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COA finds 1 out of 3 dental advertising regulations unconstitutional

January 20, 2016

The regulation that compels dentists to disclose every dentist within the practice in advertisements is unconstitutional, the Indiana Court of Appeals held Wednesday. It held two other challenged regulations regarding advertising are not unconstitutional.

Dentist Dr. Irfan Atcha purchased an existing Dyer practice and began advertising his expertise in modern implant and sedation techniques. He claimed his procedures were “too advanced for most dentists, oral surgeons, and periodontists,” and promoted himself as the only “licensed and certified advanced trained dentist to perform the IV sedation and dental care on his patients.” He also used pictures that implied the use of dentures combined with dental adhesives is poisonous.

Other dentists complained to the Indiana Professional Licensing Agency and the Indiana State Board of Dentistry, which found his advertising practice made false and misleading claims of dental specialty and better materials or superior services. He was also found to have violated regulations compelling him to disclose every dentist within his practice on his advertisements.

A Marion Superior Court later found all three dental advertising regulations unconstitutional.

“Although protected by the First Amendment, commercial speech receives less protection than other forms of expression. In particular, the State retains the authority to prohibit or restrict false and misleading commercial speech. Here, the State properly restricted Atcha’s false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists,” Chief Judge Nancy Vaidik wrote.

“However, we conclude that the State may not compel a dentist to list on his advertisements every dentist in his practice. Finding no reasonable relationship between compelling the disclosure of all associated dentists and preventing deception, we agree with the trial court that the regulation does not satisfy First Amendment protections for commercial speech. Therefore, we affirm the trial court in part and reverse in part.”

The case, Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S., 49A02-1504-MI-197, was remanded to the board for reassessment of the penalty in light of this decision.  

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