FTC Staff Comment Before the Kentucky Board of Dentistry Concerning Proposed Regulations Governing Advertising

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Ms. Deborah L. Cameron
Kentucky Board of DentIstry
2106 Bards t ow n Road
Loulsvl11@, Kentucky 	40205
Dear Ms. Cam eron:
COMMISSION
~ 	APPROVED
~ovember 21,1986
Thank you for the courtesies extended by the Board during our conversatio~ of
November 21. 	I understand that the enclos[>d letter to Mr. Thompson will be included in
the record of the November 24, 1986 public hearing to be forwMded by the Board to the
appropriate committee of the Kentucky legislature.
Sin~~ely,
/ 	u-.-J'/~&iWOllam W. Jacobs
Director
Cleveland Regional Office

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November 21, :996
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R.B. Thompson, Executi ve Director
Kentucky Board of Dentistry
2106 Bardstown Road
Louisville, Kentucky 	",0205
Dear Mr. Thompson:
The Federal Trade Commission's Cleveland RegionB.2 O!rice and the Bure&us of
COrliumer Protection, Eeonomics 	and Compelitionll are ?;eased 	to comment 	on the
Kentucky Board of Dentistry's proposed regulation governinr advertising by dentists in
Kentucky. 	Although we reoognlze and support the Boards interest in preventing false or
deceptive advertising, 	we believe the proposed regulation is :.Jnnecessary. 	Its adoption
will 	adversely 	affect 	both 	COrf;umer 	welfare 	B..J)(j 	coli.petition 	by 	limiting 	the
dissemination of 	truthful, 	nondeceptive 	Information about dentists and their services.
We urge the Board to fargo prorr.ulgatlon of this regulation.
1. 	INTEREST AND EXPERTISE OF THE FEDBRAL TRADE ~MMlSSJON
The Federal Trade Commission is empowered under :5 U.s.C. ~S 41 	et ~. to
prevent 	unfair 	or 	deceptive 	acts 	or 	practices in 	or 	affecting 	commerce. 	Vnder its
statutory mandate, the Commission encourages competition Lilong members or licensed
professioffi to the maximum extent compatible with other legitimate state and federal
goals. 	Po:, several years the Commission hs.s been investlgati~ the competitive effects
of 	public 	and 	private 	restrictions 	on the 	busineS5 practices of 	dentists, optometrists,
lawyers, physi cians, and other state-licensed professionals. 	Our goa} is to identify and
seek 	the 	removal 	of 	restrictlons 	that 	impede 	competition, increase 	costs, 	and 	harm
consumers without providing countervefling benefits.
11 	These 	comments 	represent the views of the Clevel8f\d Regional Office and the
Bureaus 	of 	COffiumer 	Protection, Economics, 	ar1d Competition 	of 	the Federal
Trade Commission and do not necessarily represent the views of the CommissIon
or 	My indivi~u.eJ Commissioner. 	'The Commlsslon, l',owever, has ll.uthori~ed the
staft to submit these comments.

As 	pert 	of 	the 	Commission's 	eHorts 	to 	falter 	com~t1tlon among 	ljcense~
professionals, it has tumlned the ~!!ects of public aM private restrlctio~ that limit the
8billty o( pro(~slonals to enf:;Rge in truthful, nondeceptive Ilr'vertlsing.l.l 	StlJ'1lee show
thl\t 	where truthful adve~tlS::lg is permitted, prices for pro(~sional ~oods and services
are 1)Wer than where adYertisinR is res 'ricte~ or prohibited. 1:' Studies also Indle8~e tMt
removinR 	restrictions 	00 	8dvert!~ng 	does 	not 	decree.s"'e 	the 	quality 	of 	services
8vallable.4:' 	The Commission has also examined various iustifications 	that hBve been
offered fo; restrictions on 8dve!"t!s:in~ Artd hBB concluded, ~ the courtB have, that these
proffered reasons do not jt.rst!fy re-strictio~ on truthful advertising. 	For this reason. we
believe that only false or deceptive 8dverti~ng should be p!"ohi~ited. Any other standard
is 	likely 	to 	suppress 	the 	dissemination 	of 	potentially 	useful 	Information 	e..nd 	may
contribute to an increase in pri ces and l~s oC con;um er welfare.
