First Amendment and Commercial Speech
Professional advertising by a dentist of his area of practice and his credentials is commercial speech protected by the First Amendment. See Ibanez v. Florida Dep't. of Business and Professional Regulation, Board of Accountancy, 512 U.S. 136, 142, 114 S.Ct. 2084, 2088 (1994) (attorney's reference to her credentials as CPA and CFP is commercial speech); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 (1977) (advertising by lawyers is a form of commercial speech entitled to protection by the First Amendment). "`Commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,' and is subject to `modes of regulation that might be impermissible in the realm of noncommercial expression.'" Board of Trustees of State Univ. of N Y v. Fox, 492 U.S. 469, 477, 109 S.Ct. 3028, 3033 (1989) ( quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918 (1978)). The government may freely regulate commercial speech when it concerns unlawful activity or is misleading. Florida Bar v. Went For It, Inc., 515 U.S. 618, 624-25, 115 S.Ct. 2371, 2376 (1995) ( citing Central Hudson Gas Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 563-64, 100 S.Ct. 2343, 2350 (1980)). In Central Hudson Gas Electric Corporation v. Public Service Commission of N.Y., the Supreme Court stated the test for regulating commercial speech that is not misleading or unlawful. The Court held that commercial speech that is neither unlawful nor misleading may be regulated if the government can show that: (1) it has a substantial interest in support of its regulation; (2) the restriction on commercial speech directly and materially advances that interest; and (3) the regulation is narrowly drawn. 447 U.S. at 564-65, 100 S.Ct. at 2350-51; see also Edenfeld v. Fane, 507 U.S. 761, 767, 113 S.Ct. 1792, 1798 (1993) (regulation must advance substantial state interest in a "direct and material way" and be in "reasonable proportion to the interests served"); In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937 (1982) (State can regulate commercial speech if it shows that it has "a substantial interest" and that the interference with speech is "in proportion to the interest served"); see also Bailey v. Morales, 190 F.3d 320, 323 (5th Cir. 1999); MD II Entertainment, Inc. v. City of Dallas, 28 F.3d 492, 496 (5th Cir. 1994). "The party seeking to uphold a restriction on commercial speech carries the burden of justifying it." Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, n. 20, 103 S.Ct. 2875, 2883, n. 20 (1983).
Defendants contend that the use of "M.A.G.D." is inherently misleading, and therefore the Court can rule that Rule 301(K) is constitutionally sound without having to subject the statute to the Central Hudson analysis. See Def.'s Summ. J. Mot. at 7-8. In In re R.M.J., the Supreme Court stated that inherently misleading advertising may be banned, but if the advertising is only potentially misleading the State may not prohibit it if the information can be presented in a nondeceptive way:
[W]hen the particular content or method of advertising suggests that it is inherently misleading or when experience had 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 . . . if the information may be presented in a way that is not deceptive. 455 U.S. at 203, 102 S.Ct. at 937.
Commercial speech is "inherently" misleading when it is likely to deceive and when it is "devoid of intrinsic meaning." Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Commission, 24 F.3d 754, 756 (5th Cir. 1994) ( citing Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 112, 110 S.Ct. 2281, 2293 (1990) (Marshall, J. and Brennan, J., concurring)). In Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 110 S.Ct. 2281, the Supreme Court recognized that speech is "actually" misleading when there is evidence of deception. See 496 U.S. at 106, 110 S.Ct. at 2290.
