BILL ANALYSIS
AB 1026
Page 1
ASSEMBLY THIRD READING
AB 1026 (Oropeza)
As Amended January 10, 2001
Majority vote
HEALTH 15-0 APPROPRIATIONS 19-0
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|Ayes:|Thomson, Bates, Chan, |Ayes:|Migden, Bates, Alquist, |
| |Chu, Dickerson, Frommer, | |Aroner, Ashburn, Cedillo, |
| |Koretz, Negrete McLeod, | |Corbett, Correa, |
| |Robert Pacheco, Richman, | |Goldberg, Robert Pacheco, |
| |Runner, Washington, | |Papan, Pavley, Runner, |
| |Wayne, Cohn, Zettel | |Simitian, Thomson, |
| | | |Steinberg, Wiggins, |
| | | |Wright, Wyland |
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SUMMARY : Prohibits a licensed dentist from advertising that he
or she is a "specialist" or "specializes" in an area of practice
unless he or she is certified by a specialty board recognized by
the American Dental Association (ADA) in the area in which
specialization is advertised, or by a specialty board with
equivalent requirements approved by the Dental Board of
California (DBC). Specifically, this bill :
1)Requires, for purposes of existing restrictions on
advertising, a licensed dentist who includes a statement that
he or she limits his or her practice to a specific field, but
who is not certified or eligible for certification in that
field by a board recognized by the ADA or by a dental
specialty board with equivalent requirements approved by DBC,
to include a statement that he or she is a general dentist.
2)Prohibits a licensed dentist from advertising that he or she
is a "specialist" or "specializes" in an area of practice
unless he or she is certified or eligible for certification by
a dental specialty board recognized by the ADA in the area in
which specialization is advertised, or by a dental specialty
board with equivalent requirements approved by DBC.
EXISTING LAW :
1)Provides for various restrictions on advertising for
licentiates of the healing arts. These requirements include a
provision permitting advertising to include a statement that
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the practitioner is certified by a private or public board or
agency or a statement that the practitioner limits his or her
practice to specific fields.
2)Restricts a licensed dentist who limits his or her practice to
a specific field to only including a statement that he or she
is certified by a board or association if the board or
association is recognized by DBC.
3)Restricts a licensed physician to only including a statement
that he or she is certified by a board or association if the
board or association is either:
a) An American Board of Medical Specialties member board;
b) A board or association with equivalent requirements
approved by the Medical Board of California; or,
c) A board or association with an Accreditation Council for
Graduate Medical education approved postgraduate training
program that provides complete training in that specialty
or subspecialty.
4)Prohibits a licensed physician from using the term "board
certified" unless the certifying organization is a board or
association described in existing law in #3 above.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis, costs to DBC to enforce the advertising
restrictions are offset by licensing fees and other revenues
(State Dentistry Fund). This bill contains a crimes and
infractions disclaimer.
COMMENTS :
1)According to the author, this bill provides a statutory
prohibition against a dentist's advertising that he or she
"specializes" in an area of dentistry where there is no
ADA-recognized specialty. The author states that there have
been a number of print advertisements where those who perform
implant dentistry are holding themselves out to be "implant
dentists" or whose practice "specializes" in implant
dentistry. The author points out that there are eight
ADA-recognized specialties, but none in implant dentistry.
The eight ADA-recognized specialties are: endodontics,
periodontics, prosthodontics, orthodontics, pediatric
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dentistry, oral surgery; oral radiology; and oral pathology.
The author states that the public is placed at risk when
dentists hold themselves out as implant specialists when no
such ADA-recognized specialty board exists, because the
non-ADA specialty board has not met the same criteria for
approval as the eight sanctioned ADA specialty boards. The
author states that implant dentistry is a serious procedure
that necessitates the practitioner has the requisite skill and
training to successfully complete the task. The author
asserts that advertising oneself as specializing in implant
dentistry implies that the dentist has significant education
and training in the field of implant dentistry, it is not
necessarily true that this is the case.
2)Existing law states that a dentist "who limits his or her
practice to a specific field or fields shall only include a
statement that he or she is certified or eligible for
certification by a private or public board or parent
association recognized by [the Dental Board of California]."
Historically, DBC has only recognized those boards or
associations officially recognized by the ADA. However, an
individual dentist and the American Academy of Implant
Dentistry (AAID), which states that it includes some 211
California members but which is not an ADA-recognized
specialty, filed suit in 1997 challenging DBC's position that
dentists could not advertise AAID credentials. Although this
initial suit was dismissed as unripe because the plaintiffs
had not sought relief directly from DBC, the DBC sought to
address the issue by proposing regulations that would provide
criteria for when a board or association could be recognized
by DBC and thus allow advertising of credentials. Among the
criteria proposed in these regulations were at least one year
of formal postgraduate education at an accredited dental or
medical school.
Based on these proposed regulations, AAID filed suit again in
2000 in the United States District Court, based on DBC's
enforcement of these proposed regulations. In granting
summary judgment overturning DBC's prohibition on the
advertising of AAID credentials, the court found that DBC
failed to show that the advertisement of AAID credentials was
inherently misleading, and that DBC failed to show that any
potential for consumer deception cannot be addressed by
disclosure requirements rather than a prohibition. The
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specific finding was that "the Dental Board's enforcement
policy is unconstitutional to the extent that it prohibits
advertisement of AAID credentials unless the advertising
dentist has at least one year of post graduate academic study
in implant dentistry."
The California Dental Association, in support of this bill,
states that due to this court decision, DBC's authority to set
minimum consumer protection standards for "specialty"
advertising has been called into question.
3)The California Dental Association (CDA) is the sponsor of this
bill, and states that the thrust of this bill is designed to
prevent the public from being mislead into believing there is
a certain specialty designation when none exists. CDA states
that this bill generally follows the manner in which the law
treats specialty advertising for physicians. CDA states that
this bill precludes a dentist from advertising that he or she
specializes in a certain type of dentistry if there is no
relevant board approved by the ADA, but also provides that if
no relevant ADA specialty board exists, DBC may entertain
applications for approval for specialty designation. CDA
argues that it believes strongly that minimum standards for
the advertisement of non-recognized disciplines (implant
dentistry, laser dentistry, cosmetic dentistry) provide a
legitimate and important consumer protection. According to
CDA, there are many weekend or correspondence courses that
provide a piece of paper but do not offer any real training.
Additionally, CDA asserts that it is inappropriate to imply
expertise or specialty in an area of dentistry that is
routinely provided by a general dentist, such as cosmetic
dentistry. By following the model has worked successfully
with physicians and the Medical Board of California, CDA
states that this bill will clarify the role of DBC.
4)Commercial speech is protected under the First Amendment, but
with a different standard of protection. Generally speaking,
under a 1980 Supreme Court case, Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York, states may
prohibit false, deceptive, or misleading advertising, but only
if the state shows that the restriction directly and
materially advances a substantial state interest in a manner
no more extensive than necessary to serve that interest.
Would prohibiting a dentist from advertising that he or she is
a "specialist" or who "specializes" in an area of practice
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unless he or she meets the standards contained in this bill
pass a court test?
Analysis Prepared by : Vincent D. Marchand / HEALTH / (916)
319-2097
FN: 0004132