State Regulation of Dental Advertisements
By Debra Gray King, DDS, FAACD and Daniel R, King, JD, CPA

This article provides a general summary of the types of laws and regulations that restrict how dental services may be advertised. High quality marketing is an integral part of a dental practice's strategy to brand its services in the markets it serves. It is very important to note, however, the myriad of different state dental board regulations that control the advertising of dental services. Each state has its own unique set of regulations governing dental advertising. Some of the regulations range from strange to bizarre, from unduly burdensome to unconstitutional restraints of free speech. Some seem reasonable on their face, but as enforced are unreasonable.

Marketing materials (whether brochures, television, print, radio, signage, etc.) need to be in compliance with the rules of the jurisdiction where the advertising appears. Otherwise, dentists are at risk for dental board complaints, subsequent legal action, and penalties including fines and injunctions. If a state attempts such action, there may be a variety of defenses available, but the best approach is to try and avoid running afoul of the laws if at all possible. This article is not intended to be exhaustive, and if you are considering advertising, you should check the latest version of the laws and regulations in your state.

1. Prohibition on Claims of Superior Dental Ability. Advertisements may not imply one is offering unusual or superior dental ability. See Alabama Code 34-9-19 (a) and (b). Advertisements cannot use statements such as "quality dentistry," "quality work," "staff of skilled dentists," "skilled employees," or references to uncertain or unlicensed employees. See Alabama Code 34-9-19(d)(1)(b); California Regs. Title 16, 1052 (Advertisements may not make any claims of professional superiority); Florida Stat. 466.019 (Advertisements may not make statements which relate to the quality of dental services provided as compared to other available dental services or laudatory statements about the Dentist.); Georgia Board of Dentistry Rule 150-11-.02; Louisiana Admin. Code Title 46 33;301(E) (Advertisements may not make statements relating to the quality of dental services provided as compared to other available dental services.); Massachusetts Gen. Laws 52A; (Advertisements cannot claim performance of professional services in a superior manner.); Mississippi Code 73-9-29, Mississippi Board of Dentistry Rule 43; New York Comp. Codes R & Regs. Title 8, 29.5; Tennessee Board of Dentistry Rule 0460?2?10(4)(a); 18 Virginia Code 60-20-180(F); Texas Civ. Stat. 4548g.

2. Prohibition on Laudatory Statements Regarding Dentist. Advertisements may not make laudatory statements about the dentist or group of dentists. See Louisiana Admin. Code Title 46 33;301(E); Florida Stat. 466.019 (Advertisements may not make laudatory statements about the Dentist.).

3. Prohibition on Claims of Superior Methods. Advertisements may not include statements claiming superiority of a particular method of treatment. See Alabama Code 34-9-19(b)(8), (b)(9) and (d)(1)(a); Mississippi Code 73-9-29, Mississippi Board of Dentistry Rule 43; New York Comp. Codes R & Regs. Title 8, 29.5; Tennessee Board of Dentistry Rule 0460?2?10(4)(a).

4. Prohibition on Statements That Procedures Are Painless. Virtually all states prohibit advertising a procedure as painless. Texas Civ. Stat. 4548g (advertising to perform any dental work without pain or discomfort to the patient is prohibited); Alabama Stat. 34-9-19.

5. Prohibition on Claims Expressing or Implying Specialty.
No dentist may advertise that he is a specialist or specializes in a certain area unless such dentist is a board certified specialist. Florida Admin. Code 64B5-4.004; Georgia Board of Dentistry Rule 150-11-.02; Louisiana Admin. Code Title 46 33;301(H) (Dentists not qualifying as specialists must advertise their areas of practice in such a way that the public is not mislead.); Massachusetts Gen. Laws Ch. 52A (Advertisements may not contain statements concerning the availability of a specialty service to make the public believe that specialty care is rendered in a dental office by a qualified specialist when such is not the case.); Texas Admin. Code Title 109.107(e) (general dentists who wish to announce the services available in their practices are permitted to announce the availability of those services so long as they avoid any communications that express or imply specialization); 22 18 Virginia Code 60-20-180(F).

6. Restrictions Regarding Use of Credentials. Advertisements shall not claim special professional abilities, attainments, methods or resources. New York Comp. Codes R & Regs. Title 8, 29.5.

