FTC Staff Comment Before the Florida Board of Dentistry Concerning Proposed Regulations to Restrict Dental Advertising

\.1 0 	I '-IlP IU
L'NITED STATES OF A,,1ERICA
FEDERAL TRADE COMMISSION
WASHlf'OGT0S. D.C. 20580 	.• 'I
.~ .. ~ .. ~ .. 7;: t\
, .1., • , •. , H '';''1..,
BUREAU OF
CONSUMER PROTECTION
APril 23, 	1987
Ms. 	Gwen 	Mathews
Executive 	Director
Florida 	Board 	of 	Dentistry
130 	North Monroe 	Street
Tallahassee, 	FL 	32399-0705
Dear Ms. 	Mathews:
The 	staff 	of 	the 	Federal 	Trade 	Commission 1 	is 	pleased 	to
offer 	these 	comments 	in 	response 	to 	your 	invitation 	of 	April 	3,
1987, 	for 	pUblic 	comments 	on 	the 	Florida 	Board 	of 	Dentistry's
proposed 	regulations 	restricting 	dental 	advertising.
Advertising 	is 	beneficial 	to 	consumers 	because 	it 	provides
informetion 	about 	the 	i~div~d~als or 	firms 	offering 	services 	that
they 	m2Y wish 	to 	purchase. 	Information 	facilitates 	purchase
decisions 	that 	reflect 	t=ue 	c~ns~er Freferences, 	and 	promotes
the 	efficlen;: 	del~very 	~i 	ser,,-:..:as. 	~~e -:::era:::::::--:: 	":'::-;'8 	:'::9 	~car::::'
to 	eliminate 	the 	provisions 	in 	its 	proposed 	rules 	that 	restrict
the 	use 	of 	truthful, 	nondeceptive 	advertisinq. 	We 	also 	suggest
that 	the 	Board 	recommend 	legislation 	repealing 	state 	laws 	that
siThilarly 	restrict 	such 	advertising.
.Interest 	and 	Exnerience 	of 	the 	Federal 	Trade 	Commission
Th~ Federal 	Trade 	Commission 	is 	empowered 	under 	15 	U.S.C.
§ § 	41 	et 	seg. 	to 	prevent 	unfair 	metbuds 	of 	cpmpe.... itioll 	and 	unfair
or 	deceptive 	acts 	or 	practices 	in 	or 	affecting 	commerce. 	Pur-
suant 	to 	this 	statutory 	mandate, 	the 	Commission 	has 	attempted 	to
encourage 	competition 	among 	members 	of 	licensed 	professions 	to
the 	maximum 	extent 	compatible 	with 	oth~r legitimate 	state 	and
federal 	goals. 	For 	several 	years, 	the 	Comrrission 	staff 	has 	been
investigating 	the 	competitive 	effects 	of 	restrictions 	on 	the
business 	practices 	of 	state-licensed 	pr~fessionals, including
dentists, 	optometrists, 	lawyers, 	physicians, 	a~d others. 	Our
goal 	has 	been 	to 	identify 	and 	seek 	the 	removal 	of 	restrictions
that 	impede 	competition 	and 	increase 	cost, 	without 	providing
significant 	countervailing 	benefits 	to 	consumers.
1 	These 	comments 	represent 	the 	views 	of 	the 	Federal 	Trad£
Commission's 	Bureaus 	of 	Consumer 	Protec~ion, Economics, 	and
Co~petition, and 	do 	not 	necessarily 	represent 	the 	views 	of 	the
Commission 	or 	any 	individual 	Commissioner. 	The 	Commission, 	how-
ever, 	has 	voted 	to 	authorize 	the 	submission 	of 	these 	comments.