Defendants argue that "M.A.G.D." is inherently misleading because it is "devoid of any meaning to the public." See Def.'s Summ. J. Mot. at 8. The Court disagrees. The "M.A.G.D." designation is uninformative but not necessarily misleading. Here, although the appendage "M.A.G.D." may not be recognizable by consumers, defendants cite no evidence of a history of deception through the use of "M.A.G.D." or similar academic appendages. Compare Friedman v. Rogers, 440 U.S. 1, 12-13, 99 S. Ct. 887, 895-96 (1979) (use of trade name in advertisement inherently misleading because ill-defined association of trade name with price and nature of service, especially in light of considerable history in Texas of deception and abuse of consumers through use of trade names), with R.M.J., 455 U.S. at 205-06, 102 S.Ct. at 939 (uninformative fact in lawyer's advertisement not inherently misleading; nothing in record to indicate that information misleading). Additionally, this case is distinguishable from Joe Conte Toyota, in which the term "invoice" in a car advertisement was found to be inherently misleading. In Joe Conte Toyota, the Fifth Circuit found that the term "invoice" was inherently misleading because it conveyed no useful information and because it did not mean what it appeared to mean in the context of the advertisement. See 24 F.3d at 757. The automobile dealers in Joe Conte Toyota used the term "invoice" in various places in their advertisements in an apparent attempt to confuse consumers about the actual price of the cars advertised. Id. "M.A.G.D." as it appears in plaintiff's letterhead is located next to "DDS," a recognizable mark of academic achievement. "M.A.G.D." also represents a type of professional educational accomplishment — the completion of a substantial number of hours of continuing education classes. The term as used does not depart from the common understanding of a known term like the deceptive use of "invoice" in Joe Conte Toyota. Defendants' summary judgment evidence does not convince the Court otherwise. Accordingly, the Court finds that "M.A.G.D." is not "inherently" misleading.
The Court finds, however, that Dr. Simm's advertisements are potentially misleading. "Facts as well as opinions can be misleading when they are presented without adequate information." Peel, 496 U.S. at 115, 110 S.Ct. at 2295 (Marshall, J. and Brennan, J. concurring). Consumers may be unfamiliar with the "M.A.G.D." designation and could be mislead about the type of credential it is. In Peel, a majority of the Court recognized that an attorney's use of the designation "Certified Civil Trial Specialist by the National Board of Trial Advocacy" in his letterhead, although truthful, might not be fully understood by some readers and could be potentially misleading. See 496 U.S. at 106, 110 S.Ct. at 2291. Similarly, in R.M.J., the Court held that an attorney's advertisement that he was "Admitted to Practice Before THE UNITED STATES SUPREME COURT" was a "relatively uninformative fact . . . [that] could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court." 455 U.S. at 205, 102 S.Ct. at 938. The "M.A.G.D." designation is potentially misleading for similar reasons. Defendants submit a telephone survey from randomly selected phone numbers in Orleans Parish and Jefferson Parish directed by Dr. Ed Renwick, a Ph.D. in political science and an associate professor of political science at Loyola University in Louisiana. Dr. Renwick has thirty years of experience conducting polls and public opinion surveys. See Def.'s Summ. J. Mot., Ex. A, Renwick Affidavit at ¶¶ 1-2. The survey provides evidence that advertisements that violate Rule 301(K) are at least potentially misleading as to a dentist's academic achievements and specialization. See Def.'s Summ. J. Mot. Ex. B, Survey at 4, 7-8. Further, defendants submit consumer surveys directed by Dr. Renwick which provide sufficient evidence that advertisements that violate Rule 301(H) (3) are at least potentially misleading as to whether a general dentist is a specialist. See Def.'s Opp. to Prelim. Inj., Ex. F, G, H, and I. The plaintiff even testified that the assumptions consumers may draw from advertisements that violate Rules 301(H)(3) and 301(K) can oftentimes be incorrect. See Def.'s Ex. E, Simm Deposition at 49-51, 25, 68, 96.
When asked what "M.A.G.D. meant, 87% of respondents to the telephone survey did not know what it meant, 2% of respondents felt it meant nothing, and another 2% felt that it meant nothing to them. See Def.'s Summ. J. Mot. Ex. B, Survey at 4. When asked "If a dentist, in addition to having DDS, has the following initials after his name in written communications with the public, would you think the dentist was a general dentist, some kind of specialist, or one having an advanced academic degree," 21% of respondents believed that having "M.A.G.D." after DDS meant that the dentist was a specialist and 30% believed it meant the dentist had an advanced degree. See id. at 7-8.
For example, a yellow pages ad with "Family Dentistry" in larger print than the specialty services listed was understood by 81% of respondents in Metairie, 66% of respondents in Lafayette, and 70% of respondents in Shreveport to be an advertisement for a general dentist. On the other hand, when respondents were shown an advertisement with "Dentures" in larger print than "General Dentist," an average of 49.7% of those polled in the three cities believed that the dentist was a specialist.
