Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S. ( 2016 )


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  •                                                                              Jan 20 2016, 6:37 am
    
    
    
    
    ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
    Gregory F. Zoeller                                         James W. Brauer
    Attorney General                                           Katz & Korin, P.C.
                                                               Indianapolis, Indiana
    Frances Barrow
    Deputy Attorney General                                    Frank R. Recker
    Indianapolis, Indiana                                      Frank R. Recker & Associates
                                                               Cincinnati, Ohio
    
    
                                                IN THE
        COURT OF APPEALS OF INDIANA
    
    Indiana Professional Licensing                             January 20, 2016
    Agency and Indiana State Board                             Court of Appeals Case No.
    of Dentistry,                                              49A02-1504-MI-197
    Appellant-Respondents,                                     Appeal from the Marion Superior
                                                               Court
            v.                                                 The Honorable Gary L. Miller
                                                               Trial Court Cause No.
    Irfan A. Atcha, D.D.S.,                                    49D03-1312-MI-44739
    Appellee-Petitioner
    
    
    
    Vaidik, Chief Judge.
    
    
    
    
    Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016                    Page 1 of 19
                                               Case Summary
    [1]   Dr. Atcha, a Dyer dentist, began an extensive advertising campaign marketing
    
          his expertise in modern implant and sedation techniques. Among other claims,
    
          he touted that his procedures are “too advanced for most dentists, oral
    
          surgeons, and periodontists.” He also promoted himself as the “only licensed
    
          and certified advanced trained dentist to perform the IV sedation and dental
    
          care on his patients.” Undoubtedly to encourage potential clients to receive
    
          dental implants from him, he used pictures to show that dentures combined
    
          with dental adhesives are poisonous.
    
    
    [2]   After a number of complaints from fellow dentists, the Indiana Professional
    
          Licensing Agency and the Indiana State Board of Dentistry found when
    
          advertising his practice Dr. Atcha made false and misleading claims of (1)
    
          dental specialty and (2) better materials or superior services. He also was found
    
          to have violated regulations compelling him to disclose every dentist within his
    
          practice in his advertisements. Upon his appeal to the Marion Superior Court,
    
          the court found all three dental advertising regulations unconstitutional. We
    
          reverse in part and affirm in part.
    
    [3]   Although protected by the First Amendment, commercial speech receives less
    
          protection than other forms of expression. In particular, the State retains the
    
          authority to prohibit or restrict false and misleading commercial speech. Here,
    
          the State properly restricted Atcha’s false and misleading claims implying he
    
          had a particular dental specialty and could provide better materials or superior
    
    
          Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 2 of 19
          service than other dentists. However, we conclude that the State may not
    
          compel a dentist to list on his advertisements every dentist in his practice.
    
          Finding no reasonable relationship between compelling the disclosure of all
    
          associated dentists and preventing deception, we agree with the trial court that
    
          the regulation does not satisfy First Amendment protections for commercial
    
          speech. Therefore, we affirm the trial court in part and reverse in part.
    
    
                                 Facts and Procedural History
    [4]   Dr. Irfan Atcha has held a license to practice dentistry in Illinois since 1996.
    
          He obtained a dentistry license for Indiana in 2006, purchased an existing
    
          practice, and began practicing dentistry in Dyer, Indiana. Shortly after taking
    
          over the practice in Dyer, Dr. Atcha began an extensive advertising campaign
    
          that included radio, television, billboards, phone books, newspapers, direct
    
          mailing, social magazines, and online media.
    
    
    [5]   The gist of Dr. Atcha’s voluminous advertising is that he uses modern implant
    
          and sedation techniques, which might be particularly helpful to consumers who
    
          need prosthetic teeth. However, some of his advertising claims went beyond
    
          that simple message. Dr. Atcha implied that he is able to perform implant
    
          procedures that are “too advanced for most dentists, oral surgeons and
    
          periodontists[.]” Appellant’s App. p. 189. He claimed his cosmetic dentures
    
          “consistently fool other dentists[.]” Id. at 186. Dr. Atcha implied that there is a
    
          lack of accountability and responsibility in corporate dental implant centers. Id.
    
          at 189. He claimed that oral surgeons, periodontists, and prosthodontists
    
          Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 3 of 19
          “make you feel like they’re experts in dental implants, but they can do more
    
          harm than good.” Id. at 255. In the same advertisement, Dr. Atcha claimed
    
          that “[t]he specialist only worries about what he needs to do and has no
    
          knowledge or understanding about the restorative end (tooth placement) of the
    
          procedure, so the restorative dentist’s hands are tied.” Id. He claimed that
    
          “general dentists typically have little or no knowledge of the sedation process.”
    