Bicentennial of the United States Constitution
(1787 .. 1987)

As 	a 	part ·of 	the 	Commission's 	efforts 	to 	foster 	competition
among 	licensed 	professionals, 	it 	has 	examined 	the 	effects 	of 	pub-
~ic and 	private 	restrictions 	that 	limit 	the 	ability 	of 	profes-
sionals 	to 	engage 	in 	nondeceptive 	advertising. 2 	Studies 	indicate
that 	prices 	for 	professional 	goods 	and 	services 	are 	lower where
advertising 	exists 	than where 	it 	is 	restricted 	or 	prohibited. 3
Studies 	also 	provide 	evidence 	that 	restrictions 	on 	advertising
raise 	irices 	but 	do 	not 	increase 	the 	quality 	of 	goods 	and 	ser-
vices. 	Therefore, 	to 	the 	extent 	that 	nondeceptive 	advertising
is 	restricted, 	higher 	prices 	and 	a 	decrease 	in 	consumer welfare
may 	result.
2 	See, 	~., 	American 	Medical 	Ass'n, 	94 	F.T.C. 	701 	(1979),
aff'd, 	638 	F.2d 	443 	(2d 	Cir. 	1980), 	aff'd memo 	by 	an 	equally
divided 	Court, 	455 	U.S. 	676 	(1982). 	The 	thrust 	of 	the 	AMb
decision 	-- 	·tthat 	broad 	bans 	on 	advertising 	and 	soliciting 	are
inconsistent with 	nation's 	public 	policy" 	(94 	F.T.C. 	at 	1011) 	--
is 	consistent 	with 	the 	reasoning 	of 	recent 	Supreme 	Court 	deci-
sions 	involving 	professional 	regulations. 	See, 	~., 	Zauderer v.
Office 	of 	Disciplinary 	Counsel 	of 	the 	Supreme 	Court 	of 	Ohio, 	471
U.S. 	626 	(1985) 	(holding 	that 	an 	attorney 	may 	not 	be 	disciplined
for 	solicitinq 	legal 	business 	through 	printed 	advertising 	con-
taining 	truthful 	and 	nondeceptive 	information 	and 	regarding 	the
legal 	rights 	of 	potential 	clients 	to 	use 	nondeceptive 	illustra-
tions 	or 	pictures) i 	Bates 	v. 	State 	Bar 	of Arizona, 	433 	U.S. 	350
(1977) 	(holding 	invalid 	state 	supreme 	court 	prohibition 	on 	adver-
tising 	under 	the 	First 	Amendment 	and 	according "great 	importance
to 	the 	role 	of 	advertising 	in 	the 	efficient 	functicning 	of 	the
mnrke~ for 	professional 	services) i 	V~.rginia 	State 	Board 	of
Pharmacy 	v. 	Virginia 	Citizens 	Consum~r Council, 	~25 U.S. 	748
(1976) 	(holding 	invalid 	a 	Virginia 	prohibition 	on 	advertising 	by
pharmaciEts) . 	.
3 	Cleveland 	Regional 	Office 	and 	B~reau of 	Economics,
Federal 	Trade 	Commission, 	Improving 	Consumer Access 	to 	Legal
Services: 	The 	Case 	for 	Removing 	Restrictions 	on 	Truthful
Advertising 	(1984) i 	Bureau 	of 	Economics, 	Federal 	Trade 	Com-
mission, 	Effects 	of 	Restrictions 	on 	Advertising 	and 	Commercial
Practice 	in 	the 	Professions: 	The 	Case 	of 	Optometry 	(1980) i
Benham 	and 	Benham, 	Regulation 	T~rough the 	Professions: 	A
Perspective 	on 	Information 	Control, 	18 	J.L. 	& Econ. 	421 	(1975) i
Benham, 	The 	Effects 	of 	Advertising 	on 	the 	Price 	of 	Eyeglasses, 	15
J.L. 	& Econ. 	337 	(1972).
4 	Bureau 	of 	Economics, 	Federal 	Trade 	Commission, 	Effects 	of
Restrictions 	on 	Advertising 	and 	Commercial 	Practice 	in 	the 	Pro-
fessions: 	The 	Case 	of 	Optometry 	(1980) i 	Muris 	and 	McChesney,
Advertising 	and 	the 	Price 	and 	Quality 	of.Legal 	Services: 	The
Case 	for 	Legal 	Clinics, 	1979 	Am. 	B. 	Found. 	Research 	J. 	179
(1979). 	See 	also 	Cady, 	Restricted 	Advertising 	and 	Competition:
The 	Case 	of 	Retail 	Drugs 	(1976).

