American Academy of Implant Dentistry v. Parker
2017 U.S. App. LEXIS 10803
| 5th Cir. | 2017Background
- Texas regulation (Tex. Admin. Code §108.54) permits advertising as a "specialist" only for ADA-recognized, ADA-accredited specialties; Texas Board relies on ADA recognition.
- Organizational plaintiffs (four specialty academies) certify diplomates in areas the ADA has not recognized; five individual dentists limit practice to implant dentistry, dental anesthesiology, oral medicine, or orofacial pain and hold such diplomate credentials.
- Texas rules (§§108.55–108.56) allow general dentists to advertise services and credentials but require clear disclosure of "General Dentist" and forbid implying specialization unless ADA-recognized.
- Plaintiffs sued seeking an injunction as-applied, arguing the rules violate the First Amendment (commercial speech) and claimed Fourteenth Amendment violations; district court granted summary judgment to plaintiffs on First Amendment claim and enjoined enforcement as to them.
- Fifth Circuit reviews de novo, applies Central Hudson commercial-speech test, and affirms the district court’s as-applied injunction, holding the Board did not meet its burden to justify §108.54 under Central Hudson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed advertising is protected commercial speech (lawful and not inherently misleading) | Advertising as specialists conveys truthful, nondeceptive information about practice areas and diplomate credentials; thus protected | Term "specialist" in unregulated context is ambiguous/devoid of intrinsic meaning and therefore inherently misleading | Protected: speech is lawful and not inherently misleading; protection applies (threshold met) |
| Whether the government asserted a substantial interest | Plaintiffs accept protecting consumers from misleading ads but dispute that Board can anchor specialty definition solely to ADA | Board asserts substantial interests in preventing consumer confusion, uniform certification standards, and licensing standards | Board has substantial interests (court assumes substantial interests satisfied) |
| Whether §108.54 directly and materially advances the asserted interests | A total ban on using "specialist" when ADA does not recognize the area does not materially advance consumer protection because truthful, nonmisleading speech can be conveyed | §108.54 establishes a clear uniform standard (ADA list) and prevents misleading specialty claims | Not satisfied: Board failed to show real harms that §108.54 materially alleviates; record evidence insufficient to meet burden |
| Whether the regulation is no more extensive than necessary (narrow tailoring) | Less-restrictive alternatives exist (disclaimers, screening certifying organizations, state standards) | The Board contends other advertising avenues exist and regulation is justified to preserve clarity | Not satisfied: §108.54 is overbroad as applied; Board did not consider or justify less-burdensome means on the record |
Key Cases Cited
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (establishes four-part test for commercial speech regulation)
- In re R.M.J., 455 U.S. 191 (commercial speech must be lawful and not misleading; potential versus inherent misleadingness)
- Edenfield v. Fane, 507 U.S. 761 (government must show harms are real and regulation materially alleviates them)
- Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91 (certification-by-organization advertising not inherently misleading when bona fide organization is identified)
- Ibanez v. Florida Dept. of Business & Professional Regulation, 512 U.S. 136 (state must justify restriction on non-misleading commercial speech under Central Hudson)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (relationship between asserted harm and regulatory means examined under Central Hudson)
- Pub. Citizen, Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir.) (evidentiary and tailoring requirements for upholding restrictions on commercial speech)