California Law Restricting Use of Term ‘Board-Certified’ in Advertisements Held Constitutional

S. Diane Turpin, J.D.
Associate Director of Governmental Affairs


In American Academy of Pain Management v. Joseph,¹ the U.S. Court of Appeals for the Ninth Circuit ruled that a California law² allowing physicians to advertise that they are “board-certified” only if the certifying organization meets certain state standards does not violate the First Amendment. The statute provides that the certifying organization must be 1) a member board of the American Board of Medical Specialties (ABMS), 2) have requirements equivalent to those of ABMS as determined by the Medical Board of California or 3) have a postgraduate training program approved by the Accreditation Council for Graduate Medical Education that provides “complete training” in the designated specialty. The statute authorized the California medical board to adopt regulations to specify 1) criteria used to determine if a certifying organization possesses requirements equivalent to those of the ABMS and 2) procedures governing applications for an equivalency determination.

The American Academy of Pain Management, headquartered in Sonora, California, filed an application with the medical board for recognition of equivalency status. Prior to the medical board’s decision, the Academy and two of its members filed suit in federal district court alleging that the statute violated their First Amendment right of free speech and seeking a temporary restraining order barring enforcement of the provision. The medical board denied the Academy’s request, finding that it “fell far short of equivalency.”

The court held that the speech in question is commercial speech because it regulates the advertising of medical services to solicit business. As such the court analyzed the law under a four-part test that requires an analysis of whether the speech is misleading, whether the asserted government interest is substantial, whether the regulation advances that interest and whether the regulation is more extensive than necessary to serve that interest.

The court held that state law explicitly defines the term “board-certification” and that the use of the term in advertising by an organization or individuals who do not meet the statutory requirements is “inherently misleading” and as such is not protected speech. The court added that even if the speech is only potentially misleading, it would not change the result under the remaining three factors. The court held that the government’s interest in protecting consumers from misleading advertising was substantial, that the statute directly advanced that interest and that the advertising restriction is not more extensive than necessary to serve the government’s interest in protecting consumers.

This decision turns upon the constitutionality of a specific California statute, but the court’s decision may interest other states in taking a more proactive approach with respect to limitations on the advertising for physician services.

Montana Opts Out
In a decision that appears internally inconsistent, a Montana trial court has ruled that the Board of Nursing did not have the statutory authority to promulgate rules relating to nurse anesthetists’ scope of practice; however, the board’s action in promulgating rules that define the scope of practice as “independent and/or collaborative” was proper.

The decision comes as a result of the Montana Society of Anesthesiologists (MSA) motion for summary judgment in its lawsuit against the Board of Nursing for improperly expanding the nurse anesthetists’ scope of practice and violating the Montana Administrative Procedures Act in doing so.

Following the court’s opinion, Governor Judy Martz sent a letter to the Centers for Medicare & Medicaid Services opting the state out of the federal requirement for physician supervision of nurse anesthetists. Montana becomes the 12th state to opt out. MSA is considering an appeal of the court’s decision.

Florida Suspends Certain Office-Based Surgical Procedures
The Florida Board of Medicine adopted an emergency rule prohibiting liposuction and abdominoplasty procedures within 14 days of each other on the same patient in office surgery settings. The emergency rule is in effect for 90 days (until May 10, 2004). The board’s action came as a result of adverse incident reports from four of the eight most recent office surgery deaths between August 2002 and January 2004, reflecting deaths of patients who had both procedures on the same day in the office surgery setting. The board will determine whether any permanent regulatory action is needed regarding these procedures.

The emergency rule also requires physicians who perform Level II and Level III procedures to submit copies of the surgical logs for procedures performed from June 1, 2002, through January 31, 2004, by May 10, 2004.

References:

1. 2004 U.S. App. LEXIS 3.

2. California Business and Professions Code Section 651(h)(5)(B).