Fifth Circuit Ruling On Specialty Advertising

As many of you are aware, the Fifth Circuit Appellate Court last year ruled in favor of Texas dentists from the American Academy of Implant Dentistry, the American Society of Dentist Anesthesiologists, the American Academy of Oral Medicine, and the American Academy of Orofacial Pain being able to advertise as “specialists” in Texas. Following this ruling, various false authorities online have been moonlighting as attorneys, offering up their interpretation of this resolution, and spreading fear that this opens the door to any dentist being able to call themselves a ‘specialist’ in whatever they choose, such as clear aligner specialists. It seems that they fail to see the irony of someone without any legal training offering a legal opinion on this ruling in particular.

In order to receive proper guidance from a qualified legal specialist, we consulted with Sean Murphy, associate general council at the AAO, for clarification. Naturally, there were substantial differences between the online rumors and what the Fifth Circuit held. First, the 5^th Circuit’s decision only concerns Texas’ specialty advertising regulation (Section 108.54), and there was no ruling made about the constitutionality of any other state’s advertising laws or regulations.  In addition, and as the Court made clear, “Section 108.54 is held to be unconstitutional only as applied to these plaintiffs.”  Opinion, p. 6.  Given the Court’s as-applied finding, the only dentists who can now advertise as specialists in Texas are those doctors from the nine ADA specialty fields (who were already able to advertise as “specialists” under Section 108.54) and those members of the American Academy of Implant Dentistry, the American Society of Dentist Anesthesiologists, the American Academy of Oral Medicine, and the American Academy of Orofacial Pain.  So, does the 5^th Circuit’s narrow ruling allow anyone to call themselves an orthodontist or an aligner specialist after taking a weekend course?  No.  Overall, the idea that this ruling grants permission to any and all general dentists to declare themselves a specialist in whatever they please, especially one of the established ADA specialties, is complete and utter nonsense.

The take home here is that nothing has really changed other than Texas dentists who practice implant dentistry, anesthesia, oral medicine, and orofacial pain tired of the slow pace of specialty recognition by our parent body, the ADA, so they reached out to the courts for help and got it.  The sky is not falling, it is not a new world order and when you wake up tomorrow, most general dentists in Texas should still not be advertising as specialists.