The Court rejects plaintiff's contention that the surveys are irrelevant and inadmissible. See Pl.'s Reply at 13-15. The Fifth Circuit has stated that surveys may be relevant to show the state of mind of the survey participants.
Surveys and customer questionnaires are admissible, if they are pertinent to the inquiry, upon a showing that the poll is reliable and was compiled in accordance with accepted survey methods. A survey may be of value if the document can demonstrate the participants' then-existing state of mind. C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1054 (5th Cir. 1981) (internal citations omitted).
The May court also indicated that technical inadequacies in a survey, such as the format of the question or the manner in which the survey was taken, do not affect admissibility, but rather, bear on the weight of the survey evidence. See id. at 1055 n. 10 ( citing Randy's Studebaker Sales, Inc. v. Nissan Motor Corp., 533 F.2d 510, 521 (10th Cir. 1976); Holiday Inns, Inc. v. Holiday Out In America, 481 F.2d 445, 447 (5th Cir. 1973)); Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 797 (5th Cir. 1983) (survey entitled little evidentiary weight because of methodological defects); see also Schering Corporation v. Pfizer, Inc., 189 F.3d 218, 225-27 (9th Cir. 1999) (recognizing lack of clarity in law as to whether methodological errors in survey affect admissibility or weight of survey evidence); E. J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir. 1992) ("Technical unreliability goes to the weight accorded a survey, not its admissibility."). The Court finds that the surveys are relevant because they tend to show the states of mind of individuals who are confronted with the types of advertising techniques that Rules 301(H)(3) and 301(K) proscribe and the potential for consumers to be mislead by those techniques. See Schering, 189 F.3d at 225 (noting general trend towards admission of survey evidence; surveys routinely admitted in trademark and false advertising cases to show actual confusion by consumers which relates to the associations the public draws).
Furthermore, plaintiff's arguments regarding the technical faults of the surveys, which he supports through his expert, Dr. Stokes, a statistical science professor at Southern Methodist University, do not show that the surveys are so unreliable as to be inadmissible. See Pl.'s Op. to Summ. J. at 14-15. Rather, the attacks on Dr. Renwick's surveys do nothing more than call into question the weight that should be afforded the survey evidence. There is no question that Dr. Renwick is qualified to perform the surveys; he has a Ph.D. in political science and thirty years' experience in polling and public opinion surveys. Regarding the telephone survey, Dr. Renwick obtained a random digit dialing sample of telephone exchanges in Orleans and Jefferson Parishes from a Connecticut survey sampling company and engaged an independent company in the business of conducting surveys of this type to perform the questioning. See Def.'s Summ. J. Mot., Ex. B, Renwick Affidavit at ¶¶ 5, 8. The questioners were not told that the survey was related to this litigation or for whom the survey was conducted. See id. The survey received 501 responses, a sufficient sample size for a study of this type, and the survey had a margin of error of plus or minus four to five percent. See id. at ¶ 6. Although plaintiff criticizes the response rate of the survey (seventeen percent), this is not a technical failure in the surveying methodology but, as the authority cited by plaintiff's expert points out, this renders the survey results less reliable than the results of a survey with a higher response rate. See Pl.'s Reply, Stokes Affidavit at ¶ 9. Further, Dr. Stokes' criticism of the method used to select respondents is unconvincing; there is no evidence to suggest that unmarried women are overrepresented in the sample, nor that such a result would somehow affect the results of the survey. See id. at ¶ 10. In fact, it appears that the selection guideline cited by Dr. Stokes was used to ensure that the surveys represented an equal number of men and women. Additionally, the Supreme Court determined that surveys from one geographic location can be used to justify government speech restrictions in an altogether different location. See Florida Bar, 515 U.S. at 628, 115 S.Ct. at 2378 ("we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information . . . we have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether. . ."). Finally, Dr. Stokes' caviling with the language used in the telephone survey does not convince the Court that the survey is inadmissible. See id. at ¶¶ 12-13.