          Id. at 191. Dr. Atcha advertised that he is the “only licensed and certified
    
          advanced trained dentist to perform the IV sedation and the dental care on his
    
          patients.” Id. Finally, under the heading “NO ONE should die with their teeth
    
          in a glass!” Dr. Atcha used pictures to indicate that dentures combined with
    
          denture adhesives are poison. Id. at 252.
    
    
    [6]   Dr. Atcha’s advertisements drew complaints from other dentists and, as a
    
          result, the State filed a complaint with the Indiana State Board of Dentistry
    
          containing four counts:
    
                  Count I: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
                  Respondent has knowingly violated 828 IAC 1-l-l4(a) and (b) in
                  that Respondent has failed to list all dentists in his practice on his
                  advertisements.
    
    
                  Count II: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
                  Respondent has knowingly violated 828 IAC l-l-18(k) in that
                  Respondent has used words that express or imply specialization
                  in implant dentistry, that do not state the services are being
                  provided by a general dentist, and are false or misleading.
    
    
                  Count III: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
                  Respondent has knowingly violated 828 IAC 1-1-18(m) in that
          Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 4 of 19
                  Respondent has advertised superior services, better materials, or
                  more skillful care available in his office in a deceptive manner.
    
    
                  Count IV: Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
                  Respondent has knowingly violated 828 IAC 1-1-18(n) in that
                  Respondent has advertised guarantees or warranties that are
                  deceptive and utilized testimonials or endorsements in a
                  misleading manner.
    
    
    [7]   Dr. Atcha and the State reached a settlement agreement and presented it to the
    
          Board on February 1, 2013. But the Board rejected the proposed settlement
    
          after a hearing.
    
    [8]   Thereafter, the Board held another hearing on October 4, 2013, and issued its
    
          findings of fact, ultimate findings of fact, conclusions of law, and order on
    
          November 15, 2013. The Board ultimately found that Dr. Atcha knowingly
    
          violated three regulations: 1) 828 IAC l-l-14(a) and (b) in that he failed to list all
    
          dentists in his practice on his advertisements; 2) 828 IAC 1-1-18(k) in that he
    
          used words that express or imply specialization in implant dentistry, that do not
    
          state the services are being provided by a general dentist, and are false or
    
          misleading; 3) 828 IAC 1-1-18(m) in that he has advertised superior services,
    
          better materials, or more skillful care available in his office in a deceptive
    
          manner, and that Section 18(m) would not have been violated if the
    
          advertisements were not in fact deceptive.
    
    [9]   The regulations that the Board found Dr. Atcha violated read, in pertinent part,
    
          as follows:
    
    
          Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 5 of 19
                   1) 828 IAC 1-1-14:
                          (a) Any advertisement for dental treatment shall include
                          the names of the licensed dentists associated with such
                          treatment or treatment facility or employed by the
                          treatment facility or another dentist.
    
    
                            (b) Advertisements listed in telephone directories, or other
                            such advertisements which are listed once a year, must
                            include the names of the licensed dentists associated with
                            the treatment or treatment facility or employed by the
                            treatment facility or another dentist as of the date the
                            contract is made to run the advertisement.
    
    
                   2) 828 IAC 1-1-18(k):
                   A dentist who is not considered a specialist by this section and
                   who wishes to announce the services available in his or her
                   practice may announce the availability of those services so long
                   as he or she avoids any communications that express or imply
                   specialization. The dentist shall also state that the services are
                   being provided by a general dentist. No dentist shall announce
                   available services in any way that would be false or misleading in
                   any material respect.
    
    
                   3) 828 IAC 1-1-18(m):
                   An advertisement indicating that superior services, better
                   materials, or more skillful care are available in a particular office
                   or by a group of practitioners may be deceptive.
    
    
    [10]   Dr. Atcha was subject to disciplinary sanctions for the three regulatory
    
           violations pursuant to Indiana Code section 25-1-9-4(a)(3). The Board ordered,
    
           among other things, Atcha’s license placed on indefinite probation and a $3000
    
           fine ($1000 per violation).
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016      Page 6 of 19
    [11]   Dr. Atcha appealed to the trial court, contending, among other allegations, that
    
           the Board’s Order violated his right to free speech guaranteed under the United
    
           States and Indiana Constitutions. The trial court reached only the First
    
           Amendment question. It found that the regulations violated Dr. Atcha’s First
    
           Amendment rights and reversed the Board’s Order. The State now appeals.
    