· 	We 	have 	examined various 	justifications 	that 	have 	been
offered 	for 	restrictions 	on 	advertising 	and 	have 	concluded 	that
these 	arguments 	do 	not 	warrant 	restrictions 	on 	truthful, 	non-
deceptive 	communications. 	For 	this 	reason, 	we 	believe 	that 	only
false 	or 	deceptive 	advertising 	should 	be 	prohibited. 	Any 	ot~e~
standard 	is 	likely 	to 	suppress 	the 	dissemination 	of 	potentially
useful 	information 	and 	contribute 	to 	an 	increase 	in 	prices.
Affirmative 	Pisclosure 	Oblig~tions
Any 	disclosure 	obligation 	increases 	advertising 	costs,
either 	because 	it 	increases 	the 	length 	of 	the 	message 	or 	requires
practitioners 	to 	forego 	some 	portion 	of 	the 	advertising 	message
they 	would 	have 	delivered 	had 	the 	space 	not 	been 	occupied 	by 	the
disclosure. 	Unnecessary 	disclosure 	requirements 	could 	therefore
result 	in 	less 	useful 	information 	being 	made 	available 	to 	con-
sumers. 	Consequently, 	we 	believe 	that 	disclosures 	should 	be
mandated 	only where 	they 	are 	necessary 	to 	prevent 	deception.
Although 	affirmative 	disclosures 	may 	be 	justified 	in 	some
instances, 	several 	of 	the 	Board's 	proposed 	regulations 	appear
broader 	than 	necessar! 	to 	prevent 	deception 	of 	the 	public.
Rule 	21G-4.002(2) 	would 	require 	that 	all 	advertising 	"con-
tain 	the 	name, 	address, 	telephone 	number 	of 	the 	dentist, 	and 	of
o~~er dentists 	witn 	whom 	the 	dentist 	is 	associated."5 	This 	rule
could 	impose 	burdensome 	advertising 	costs 	on 	those 	group 	prac-
tices 	that 	include 	many 	partners 	or 	~ssociates, and 	could make
any 	advertising 	by 	such 	firms 	impractical, 	particularly 	broadcast
advertising. 	We 	believe 	that 	the 	Board 	can 	better 	accomplish 	the
goal 	of 	ensuring 	identification 	and 	accountability 	of 	individual
practitioners 	by 	requiring 	that 	the 	name 	of 	each 	dentist 	be 	dis-
played 	in 	a 	conspicuous 	place, 	or 	noted 	on 	bills, 	receipts 	and
patient 	records.
Rule 	21G-4.002(4) 	would 	require 	that 	dental 	advertisements
mentioning 	a 	fee 	include 	"a 	description 	of 	[the] 	service 	using
the 	e~act wording 	for 	that 	service 	contained 	in 	the 	American
Dental 	Association 	'Code 	on 	Dental 	Procedures 	and 	Nomenclature.'"
This 	requirement 	is 	troublesome 	for 	two 	reasons. 	First, 	it
appears 	to 	require 	advertisers 	to 	use 	technical 	terminology 	that
may 	be 	confusing 	and 	not 	easily 	understood 	by 	consumers. 	It 	thus
limits 	the 	ability 	of 	dental 	advertisers 	to 	convey 	their 	message
as 	effectiyely 	as 	possible 	and 	may 	have 	a 	chilling 	effect 	upon
desirable 	advertising. 	Second, 	this 	provision 	appears 	to 	pre-
clude 	the 	advertising 	of 	fees 	for 	any 	services 	that 	are 	not
included 	in 	the 	ADA 	Code 	on 	Dental 	Procedures 	and 	Nomenclature,
5 	We 	note 	that 	this 	language 	was 	previously 	included 	in 	the
statute 	but 	was 	specifically 	deleted 	in 	amendments 	adopted 	by 	the
legislature 	last 	year.
3

6
such 	as 	new 	or 	innovative 	techniques 	that 	are 	not 	yet widely 	used
by 	dental 	practitioners.