2/
4/
See,~, Americtin Medical Association. 94 F.T .C. 70) (1979), afrd, 638 F .2d 443
(Zd Cir. 1980), afrd memo by an equally divided Court, 455 US. 676 (982). 	The
thrust of the A M.:\ 	decision - 	"that broad bans 00 acvertisng and soliciting are
inconsistent ..... ith the nation's public policy'l (94 	F.T.C. at 	lOll) - 	is consistent
with 	the 	reasoning 	of 	recent 	Supreme 	Court 	decisions 	involving 	professlonaJ
advertising regulatiorus. 	See,~, Zauderer v. Office of Disciplinary Counsel of
the Supreme Court of ohio, l05 S. Ct. 2Zfi5 (} 985) (holding that an attorney may
not 	be 	dlsclplined 	ior 	!Soliciting 	le~l 	business 	tJrough 	printed 	advertising
containing truthful and nondeceptlve information and advice regarding the legal
rights or potential clients or using nondeceptive illustrations or pictures}j Bates V.
State Bar oC Arizona, 433 US. 350 (977) (holding state supreme court prohibition
on advertising invalid under the P irst A mendment ~C eccordlng great Importance
to 	the 	role 	of 	advertJsing 	in 	the 	efficient 	functioning 	of 	the 	market 	for
professional 	services); 	Virginia SUite 	Board of Phar:nacy 	v. 	Virginia 	Citizens
Consumer 	Council, 	425 	t:' S. 	748 	(1976) 	(holdlng 	Vi:oginia 	proh.lblt1on 	on 	prIce
advertising by pharmacists ;nvalld).
Cleveland Regional Office and Bureau of Economics, ::'ederal Trade Commisslon,
Improving 	Co~um er 	A ccess 	to 	Legal 	Services: 	The 	Ca.se 	for 	Removing
Restrictions on Truthful Advertising (1984); Bureau of Economics, FederaJ Trade
Commission, Effects of Restrictions on Advertising and Commercial Practice In
the Professions: 	The Case of Optometry (1980); Benh!7TI and Benham, RWlatln~
Throu 	the Professions: 	A Pers ective on InfoMTlstion Control, 18 J.1.,. Econ. 42
; 	en 	m, 	e 	.eeLs of A 	vertlsmg on t 	nee 0 	yeglasses, 15 JJ.... &.
Econ. 337 (972).
Bureau 	of 	Economics, 	Federal Trade 	Commission, 	E ffeets 	or 	Restrictions 	on
Advertising and Commercial Practice in the ProCessions: 	The Case of Optometry
(1980); 	~uris and Mce:hesney, Advertisin 	and the Price 	and 	ualitv of Le 	!
Services: 	The 	Case 	for 	L 	1 Clinics, 	OLfi. 	€£earch 	. 	179
1979. 	See also, Cady, Restricted Advertising and Competition: 	The Case of
Retsil 	Drugs rn76); 	McChesney B.nd Muris. The E~rects of Advertising on the
,S.UB.litv of Legal Services, 65 AJ3.A-J. 1503 (l979).
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D. 	THE PROPOOED REGULATION
The ~ropose~ reRUlation ~'ould restrict the manner ir ....ich general dent:sts could
truthfully 	communicate 	info~i!!tion ebout 	the services the', oUer. 	Section 1 of the
proposec' regulAtion 	pro:'lbits 	gene~al dentists 	t:-om 	using '!he 	name 	of 	8 	branch 	of
dentistry, "such terms as 'specialist: .. or "other phrase!; c'.ZStomarily U5ed by qualified
speclRllsts" in an~' form of annotr.eement, printed material, f7 public advertisement. 	By
prohlbl ting "advertlsJng using such terms as 'specialist,' " it is unclear whether a general
dentist could state for example, tMt he or she is "experienced" 	in 8. particular field of
dentistry. 	The 	term "other 	phrases custom arDy used by ~.J8.l!fied specialists" 	Is also
undefined 	and 	makes 	the 	500pe 	of 	this 	section 	unclear. 	~ection Z of 	the 	proposed
regulation permits general dentists to list their areas of interest and the services they
provide in "lay terms" 	in advertisements that elso must disdCEe the ~nerel nature of
their practlces. 	There is no def1nltJon of the phrase "lay t~:'ms," making it difficult to
distinguish 	bet ween 	what 	the 	regulat) on 	prohibi 15 and wt\s·. it permits. 	F' urther, 	the
dlstinctioo between "lay terms" and "phrases customarily U5W by specialists' does not
~ovide any clear guidelines as to whether an advertisement contair6 material considered
Improper under the propa.>ed regulation. 	Even read narrowly, the ieguJRtion effectively
prohibIts a general dentist trom ~i~ commonly recognizee terms In advertisements or
any printed materials to de;cribe the aree..s of pr8cti~ or ttce services lawiully available
from 	that 	dentist. 	Thus, 	the propooed regulation will deny Kentucky cornumers useful
infonTlation about the avanabnity of dental service; and stine competition amooi' the
various providers of these services.
