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Board’s advertising restrictions may be challenged, court finds

A dentist advertising himself as a specialist while continuing to practice as a general dentist was facing a credible threat from a dental board's regulations and could challenge them, the U.S. 6th Circuit Court of Appeals held August 27 (Kiser v. Reitz).

In August 2009, the board sent Russell Kiser a letter that warned Kiser was practicing “outside the scope” of his specialty of endodontics, violating regulations, according to the opinion. In 2012, Kiser asked the board to review and approve proposed advertising for his office. Included were the terms “endodontist” and “general dentist.”

The board, however, suggested that Kiser was still violating the regulation concerning dentist advertising, which requires that if a dentist decides to advertise as a specialist in a credible field, he or she cannot practice or advertise services outside the scope of that specialty.

Kiser filed suit claiming that the Ohio Administrative Code was in violation of his First Amendment rights, causing injury, since the code limited him from advertising truthfully all the services for which he’s licensed. The district court dismissed Kiser’s complaint for lack of subject-matter jurisdiction.

The Sixth Circuit reversed the district court’s dismissal of Kiser’s suit against the dental board. Judge Karen Moore wrote that the board’s warnings constitu-ted “a credible threat” that Kiser would be subject to an enforcement action. These threats were serious enough to cause injury, Judge Moore said.

“Kiser has alleged facts demonstrating that he has suffered an injury in fact because he faces a credible threat that the regulations will be enforced against him in violation of his First Amendment right to engage in commercial speech.”

“An administrative action carries significant consequences for Kiser: the board is empowered to suspend or revoke Kiser’s license to practice dentistry in the state of Ohio, and thus Kiser faces a threat to his livelihood should he persist in flouting the board’s regulations,” Moore writes.

The Sixth Circuit’s ruling means that Kiser has standing to sue the Ohio dental board in federal court over alleged First Amendment violations that restrict him from advertising his profession as an endodontist, while concurrently practicing as a dentist.