Section 	21G-4.002(3) (g) 	provides 	that 	advertisements 	tor
tree 	or 	discounted 	services must 	comply with 	Section 	455.25 	of
the 	Florida 	statutes. 	This 	statutory 	provision, requires 	various
health 	care 	providers, 	including 	dentists, 	to 	include 	a 	lengthy
disclosure 	in 	all 	advertisements 	for 	free 	or 	discounted 	aer-
vices. 6 	According 	to 	this 	disclosure, 	consumers 	are 	not 	obli-
gated 	to 	pay 	for 	any 	treatment 	performed 	as 	a 	result 	of 	respond-
ing 	to 	an 	ad 	for 	free 	or 	discounted 	services. 	This 	disclosure
requirement 	is 	not 	necessary 	to 	prevent 	deception 	since 	there 	is
nothing 	inherently misleading 	in 	offering 	free 	or 	discounted 	ser-
vices. 	Furthermore, 	the 	disclosure 	may 	be 	so 	burdensome 	as 	to
reduce 	the 	amount 	of 	price 	advertising. 	Not 	only 	will 	advertis-
ing 	costs 	increase, 	but 	the 	dentist's 	ability 	to 	provide 	neces-
sary 	dental 	services 	to 	his 	or her 	patients 	may 	be 	impaired.
According 	to 	this 	provision, 	if 	a 	consumer 	responds 	to 	an 	ad 	for
a 	discount 	on 	dental 	x-rays, 	and 	the 	x-rays 	reveal 	that 	the 	con-
sumer has 	an 	abscess 	that 	needs 	immediate 	treatment, 	the 	consumer
could 	have 	this 	work 	done 	and 	then 	legally 	refuse 	to 	pay 	for 	it.
Such 	a 	result 	would 	most 	likely 	reduce 	dentists' 	incentive 	to
advertise 	free 	or 	discounted 	services, 	or 	else 	encourage 	dentists
to 	avoid 	the 	application 	of 	this 	provision 	by 	delaying 	necessary
treatment 	for 	several 	days. 	The 	Board 	can 	better 	accomplish 	its
apparent 	goal 	of 	preventing 	dentists 	from 	charging 	consumers 	for
hidden 	costs 	by 	requiring 	that 	dentists 	seek 	the 	patient's 	per-
mission 	before 	undertaking 	any 	additional 	procedure 	that 	is 	not
included 	in 	treatment 	advertised 	as 	free 	or 	discounted.
We 	recognize 	that, 	in 	general, 	the 	more 	information 	that 	is
available 	to 	consumers, 	the 	better prepared 	they will 	be 	to 	make
well-reasoned 	purchases. 	We 	believe, 	however,- that 	the 	disclo-
sures 	required 	by 	the 	Board 	are 	counterproductive. 	By 	increasing
advertising 	costs, 	they may 	discourage 	some 	dentists 	from 	adver-
tising 	and 	thereby 	deny 	consumers 	useful 	information 	respecting
available 	dental 	services. 7 	We 	recommend 	that 	the 	Board 	not
The 	required 	disclosure 	consists 	of 	the 	following:
The 	patient 	and 	any 	other person 	responsible 	for 	pay-
ment 	has 	a 	right 	to 	refuse 	to 	pay, 	cancel 	payment, 	or
be 	reimbursed 	for 	payment 	for 	any 	other 	service, 	exam-
ination, 	or 	treatment 	which 	is 	performed 	as 	a 	result 	of
and 	within 	72 	hours 	of 	responding 	to 	the 	advertisement
for 	free, 	discounted 	fee, 	or 	reduced 	fee 	service, 	exam-
ination, 	or 	treatment.
7 	The 	Board 	should 	bear 	in mind 	that 	elimination 	of 	these
requirements 	would 	not 	preclude 	consumers 	who 	desire 	such 	infor-
mation 	from 	requesting 	it 	from 	the 	advertiser.
4

adopt 	these 	provisions, 	and 	that 	it 	seek 	the 	repeal 	of 	the 	under-
lying 	statutory 	provision, 	Fla. 	Stat. 	§ 	455.25.