The mall intercept surveys Dr. Renwick conducted to determine the impact of Rule 301(H)(3) also withstand plaintiff's attacks. An independent company in the business of conducting surveys performed the surveys under the direction of Dr. Renwick. The surveys were performed before this litigation began, and 604 individuals responded in three Louisiana malls. See Def.'s Summ. J. Mot. Ex. A, Supplemental Affidavit at ¶¶ 3, 8, 12, 14. Dr. Renwick does not contend that the mall intercept surveys are random probability studies, and therefore, he did not generalize the results in order to make conclusions about the broader public. See id. at ¶ 5. Although Dr. Renwick does refer to "the public" when describing the responses of those surveyed, it is clear to the Court that in the context of the affidavit the statement reflects a summary of the overall states of mind of those surveyed, not a generalization about the greater public. See id. at ¶ 13. Further, the Supreme Court has upheld the Government's use of this type of anecdotal evidence to justify speech restrictions. See Florida Bar, 515 U.S. at 628, 115 S. Ct. at 2378 ("we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information . . . we have permitted litigants to justify speech restrictions by reference to studies and anecdotes . . . or based solely on `simple common sense'. . ."). Moreover, Dr. Stokes quibbles over the language used in the mall intercept surveys but does not present convincing arguments that Dr. Renwick's terminology presents serious methodological problems. See Pl.'s Reply, Stokes Affidavit at ¶¶ 6, 7. Therefore, the Court finds that Dr. Renwick's surveys are admissible. Accordingly, the Court will analyze the advertisements under Central Hudson.
Under the Cental Hudson test, the court must "identify with care the interests the State itself asserts," and the court may not "supplant the precise interests put forward by the State with other suppositions." Edenfeld, 507 U.S. at 768, 113 S.Ct. at 1798. The interest defendants assert to justify the regulations is the need to protect the public from being misled or confused about a dentist's qualifications. See Def.'s Summ. J. Mot. at 2. Specifically, Rule 301(K) states:
Fellowships, awards, membership in academies, or non-degreed boards may be spelled out in their entirety under one's name, but not appended to the name so as to avoid confusion to the consumer. LA. ADMIN. CODE tit. 46, pt. XXXIII, § 301(K) (2000) (emphasis added).
Defendants also posit that the requirement under Rule 301(H)(3) that a general dentist include "General Dentistry" or "Family Dentistry" in noticeably more prominent typeface in his or her materials for publication serves to inform the public that the dentist is not a specialist. See Def.'s Ex. D, Affidavit of Dr. H.O. Blackwood at ¶ 5. The Court finds that defendants have advanced a substantial state interest in support of the challenged regulation — preventing public confusion or deception about dentists' qualifications. See Edenfeld, 507 U.S. at 769, 113 S.Ct. at 769 (state's interest in ensuring accuracy of commercial information in marketplace is substantial) (citing cases).
Further, Rules 301(H)(3) and 301(K) directly and materially advance the State's interest and are narrowly drawn to accomplish their purposes. They address potentially misleading aspects of Dr. Simm's letterhead by mandating style and disclosure requirements. The style provision of Rule 301(H)(3) and the disclosure requirement of Rule 301(K) regulate purely "factual and uncontroversial information" about the terms of the service available and the achievements of the service provider. See Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 651 105 S.Ct. 2265, 2282-83 (1985) (state requirement that attorney disclose fee and litigation cost information not violate attorney's First Amendment rights). As applied to Dr. Simm, Rule 301(H) (3) mandates that he make it clear that he is a general dentist without prohibiting him from listing that he provides implant services. Rule 301(K), which is more of a disclosure rule, prohibits him from placing "M.A.G.D." next to the "DDS" appended to his name, and it requires that he fully disclose the terms that comprise his M.A.G.D. award.
Plaintiff argues that defendants cannot satisfy the Central Hudson test because defendant's summary judgment evidence does not sufficiently demonstrate any actual harm under Ibanez. Although the Court in Ibanez emphasized that it would not allow the "rote invocation of the words "potentially misleading' to supplant the Board's burden to `demonstrate that the harms it recites are real. . . ." the defendant in Ibanez presented no evidence of "any harm that is potentially real, not purely hypothetical. . . ." 512 U.S. at 146, 114 S.Ct. at 2090. In fact, the Ibanez court did not foreclose the use of appropriate disclosure requirements to "check against deception or confusion."