7. Prohibition on General Dentists Stating Their Practice "Is Limited to" a Certain Type of Dentistry. Mississippi Code 73-9-29, Mississippi Board of Dentistry Rule 43 (Dentists not licensed as specialists shall not announce that they give special attention to any branch of dentistry.); North Carolina Admin. Code Title 21, 16P.0005 (Unless the dentist is a Board recognized specialist, advertisements may not include the terms "specialist," "specialty," "specializing," or "limited to."); Tennessee Code 63-5-112, Tennessee Board of Dentistry Rule 0460-2-.10(5)(a) (No licensed dentist can claim to the public that he is a specialist, specially qualified in any particular branch of dentistry, or to be giving special attention to any branch or dentistry, or claim to limit the dentist's practice to any branch of dentistry, until the dentist has been board certified as a specialist.).

8. Required Disclaimer as to Ability. No advertisement concerning the routine dental services of a dentist shall be: (1) published unless it contains clearly legible language; (2) broadcast unless it contains clearly audible language; or (3) televised unless it contains both clearly legible and audible language of the following: "No representation is made that the quality of the dental services to be performed is greater than the quality of dental services performed by other Dentists." Alabama Code 34-9-19(c)(5); Mississippi Board of Dentistry Rule 43(G) (A general dentist who lists any services performed must place a disclaimer stating: "Listing of these previously mentioned area(s) of practice does not indicate any certification of expertise therein." The font size must be the same point size as the majority of the letters in the written advertisement. The font size for television or video advertisements must be at least 13 points and run throughout the entire broadcast. Any recording shall contain such statement at a time and in a clearly audible tone and manner to convey the required information to the listener.).

9. Required Disclosures Regarding General Dentists.
Anyone not a specialist must disclose "General Dentistry" or "Family Dentistry" in print larger and/or bolder and noticeably more prominent than any area of practice or service advertised. See Louisiana Admin. Code Title 46 33;301(H); Mississippi Code 73-9-29, Mississippi Board of Dentistry Rule 43 (Advertisements cannot include both "General Dentistry" and "Family Dentists."); 18 Virginia Code 60-20-180(A) (A general dentist who limits his practice shall state in conjunction with his name that he is a general dentist providing only certain services.).

10. Prohibition on Claims of Superior Facilities or Equipment. Advertisements may not make statements of superior facilities at a certain office, such as "scientifically equipped," "latest modern equipment," "modern offices," "modern methods," "modern devices," or any similar expressions. See Alabama Code 34-9-19(d)(2); Georgia Board of Dentistry Rule 150-11-.02; Mississippi Code 73-9-29, Mississippi Board of Dentistry Rule 43; New York Comp. Codes Rules & Regs. Title 8 29.5; Tennessee Board of Dentistry Rule 0460?2?10(4)(a); 18 Virginia Code 60-20-180(F).

11. Prohibition on Claims of Exclusive Access to Supplies or Equipment.
Advertisements may not use statements that a dentist uses a special material, drug formula, medicine, or appliance, that is not available or used by other dentists generally (e.g., "We are the only dental practice in the state to have the Super X machine.). Alabama Code 34-9-19(d)(1)(c).

12. Disclosure of Dentists' Identity and Information. Advertisements shall include the names of all dentists and associates providing such services at the locations advertised. See Alabama Code 34-9-19(b)(5); Florida Admin. Code 64B5-4.002 (Advertisements must identify the responsible dentist by giving the dentist's license number or the dentist's full name with the current address and telephone number.); Georgia Code 4-11-18 (Advertisements used to state or imply that dentistry may or will be performed by anyone at any place in this state are required to list the full name of at least one individual practicing dentistry in such place.); Louisiana Admin. Code Title 46 33; Louisiana Reg. 37:775 (All advertisements must identify the licensed dentist who sponsors or benefits from, and assumes responsibility for the advertisements.); North Carolina Admin. Code Title 21, R. 16P.0002 (All advertisements of dental services must prominently state the name(s) of the dentist(s) whose services are being advertised and shall state if the dentist(s) is a general dentist or specialist.); South Carolina Code 40-15-130 (Every dentist practicing under a trade name and every dentist practicing as an employee of another licensed dentist or a partnership or a professional association must cause his name and licensed area of practice to be conspicuously displayed at the entrance of the place where the practice is conducted.); Tennessee Board of Dentistry Rule 0460-2-.10(4)(p); Virginia Code 54.1-2720.