Prohibitions 	on 	Solicitation
Rule 	21G-4.002(7) 	would 	prohibit 	all 	"in 	person 	and 	tele-
phone 	solicitation 	of 	dental 	services 	by 	a 	dentist 	or 	his 	agent."
This 	provision 	would 	res~rict the 	flow 	of 	commercial 	information
more 	than 	is 	necessary 	to 	protect 	consumers 	because 	it 	would
preclude 	truthful, 	nondeceptive 	communications 	in 	circumstances
that 	pose 	little 	or no 	risk 	of 	undue 	influence.
In-person 	and 	telephone 	contacts 	may 	provide 	consumers 	with
truthful, 	nondeceptive 	information 	that 	will 	help 	them 	select 	a
dentist. 	Such 	contacts 	can 	convey 	information 	about 	the 	avail-
ability 	and 	terms 	of 	a 	dentist's 	services 	and, 	in 	this 	respect,
they 	serve 	much 	the 	same 	function 	as 	print 	advertising. 	See
Ohralik v. 	Ohio 	State 	Bar Association, 	436 	U.S. 	447, 	457 	(1978).
Some 	restrictions 	on 	solicitation may 	be 	justified. 	Cer-
tainly, 	false 	or 	deceptive 	solicitation 	and 	solicitation 	of
persons 	who 	have 	informed 	the 	dentist 	that 	they 	do 	not 	wish 	to 	be
contacted 	by 	him may 	appropriately 	be 	prohibited. 	We 	recognize
~~at 	i~ 	ce~~~~~ ~i==~s~~r.=es in-~e~son and 	~elenhone sol~ci
tation 	could 	result 	in 	overreaching 	or 	undue 	influence, 	and 	a
state may 	therefore 	legitimately 	insist 	that 	dentists 	and 	their
agents 	not 	exert 	such 	undue 	influence. 	See 	Ohralik v. 	Ohio 	State
Bar 	Association, 	436 	U.S. 	447 	(1978). 	But 	in 	our view, 	this 	does
not 	justify 	a 	blanket 	ban 	on 	the 	use 	of 	all 	in-person 	and 	tele-
phone 	solicitation. 	'Such 	as 	ban might, 	for 	example, 	bar 	dentists
from 	speaking 	to 	interested 	groups 	about 	dental 	care, 	a 	situation
unlikely 	to 	result 	in 	overreaching 	or 	undue 	influence.
The 	Federal 	Trade 	Commission 	considered 	the 	concerns 	that
underlie 	the 	Ohralik 	opinion 	when 	it 	decided 	American 	Medical
Association, 	94 	F.T.C. 	701 	(1979). 	After 	weighing 	the 	possible
harms 	and 	benefits 	to 	consumers, 	the 	Commission 	ordered 	the 	AHA
to 	cease 	and 	desist 	from 	restricting 	solicitation, 	but 	permitted
the 	AHA 	to 	proscribe 	uninvited, 	in-person 	solicitation 	of 	persons
who, 	because 	of 	their 	particular 	circumstances, 	may 	be 	vulnerable
to 	undue 	influence. 	We 	suggest 	the 	Board 	consider 	using 	this
standard, 	which 	protects 	consumers 	from 	harm 	while 	allowing 	them
to 	receive 	information 	about 	available 	dental 	goods 	and 	services.
Telephone 	solicitation, 	like 	in-person 	solicitation, 	can
also 	convey 	useful 	information 	to 	consumers, 	and 	it 	may 	present
no 	greater 	risk 	of 	the 	exercise 	of 	undue 	influence 	than 	does 	in-
person 	solicitation. 	Consumers 	are 	accustomed 	to 	telephone 	mar-
keting. 	They 	receive 	calls 	from 	persons 	offering 	the 	sale 	of
various 	goods 	and 	services, 	conducting 	surveys 	about 	the 	products
and 	services 	consumers 	use, 	seeking 	contributions 	to 	charities,
and 	requesting 	support 	for 	political 	candidates. 	Consumers 	can
5

;
easily 	terminate 	offers 	of 	dental 	services 	communicated 	by
telephone.
