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Date: January 20, 2025
Prepared by: Simone Armour and James McGovern

The Ohio State Dental Board (OSDB) recently convened to discuss proposed changes to its specialty advertising rules in light of ongoing litigation. The American Academy of Implant Dentistry v. Kamdar case has challenged the OSDB’s current regulations, alleging they violate constitutional protections for free speech, due process, and equal protection. Thus, the OSDB is at a critical juncture in reevaluating its specialty advertising rules in a manner that could reshape the intersection of public safety, professional integrity, and free speech.

Current Rules on Specialty Advertising

Under the OSDB’s existing rules, governed by O.A.C. 4715-5-04 and 4715-13-05, dentists must adhere to the following to advertise as specialists:

1. Accreditation: Completion of a post-doctoral program accredited by the Commission on Dental Accreditation (CODA).
2. Recognized Specialties: Only American Dental Association (ADA)-recognized specialties, such as orthodontics and oral surgery, qualify.
3. Use of Titles: Terms like “specialist” or specific specialty titles are limited to those meeting these requirements.
4. General Dentists: General dentists may advertise services but must clearly identify as such.

Violations are subject to disciplinary action by the OSDB.

Proposed Changes

The OSDB’s new proposal, focused on revisions to O.A.C. 4715-13-05, would allow any dentist to advertise as a specialist, provided they disclose the name of the certifying board or organization in their advertisement. This shift aims to address inclusivity but has sparked debate over its implications for public safety and clarity.

Stakeholder Perspectives

• American Academy of Implant Dentistry (AAID): Supports the changes, arguing they protect First Amendment rights and recognize alternative accreditation pathways.
• American Association of Orthodontists (AAO): Opposes the revisions, emphasizing the need for CODA accreditation to maintain educational and public safety standards.
• Ohio Dental Association (ODA): Advocates for retaining the 2018 rules, citing concerns about misleading patients and diluted standards.
• Other Specialty Boards: Question the OSDB’s capacity to oversee non-CODA programs effectively.

Comparisons and Precedents

Ohio’s proposed revisions draw inspiration from North Carolina’s Rule 21 NCAC 16P .0105, which mandates disclosure of certifying boards in advertising. Stakeholders note that while North Carolina’s rules have succeeded without complaints since 2019, Ohio’s language is seen as less definitive, introducing potential ambiguities.

Additionally, parallels were drawn to moderate sedation laws in Ohio, which face similar critiques of vague criteria and inconsistent enforcement. These concerns underline the broader need for regulatory clarity.

Next Steps

The OSDB faces a complex challenge: addressing litigation concerns while maintaining public trust and ensuring regulatory clarity.

Stakeholders have until February 1, 2025, to submit further comments, but time is of the essence.

If consensus isn’t reached, legal fallout could invalidate the OSDB’s specialty advertising rules, leaving both practitioners and patients in regulatory limbo. The OSDB risks judicial intervention, potentially nullifying existing rules.  As the OSDB grapples with these complex issues, its decisions will serve as a benchmark for balancing regulatory clarity, professional inclusivity, and public protection in dentistry, and perhaps impact on how other professional licensing boards in Ohio regulate the advertising of their respective licensees.

We will continue to track and report upon this issue.  If you have questions, please do not hesitate to contact a Graff & McGovern attorney at 614-228-5800.