13. Requirement that the Name of the Dentist Be In Larger Size Type than the Name of Any Procedure Advertised. Anyone not a specialist must disclose "General Dentistry" or "Family Dentistry" in print larger and/or bolder and noticeably more prominent than any area of practice or service advertised. Louisiana Admin. Code Title 46 33;301(H).

14. Prohibition on Use of Testimonials. Advertisements may not include testimonials and endorsements, including character referenced, statements of benefits from dental services received, and expressions of the appreciation for dental services; and statements claiming superiority in the name of a particular method of treatment. Alabama Code 34-9-19(b); Massachusetts Gen. Laws Ch. 52A (Advertisements may not contain a statement of opinion as to the quality of dental services.); Texas Admin. Code Title 22 109.204(7).

15. Prohibition on Use of Celebrity Endorsements.
Advertisements may not include celebrities, celebrity, or personality endorsements. See Alabama Code 34-9-19(b)(8), (b)(9) and (d)(1)(a).

16. Prohibition of Use of Photographs.
Dentists shall not advertise with signs or printed advertisements, or by means of show cases containing the representation of a tooth, teeth, dental restoration of any kind or of whatsoever, design or description or any portion of the human head or neck or photograph of any person. See Massachusetts Gen. Laws Ch. 52A.

17. Prohibition on Use of Personally Identifiable Information of Patient.
Virtually every state has this prohibition. See Georgia Board of Dentistry Rule 150-11-.02; Alabama Code 34-9-19.

18. Prohibition on Demonstrations of Skill or Certain Methods. Advertisements may not include demonstrations of skills or methods of practicing dentistry. See Alabama Code 34-9-19(b)(8), (b)(9) and (d)(1)(a).

19. Prohibition on Promises or Prediction of Certain Results. Advertisements shall not make or set forth any promises, guarantees, representations, or statements that satisfaction or a cure will result from the performance of professional services. See Massachusetts Gen. Laws Ch. 52A; Tennessee Board of Dentistry Rule 0460-2-.10(4)(g) (Advertisements may not use statistical data or other information based on past performances for prediction of future services.); Texas Admin. Code Title 22 109.204(4).

20. Prohibition on Ads or Columns Not Actually Authored By the Advertising Dentist.
In the case of advertisements, "no dentist shall cause their name or picture to appear in connection or association with any publication, statement, article or representation connected with or concerning any aspect of dentistry unless publication, statement, article or presentation is actually authored, written, or prepared by that dentist or unless the publication statement, article or presentation conspicuously names, if other than the dentist, the person or entity who actually authored, wrote or prepared the same, in whole or in part." See Alabama Code 34-9-19(g).

21. Restriction on Use of Trade Names or Corporate Names. Virginia Code 54.1-2720 (Every person practicing dentistry under an authorized firm name, and every person practicing dentistry as an employee of another licensed dentist shall conspicuously display his name at the entrance of the office.); Texas Civ. Stat. Art. 4548e (Any advertisement by the corporation, company, association, or trade name must include prominently the name of at least one dentist practicing under such name.); Texas Civ. Stat. Art. 4549a.

22. Retention of Advertisement Copies. Many states have retention requirements specifying certain periods of time that advertisements must be retained. See Alabama Code 34-9-19(b) (Copies of advertisements must be retained for 1 year after the last date such advertisement was published or broadcast.); Georgia Comp. Board of Dentistry Rule 150-11-.02; Louisiana Reg. 37:775(4) (Copies of advertisements must be retained for 2 years after the last date such advertisement was published or broadcast.); Tennessee Board of Dentistry Rule 0460-2-.10(6)(c) (A copy of advertisements must be retained for 2 years after the last date such advertisement was published or broadcast.); 18 Virginia Code 60-20-180(D) (Copies of advertisements must be retained for 6 months after the last date such advertisement was published or broadcast.);

23. Prohibition of In-Person and Telephone Solicitations.
Virtually every state prohibits in-person and telephone solicitations. See, e.g., Tennessee Board of Dentistry Rule 0460-2-10.

24. Restrictions on Advertisement of Fees and Discounts. Most states heavily regulate the advertisement of fees and discounts. See, e.g., California Admin. Code Title 16, 1050 and 1051; North Carolina Admin. Code Title 21, 16P.0003; Tennessee Board of Dentistry Rule 0460-2-.10; 18 Virginia Code 60-20-180; Alabama Code 34-9-19.