Although 	the 	standard 	for 	in-person 	solicitation 	discussed
above 	may 	also 	be 	appropriate 	here, 	we 	are 	not 	prepared 	to 	make 	a
final 	recommendation 	on 	the 	proper 	treatment 	of 	telephone 	solici-
tation. 	We 	do 	believe, 	however, 	that 	it 	should 	not 	be 	regulated
any more 	stringently 	than 	in-person 	solicitation, 	and 	that 	an
absolute 	ban 	on 	telephone 	solicitation 	is 	unnecessarily 	restric-
tive.
prohibitions 	on 	Quality 	and ~pecialization Claims
section 	21G-4.002(3) (c) 	and 	Fla. 	stat. 	§ 	466.019(2) (c)
prohibit 	advertisements 	containing 	"laudatory 	statements 	about
the 	dentist 	or 	group 	of 	dentists." 	In 	addition, 	section 	21G-
4.002(3) (e) 	of 	the 	Board's 	proposed 	Rules 	and 	Fla. 	Stat.
§ 	466.019(2) (e) 	prohibit 	any 	dental 	advertisement 	which 	"relates
to 	the 	quality 	of 	dental 	services 	as 	compared 	to 	other 	available
dental 	services." 	We 	recommend 	that 	the 	Board 	eliminate 	these
proposed 	rules 	and 	seek the 	repeal 	of 	the 	statutory provisions.
These 	t~c ~rcvi5i=~s in 	effect 	prohibit 	vi~~ally ~ll 	~~al
ity 	and 	superiority 	claims. 	These 	prohibitions 	restrict 	m~ny
forms 	of 	comparative 	advertising, 	which 	can 	be 	a 	highly 	effective
means 	of 	informing 	and 	attracting 	customers. 	They 	also 	lessen
competition .among 	dentists. 	When 	sellers 	cannot 	truthfully 	com-
pare 	the 	attributes 	of 	their 	services 	to 	those 	of 	their 	competi-
tors, 	their 	incentive 	to 	improve 	cr 	offer 	different 	products,
services, 	or 	prices 	is 	likely 	to 	decrease.
Bans 	on 	laucatory 	claims 	are 	particUlarly 	likely 	to 	injure
competition 	and 	consumers 	when 	they 	are 	interpreted 	to 	prohibit 	a
wide 	range 	of 	factual 	statements. 	For 	example, 	virtually 	all
statements 	about 	a 	practitioner1s 	qualifications, 	experience, 	or
performance 	can 	be 	considered 	to 	be 	laudatory. 	Bans 	on 	all 	such
claims 	would 	make 	it very 	difficult 	for 	dentists 	to 	provide 	con-
sumers 	with 	truthful 	information 	about 	the 	differences 	between
their 	services 	and 	those 	of 	their 	competitors.
section 	21G-4.002(5) 	of 	the 	proposed 	rules 	allows 	general
dentists 	to 	advertise 	specialty 	services 	so 	long 	as 	the 	adver-
tisement 	states 	that 	the 	service 	will 	be 	performed 	by 	a 	general
dentist. 	Because 	we 	believe 	it 	is 	important 	that 	general 	den-
tists 	with 	expertise 	or 	experience 	in 	specific 	areas 	be 	allowed
to 	communicate 	that 	expertise 	or 	experience 	to 	the 	public, 	we
support 	the 	Board's 	effort 	to 	allow 	general 	dentists 	to 	advertise
specialty 	services. 	In 	our view, 	only 	specialization 	claims 	tha~
are 	~eceptive, such 	as 	a 	claim 	falsely 	stating 	that 	a 	dentist 	is
a 	specialist, 	need 	be 	prohibited. 	The 	Board's 	proposed 	rule
apparently 	leaves 	general 	dentists 	free 	to 	make 	truthful, 	non-
deceptive 	claims 	that 	they 	concentrate 	in 	a 	particular 	field 	of
6

dentistry, 	if 	accompanied 	by 	a 	disclosure 	that 	they 	are 	general
dentists. 	Although 	we 	are 	not 	convinced 	that 	this 	affirmative
disclosure 	requirement 	is 	necessary 	to 	avoid 	deception, 	it 	may
not 	be 	greatly 	burdensome 	and 	it 	apparently 	permits 	dentists 	to
promote 	the 	whole 	range 	of 	services 	they 	are 	licensed 	to 	perform.