    
                                       Discussion and Decision
    [12]   The legislature has granted courts limited power to review the action of state
    
           government agencies taken pursuant to the Administrative Orders and
    
           Procedures Act (“AOPA”). See Ind. Educ. Employment Relations Bd. v. Nettle
    
           Creek Classroom Teachers Ass’n, 
    26 N.E.3d 47
    , 53 (Ind. Ct. App. 2015); State Bd.
    
           of Registration for Prof’l Eng’rs v. Eberenz, 
    723 N.E.2d 422
    , 430 (Ind. 2000). Under
    
           the AOPA, a court may only set aside an agency action that is:
    
                   (1) arbitrary, capricious, an abuse of discretion, or otherwise not
                   in accordance with law;
                   (2) contrary to constitutional right, power, privilege, or
                   immunity;
                   (3) in excess of statutory jurisdiction, authority, or limitations, or
                   short of statutory right;
                   (4) without observance of procedure required by law; or
                   (5) unsupported by substantial evidence.
    
           Ind. Code § 4-21.5-5-14(d).
    
    [13]   Appellate courts stand in the same position as the trial court when reviewing an
    
           administrative agency’s decision. Amoco Oil Co. v. Comm’r of Labor, 
    726 N.E.2d 869
    , 872 (Ind. Ct. App. 2000). In reviewing an administrative agency’s
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 7 of 19
           decision, this Court analyzes the record as a whole to determine whether the
    
           administrative findings are supported by substantial evidence. Whirlpool Corp. v.
    
           Vanderburgh Cnty.-City of Evansville Human Relations Comm’n, 
    875 N.E.2d 751
    ,
    
           759 (Ind. Ct. App. 2007). This Court may not substitute its judgment on factual
    
           matters for that of the agency, and we are bound by the agency’s findings of fact
    
           if the findings are supported by substantial evidence. Id. Moreover, we review
    
           the record in the light most favorable to the administrative proceedings and are
    
           prohibited from reweighing the evidence or judging the credibility of witnesses.
    
           Amoco, 726 N.E.2d at 873. However, no such deference is accorded an
    
           agency’s conclusions of law, as the law is the province of the judiciary. Id.
    
    
    [14]   The State raises three issues on appeal: (1) whether Dr. Atcha’s advertisements
    
           were false or misleading and, therefore, not entitled to First Amendment
    
           protection; (2) whether the regulations restricting advertisement of dental
    
           specialties and superior materials or services are constitutional restrictions on
    
           speech; and (3) whether the regulation requiring dentists to include the names
    
           of all dentists associated with their practice in every advertisement is
    
           constitutional compelled speech.
    
    [15]   At the outset, the First Amendment, as applied to the States through the
    
           Fourteenth Amendment, protects commercial speech from unwarranted
    
           governmental regulation. Wallace v. Brown Cnty. Area Plan Comm’n, 
    689 N.E.2d 491
    , 493 (Ind. Ct. App. 1998). The protection for commercial speech is based
    
           on the informational function of advertising. See Va. State Bd. of Pharmacy v.
    
           Virginia Citizens Consumer Council, Inc., 
    425 U.S. 748
    , 765 (1976). In a
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 8 of 19
           predominantly free-enterprise economy, resources are allocated through
    
           numerous private economic decisions. Id. “It is a matter of public interest that
    
           those decisions, in the aggregate, be intelligent and well informed. To this end,
    
           the free flow of commercial information is indispensable.” Id.
    
    
    [16]   However, the Constitution “affords a lesser protection to commercial speech
    
           than to other constitutionally guaranteed expression.” United States v. Edge
    
           Broad. Co., 
    509 U.S. 418
    , 426 (1993). Moreover, regulations that compel
    
           disclosures in advertising receive less protection than regulations that restrict or
    
           prohibit commercial speech. See Milavetz, Gallop & Milavetz, P.A. v. United States,
    
           
    559 U.S. 229
    , 249-50 (2010). Here, the Board found that Dr. Atcha violated
    
           828 IAC 1-1-18(k) and (m), regulations which primarily restrict speech, and 828
    
           IAC 1-1-14, which compels speech. We divide our analysis into two
    
           categories—regulations restricting the content of advertising and regulations
    
           compelling disclosure in advertising.
    
