Opinion
Civil Action No: 01-2608 Section: "R" (2)
January 16, 2002
ORDER AND REASONS
Before the Court is plaintiff's motion for a preliminary injunction. For the reasons stated below, the motion 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(11)(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 his name on his letterhead. Rule 301(11), 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(11)(3) and 301(K) of the Administrative Code. 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.
II. Discussion
A. Legal Standard
A preliminary injunction is an extraordinary remedy that should not be granted unless the movant demonstrates by a clear showing: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm if the injunction is not granted; and (4) that the injunction will not undermine the public interest. Valley v. Rapides Parish School Board, 118 F.3d 1047, 1051 (5th Cir. 1997); see also Ingebretsen v. Jackson Public School District, 88 F.3d 274, 278 (5th Cir. 1996); Holland America Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)
B. Likelihood of Success on the Merits
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 Opp. Mem. at 15-16. 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, 496 U.S. at 112, 110 S.Ct. at 1697 (Marshall, J. and Brennan, J., concurring)). In Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 110 S.Ct. 2281 (1990), 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 1694.
Defendants argue that "M.A.G.D." is inherently misleading because it has "little if any meaning to consumers." See Def.'s Opp. Mem. at 15. The Court disagrees and finds that 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. 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. 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. Further, defendants submit consumer surveys directed by Dr. Ed 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 Ex. F, G, H, and I. The Court rejects plaintiff's contention that the surveys lack reliability and are "meaningless." ( See Pl.'s Reply at 9-10). 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 . . . or based solely on `simple common sense . . .'"). Accordingly, the Court will analyze the advertisements under Central Hudson.
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.
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 Opp. Mem. at 14, 16. Specifically, defendants contend that the use of an appendage such as "M.A.G.D." is potentially misleading, if not inherently misleading, because it gives the consumer the impression that a dentist such as Dr. Simm has achieved an additional academic degree. See id. at 15. Defendants also posit that the requirement 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 id. at 16. 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 id. at 14.
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. 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 the fact that he provides implant services. Rule 301(11)(3), which is more of a disclosure rule, requires that he fully disclose the terms that comprise his M.A.G.D. award. 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 cases plaintiff cites in support of his motion that concern dentists' advertisements are inapposite because they address outright bans on advertising certain achievements or specialties. Additionally, the cases are not controlling law for this court. In Borgner v. Cook (Borgner I), 33 F. Supp.2d 1327 (N.D. Fla. 1998), the court granted summary judgment for a dentist on a First Amendment claim challenging a Florida statute that prohibited dentists from advertising their membership in, or specialty recognition by, an accrediting organization not recognized by the American Dental Association ("ADA"). 33 F. Supp.2d at 1238. Subsequently, in Borgner v. Brooks (Borgner II), 152 F. Supp.2d 1317 (N.D. Fla. 2001), the court declared the revised version of the statute addressed in Borgner I unconstitutional. The court found that the statute was so ambiguous as to whether dentists could advertise their credentials from and membership in certain dental organizations that it could lead to a chilling effect on dentists who wish to take advantage of their First Amendment right to commercial speech because they could not determine whether the statute permitted them to advertise their credentials. 152 F. Supp.2d at 1322. Similarly, in Bingham v. Hamilton, 100 F. Supp.2d 1233 (E.D. Cal. 2000), the court held that a policy that prohibited the advertisement of certain credentials unless the advertising dentist had at least one year of postgraduate academic study in that particular field violated the First Amendment. 100 F. Supp.2d at 1241.
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 specialties, 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 it is not substantially likely that the plaintiff will be successful on the merits of his First Amendment claim, the Court denies his petition for a preliminary injunction.
The Court need not address the other elements of the preliminary injunction standard in light of its determination that plaintiff has failed to establish substantial likelihood of success on the merits of his 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 likelihood of success on the merits of his state law claim to warrant a preliminary injunction.
III. Conclusion
For the foregoing reasons, the Court DENIES plaintiff's petition for a preliminary injunction.