Prohibitions 	on 	Appeals 	to 	Fear
Section 	21G-4.002(3) (f) 	of 	the 	proposed 	rules 	and 	Fla. 	Stat.
§ 	466.019(2) (f) 	prohibit 	any 	dental 	advertising 	which 	"is 	likely
to 	appeal 	primarily 	to 	a 	layperson's 	fears." 	We 	urge 	the 	Board
to 	eliminate 	this 	Rule 	and 	seek the 	repeal 	of 	the 	statutory pro-
vision.
This 	particular 	restriction 	is 	ambiguous 	in 	that 	it 	could 	be
intended 	to 	ban 	ads 	intended 	to 	heighten 	fears 	or 	it 	could 	be
~ntended to 	prohibit 	ads 	intended 	to 	diminish 	fears. 	Under
either 	interpretation, 	however, 	the 	restriction 	is 	overly broad
and 	susceptible 	to 	subjective 	interpretations 	that 	may 	have
little 	to 	do 	with 	the 	truth 	or 	falsity 	of 	a 	particular 	statement.
If 	the 	purpose 	of 	the 	provision 	is 	to 	prevent 	ads 	intended
t~ ~e~ghten cons~e~ faa=s, 	t~is purpose 	could 	best 	be 	met
through 	the 	Board's 	prohibition 	on 	deceptive 	or misleading 	ads
under 	Section 	21G-4.002(3). 	If 	the 	Board 	construes 	this 	pro-
vision 	as 	prohibiting 	all 	ads 	intended 	to 	diminish 	consumer
fears, 	then 	this 	provision 	could 	deter 	dentists 	from 	engaging 	in
adv~rtising that 	dentists 	think 	the 	Board 	would 	consider 	likely
to 	allay 	a 	layperson's 	fears, 	but 	which 	is, 	nevertheless, 	non-
deceptive 	and 	beneficial 	to 	consumers. 	In 	fact, 	millions 	of
~ericans are 	dental 	phobics 	-- 	"so 	terrified 	of 	dental 	treatment
that 	they 	avoid 	it 	entirely" 	and 	millions 	of .other Americans
suffer 	from 	dental 	anxiety.S 	Yet 	"modern 	dental 	techniques 	and
equipment 	have 	greatly 	reduced 	and 	often 	eliminated 	any 	pain
associated 	with 	dental 	treatments."9 	Bans 	on 	ads 	likely 	to
appeal 	to 	a 	layperson's 	fears 	could 	prevent 	dentists 	from 	any
advertising 	directed 	to 	those 	consumers 	who may 	be most 	in 	need
of 	dental 	care 	-- 	consumers 	who 	are 	so 	frightened 	or 	anxious
about 	dental 	treatment 	that 	they 	postpone 	necessary 	care 	to 	the
detriment 	of 	their 	dental 	health. 	Such 	bans 	may 	even 	discourage
dentists 	from 	using 	such 	unobjectionable 	terms 	such 	as 	"gentle"
care.
8
(1986) .
9
American 	Dental 	Association, 	Guide 	to 	Dental 	Health 	37
7

Conclusion
In 	sum, 	we 	recommend 	that 	the -Board-not 	adopt 	restraints 	on
nondeceptive 	advertising 	and 	that 	it 	seek 	repeal 	of 	the 	statutory
provisions 	discussed 	above. 	We 	believe 	those 	changes 	will 	pro-
vide 	substantial 	benefits 	to 	the 	public, 	and 	permit 	access 	to 	a
wider 	range 	of 	truthful 	information 	about 	the 	availability 	of
dental 	services. 	They 	should 	also 	help 	to 	stimulate valuable
co~petition among 	dentists 	and 	improve 	the 	efficiency 	with 	which
dental 	services 	are 	delivered, 	while 	still 	protecting 	the 	public
from 	false 	or 	deceptive 	advertising.
Sincerely,
~~'/?~~William MacLeod
Director
8