The stated purpose of the Boar<1 s proposed rt"gu1ation ;5 to set forth" the manner
in which dentists licellied in Kentucky may advertise 	denta~ services." 	The ap?arent
objective of the proposed regulation is to protect Kentucky consumers {rom being misled
into believing that 8 general dentist has been licensed and c~~tJried as a dental specialist
and 	Is 	therefore 	especl811y 	quallflec 	In 	8 	particula: 	branch of 	dentistry. 	However,
Section 	313.445 	of 	the 	Kentucky 	Revised Statute6 	speci~ca~ly rermits 	any licerned
dentist to perform dentaJ services in BrlY of the seven branches of c\entist~y reco~iz:ed as
suitable 	for 	the licensing and certification 	of 	dental spe~alists uncler 	KRS S3l3.400.
Because general 	dentists 	are qJ8.1ified 	to 	practice 	in all ~ven branches of 	denistry,
advertisng that they practice in such areas is truthful. 	The~e~ore, we submit that the
proposed regulation is mnecessary to prevent deception.
We are unaware of any suppo:-t for the proposition th!t if general dentists employ
advertising that inc1udes 	the naJ;'e of a branch of dentistry, consumers wll1 be misled.
Terms such as "orthodontics" anc "periodonticS' truthfully anC accurately describe areas
of practice in which ge;lersl dentists are legally and professionally qualified to perform
dental services in Kentucky. 	Although such words may sound more technical to some
people than "braces" or "gum SlJ'g'e:'y," they soowd be understood by mest co~wners. An
advertlsement listing area.-s or practice for a general dentist~ witoout making any cla.1m
or special e~ertise, is not likely to mislead consume:-s. 	~n the advertisement also
reveals 	the 	general 	nature 	of 	the 	practice, 	cOTlSumers 	are 	even 	let;s 	likely 	to 	be
deceived. 	FlI'the;more, the r~atjon mIght prohibit a. generaJ dentist from distributing
to patients educational tnate!iaJ prepared by the American Jental Association or other
proretS~ional gTOUPS because the 	material 	includes 	the narr.e of a branch of dentistry.
Absent strong evidence that COrEumers have been mIsled - 	Of a factual record indicating
that 	consumer-s are 11ke1:v to be misled - 	by B. ~neraJ 	~r.t!st's use or the ntime of a
branch or dentistry, this regulation should not ~ aoopted.
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Section Z of 	the 	proposed regulation does permtt ~ne:"8J dentists 	to advertise
areas of Interest and service- provided in "lay terms," 	Ther! I:'i! two problems with this
provision. 	First, limiting ~ne~aJ practitioners to the use of lay terms may result In lin
unwa.rranted marketing advantage for 	s~~e.ljc;ts.. @ven thougtl both groupl!l are leg&.1Jy
!utoori'led to per!o:-m the ssn:e se:-viC'es. 	Bv re5ervir'\l; the \l'§e of professional terms for
certified specialists, the ref0lJation dep:-:ves C'Ort5U!ners of use!u! lnfonnetion that &11ows
them 	to 	compere 	the 	quality 	and 	priC'€ 	o! 	~rvices fY.'ovioe.c 	by 	all 	legally 	quslifie<1
practitione~s - gene~&l dentists as weI.! !S spe~iaJists, ScC'Onc. as noted above, although
Section 2 provides two exam?!es of per'T'issible advertisements using lay terms, it does
not provide ftTly objective standard to determine what does or does not co~titute a "lay
term." 	All dentists, generalists and specia.:ists alike, should be permitted to describe the
ser vi ces t hey may legslly pro vi de in t he sam e trut hful, nondeC'e?ti ve words.
m. 	CONCLOSION
We believe that the Boar<1s legitimate intel"est in proteC"'Jng Kentuck")' consumer'S
from 	misleading 	denteJ 	advertlsem ents 	I.E; 	not 	advanced 	by 	the 	proposed 	regulation.
Rather, 	the regulation may harm 	consumers by limiting truthful informatlon about the
kind> of services all dentists licensed in Kentucky may lega.l1y ?rovide and by hinderillg
competition among dental serviC'e providers.
We 	have 	referred 	to 	e 	nu:nber 	of studies, 	cases, 	anc other 	materi81s 	in this
letter. 	We will be happy to supply e copy of any of these if yo\.! so desire. 	Please let us
know If we ca.n be of furt Mr assistance.
Yours trwy,
/
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,/~--'/t:~k
WllUam W. Jacobs
Regional Director
Cleveland Regio::!..l Office
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