Wednesday, April 11, 2012
By Dan Schulte, J.D.
MDA Legal Counsel
From the April 2012 issue of the Journal
Question: I’ve heard about a new requirement that dentists with specialty certification must include their dental license number in all public advertisements. Does this rule also apply to general dentists who provide and/or advertise specialty services? Is it illegal for a general dentist to include his or her dental license number in public advertisements?
Answer: The requirement you are referring to is new Michigan Administrative Code Rule 338.11525(2), which states: “a dentist who is licensed as a specialist shall include his or her license number in all public advertisements for that specialty, including, but not limited to, telephone books, solicitations, print media, newspapers, and Internet advertising.”
This rule only applies to dentists who are certified as specialists. General dentists providing and/or advertising specialty services are not required to include their license number.
Rule 338.11525(2) does not prohibit general dentists from including their license number in advertisements. Nor does any other statute or administrative code rule specifically prohibit general dentists from including their license number in an advertisement. The only administrative code rule regulating general dentists advertising services for which a specialty certification is available is 338.11525(1). That rule requires general dentists to state that they are not certified as a specialist when advertising specialty services.
Michigan’s Public Health Code contains a subjective prohibition on any advertising that is false or misleading. Would it be deemed false and misleading advertising for a general dentist to include his/her license number in an advertisement describing only general dentistry services? What if the advertisement included services for which a specialty certification was available? The Public Health Code does not contain specific examples of what is considered false and misleading. Because Rule 338.11525(2) is new, it is difficult to predict how such a case would be resolved. The particular facts and circumstances of the case would play a large part in the outcome.
The state would have the burden of proving that the particular advertisement actually did mislead patients to believe that the general dentist was a specialist. This may be difficult to prove. The general public is unfamiliar with administrative code rules governing dental advertising. If patients are unaware that dentists with specialty certifications are required to include their license number in their advertisements, how can it be said that general dentists are misleading patients by including their license numbers in their advertisements to appear confusingly similar to specialists?
It could also be argued that it is unfair to sanction a general dentist when there are specific rules applicable to advertising and they are being followed. This is especially true in the case of general dentists who advertise specialty services and include the required statement that they are not certified as a specialist. If that affirmative statement is on the advertisement, then how could the inclusion of a license number mislead a patient to think the general dentist has been certified as a specialist?
No guarantees can be given how the Board of Dentistry or an administrative law judge would view these issues. The best practice, of course, is to follow the rules. In the absence of a rule prohibiting general dentists from including their license number in their advertisements, doing so should not be considered illegal.