H.  High Court Refuses To Hear

Florida Case on Dental Disclaimers

 

      The U.S. Supreme Court declined to review a federal appeals court decision that upheld a Florida law requiring dentists to include disclaimers in their advertisements.  Borgner v. Florida Board of Dentistry, cert. denied, 123 S. Ct. 688 (2002).  

 

Background

      Until 1998, Florida prohibited licensed dentists from advertising specialty practices, under Florida Statute Sec. 466.0282.  That year, Dr. Robert Borgner, who specializes in implant dentistry, challenged the constitutionality of the law in federal court.  After a federal district court agreed with him in Borgner v. Cook, 33 F. Supp. 2d 1327 (N.D. Fla. 1998), the state amended the law.

      The new version of the law allowed dentists to advertise specialty practices.  However, if the specialty area is not recognized by the American Dental Association (ADA) or the Florida Board of Dentistry, the dentist must include the following disclaimer:

 

[Implant dentistry] is not recognized as a specialty area by the American Dental Association or the Florida Board of Dentistry.

 

      Dr. Borgner had obtained specialty certification in implant dentistry from the American Academy of Implant Dentistry (AAID).  However, the ADA and the Florida Board of Dentistry did not recognize AAID as a bona fide specialty accrediting organization.  The state law required Dr. Borgner to include the following disclaimer if he wanted to advertise that he was certified as a specialist by AAID:

 

[The American Academy of Implant Dentistry] is not recognized as a bona fide specialty accrediting organization by the American Dental Association or the Florida Board of Dentistry.

 

      Dr. Borgner sued again in federal court, contending that the two state-mandated disclaimers violated his First Amendment rights.  The state board countered that the disclaimers were a constitutional alternative to outright bans on speech.  The state also pointed out that it relied on two telephone surveys showing that many consumers were misled into thinking that a dentist certified by AAID was also recognized by the state as a specialist.

      A federal district court again ruled in favor of Dr. Borgner in Borgner v. Brooks, 152 F. Supp. 2d 1317 (N.D. Fla. 2001).  The state board appealed to the U.S. Court of Appeals for the Eleventh Circuit, which reversed in March 2002.

 

Eleventh Circuit Ruling

      In Borgner v. Brooks, 284 F.3d 1204 (11th Cir. 2002), a divided three-judge panel of the Eleventh Circuit ruled 2 to 1 that the statute was constitutional.  The majority applied the familiar analysis for the regulation of commercial speech outlined by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

      The Central Hudson test first asks whether the speech concerns lawful activity and is not misleading.  If the speech meets this threshold inquiry, the government may regulate the speech only if the remaining three prongs are satisfied: (1) the state must establish a substantial governmental interest in its regulation; (2) the regulation must directly and materially advance the state’s substantial interest; and (3) the regulation must be narrowly drawn.

      The Eleventh Circuit majority determined that the speech was only potentially misleading, rather than inherently misleading.  Thus, the Florida disclaimer requirement had to pass the remaining prongs of Central Hudson.  The majority agreed that the state had several substantial interests in its regulation, including: (1) regulating the dental profession; (2) establishing uniform standards for certification; and (3) ensuring that dental ads are not misleading to consumers. 

      The majority also determined that the state regulation directly and materially advanced its substantial interests on the basis of two telephone surveys.  One survey of 500 consumers showed that two-thirds of the respondents believed that dentists certified as implant specialists by the AAID were state certified.  Another survey showed that 80 percent of those surveyed would be more likely to go to a dentist if they thought the dentist was certified by the ADA. 

      “These two surveys, taken together, support two contentions: (1) that a substantial portion of the public is misled by AAID and implant dentistry advertisements that do not explain that AAID approval does not mean ADA or Board approval; and (2) that ADA certification is an important factor in choosing a dentist/specialist in a particular practice area for a large portion of the public,” the majority explained.  “Without a disclaimer, consumers are led into thinking implant dentistry is a state-recognized specialty and that AAID and ABOI [a similar organization] enjoy state approval, when in reality, they do not.”

      Finally, the majority determined that the disclaimer requirement also satisfied the final prong of the Central Hudson test, that the regulation be narrowly drawn.  Here, the majority cited the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), for the proposition that “warnings or disclaimers might be appropriately required … to dissipate the possibility of consumer confusion or deception.”  Id. at 651.  The majority concluded that the use of disclaimers was the “least restrictive means available to accomplish the state’s objective.”

      In dissent, Judge James Hill questioned whether Dr. Borgner’s ads would mislead consumers.  “In order to offend the Constitution, commercial speech must produce some ‘identifiable harm’ that is significant enough to permit the state to mitigate it,” he wrote.  Judge Hill also pointed out that the state-mandated disclaimers may confuse many consumers into believing that AAID is a sham organization.

 

Justice Thomas Dissents From Certiorari Denial

      Dr. Borgner appealed to the Supreme Court, which denied certiorari on Dec. 9, 2002.  Justice Clarence Thomas, joined by Justice Ruth Bader Ginsburg, wrote an opinion explaining why he voted to hear the case. 

      “This care presents an excellent opportunity to clarify some oft-recurring issues in the First Amendment treatment of commercial speech and to provide lower courts with guidance on the subject of state-mandated disclaimers,” Justice Thomas wrote.  He identified as compelling two claims presented by Dr. Borgner -- “that the decision below is inconsistent with our jurisprudence in this area and that the lower courts need guidance on the permissibility and scope of state-mandated disclaimers.”

      Justice Thomas also agreed with Judge Hill that the disclaimers may cause even more confusion.  “If the disclaimer creates confusion, rather than eliminating it, the only possible constitutional justification for this speech regulation is defeated.”

      Justice Thomas’s dissent only confirms his strong stance on commercial speech issues.  Ever since his landmark concurring opinion in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), Justice Thomas has emerged as a forceful advocate for commercial speech.  See David L. Hudson, Jr., “Justice Clarence Thomas: The emergence of a commercial-speech protector,” 35 Creighton L. Rev. 485 (2002).

 

--David L. Hudson, Jr.