We express no opinion whether, in other situations or on a different record, the Board's insistence on a disclaimer might serve as an appropriately tailored check against deception or confusion, rather than one imposing unduly burdensome disclosure requirements [t]hat offend the First Amendment. Id.
Here, defendants provided the Court with evidence of more than "purely hypothetical harm." Id. Their survey evidence demonstrated the existence of the potential harm that the Rules in issue are designed to prevent. Furthermore, the disclosure requirement of Rule 301(K) does not implicate the concerns mentioned by the Supreme Court in Ibanez about "unduly burdensome disclosure requirements." 512 U.S. at 146-47, 114 S.Ct. at 2090-91. Unlike Ibanez, the required disclosure would not foreclose Dr. Simm from publishing the designation on a business card or letterhead, or in a yellow pages listing. It merely requires Dr. Simm to spell out M.A.G.D.
The only circuit court decision on advertising by dentists, Parker v. Commonwealth of Kentucky, Board of Dentistry, 818 F.2d 504 (6th Cir. 1987), involved a statute that completely banned general dental practitioners from holding themselves out to the public as specialists or as being "especially qualified" in any particular branch of dentistry. 818 F.2d at 506. The court assumed that the plaintiff's advertisement, which listed his orthodonture services, could be potentially misleading, but nevertheless it concluded that the State's outright ban on the use of specific, non-deceptive terms violated the First Amendment. See id. 510-11. Notably, the Sixth Circuit recognized that the State could protect the public by requiring more disclosure:
We in no way imply that a state does not have a substantial interest in enabling the public to distinguish between general practitioners and specialists or in ensuring the professional conduct of dentists. Such interests in this context, however, can be furthered by requiring more disclosure. . . . Id.
Rule 301(H)(3) does not ban Dr. Simm from listing his services, but rather, it mandates that he make it clear to the public that he is not a specialist by requiring the typeface of the terms "General Dentist" or "Family Dentistry" to be noticeably more prominent than the areas of practice or service that he lists in his advertisements. See LA. ADMIN. CODE tit. 46, pt. XXXIII, § 301(H)(3) (2000). Furthermore, the rules do not prohibit Dr. Simm from advertising his credentials from the AGD. He is merely prohibited from attaching the letters "M.A.G.D." to his name. He is permitted to advertise his credentials, so long as he spells out the abbreviation and places it under his name. See LA. ADMIN. CODE tit. 46, pt. XXXIII, § 301(K) (2000). The regulations in this case are more appropriately categorized as disclosure provisions, and not bans on constitutional commercial speech. In Zauderer, the Supreme Court stated that there are "material differences between disclosure requirements and outright prohibitions on speech." 471 U.S. at 650, 105 S.Ct. at 2281. Although in some instances the "compulsion to speak may be as violative of the First Amendment as prohibitions on speech," the Court found that a statute that required an attorney to "include in his advertising purely factual and uncontroversial information about the terms under which his services will be available" did not constitute unconstitutional compulsion by the State. Id. at 650-51, 105 S.Ct. 2281-82. In summarizing the commercial speech decisions up to that point, the Zauderer court noted that "because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, `warning[s] or disclaimer[s] might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception." Id. (citing cases). Ultimately, the Court held that "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.
Therefore, because there is no genuine issue of material fact as to the constitutionality of Rules 301(H)(3) and 301(K), the Court dismisses plaintiff's First Amendment claim.
C. State Constitutional Claim
Plaintiff makes no showing in support of his claim under the Louisiana Constitution, and he presents no argument that the state constitution gives him any broader speech rights than the federal constitution. Therefore, the Court finds that plaintiff fails to show a genuine issue of material fact on his state claim.
III. Conclusion
For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment dismissing all of plaintiff's claims. The Court denies plaintiff's motion to strike for the reasons set forth in this opinion.