    
                        I. Restrictions on Dentists’ Advertising
    [17]   Both parties agree that the appropriate test for whether restrictions on
    
           commercial speech comport with the First Amendment is the test outlined in
    
           Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 
    447 U.S. 557
     (1980). Central Hudson sets forth a four-part test that begins by assessing
    
           whether the expression being restricted is entitled to First Amendment
    
           protection. Id. 566. If the expression is entitled to protection, the regulation of
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 9 of 19
           that expression must be narrowly tailored to directly advance a substantial
    
           government interest. Id.
    
    
                   At the outset, we must determine whether the expression is
                   protected by the First Amendment. For commercial speech to
                   come within that provision, it at least must concern lawful
                   activity and not be misleading. Next, we ask whether the asserted
                   governmental interest is substantial. If both inquiries yield
                   positive answers, we must determine whether the regulation
                   directly advances the governmental interest asserted, and
                   whether it is not more extensive than is necessary to serve that
                   interest.
    
    
    [18]   Id. If the statements are false and misleading, the remainder of the four-part
    
           analysis of the Central Hudson test need not be completed. This is because only
    
           truthful advertising related to lawful activities is entitled to First Amendment
    
           protection. In re R.M.J., 
    455 U.S. 191
    , 203 (1982).
    
    
    [19]   The State first argues that Dr. Atcha’s advertising is false and misleading and,
    
           therefore, not entitled to any constitutional protection. Alternatively, the State
    
           contends that regulations 828 IAC 1-1-18(k) and (m) meet the standards set out
    
           in Central Hudson, and that Dr. Atcha’s advertisements violate the regulations.
    
           Dr. Atcha, in addition to denying that his advertising is false or misleading,
    
           contends that the two regulations violate the First Amendment by failing the
    
           remaining four-part Central Hudson test. Additionally, Dr. Atcha argues that the
    
           regulations are vague and overbroad. We will address Section 18(k) and
    
           Section 18(m) separately, beginning by applying the Central Hudson standard to
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 10 of 19
           each regulation as written, then to the facts of this case, and, finally, examining
    
           Dr. Atcha’s overbreadth and vagueness challenges.
    
    
                                     False or Misleading Claims of Specialty
    
    [20]   We first apply the Central Hudson standard to Section 18(k), which provides in
    
           part that “No dentist shall announce available services in any way that would
    
           be false or misleading in any material respect.” We read the plain text of the
    
           regulation as prohibiting only those advertisements which announce services in
    
           a way that is materially false or misleading.
    
    [21]   Because we read Section 18(k) to prohibit only false or misleading statements,
    
           the regulation affects only expression that does not have First Amendment
    
           protection. States retain the ability to prohibit misleading advertising entirely.
    
           In re R.M.J., 455 U.S. at 203. “[T]here can be no constitutional objection to the
    
           suppression of commercial messages that do not accurately inform the public
    
           about lawful activity.” Central Hudson, 447 U.S. at 563. Because false and
    
           misleading statements are not entitled to First Amendment protection, we need
    
           not analyze the remaining prongs of the Central Hudson test. The regulation is
    
           constitutionally permissible as written.
    
    [22]   Turning to the application of Section 18(k) to Dr. Atcha’s advertisements, the
    
           State argues that there is substantial evidence that Dr. Atcha announced his
    
           services in a way that was false or misleading. We agree.
    
    [23]   The record contains examples from Dr. Atcha’s advertisements that claim other
    
           dentists are not competent to perform the services that the State licenses them to
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 11 of 19
           perform. Dr. Atcha claimed that “general dentists typically have little or no
    
           knowledge of the sedation process.” Appellant’s App. p. 191. But the State
    
           issues sedation permits to general dentists—indicating that general dentists do,
    
           in fact, have sufficient knowledge of the sedation process. Id. at 22. Dr. Atcha
    
           claimed that oral surgeons, periodontists, and prosthodontists may “do more
    
           harm than good”; that specialists have “no knowledge or understanding about
    
           the restorative end (tooth placement) of the [implant] procedure”; and that
    
           certain implant procedures are “too advanced for most dentists, oral surgeons
    
           and periodontists.” Id. at 255, 189. Again, the tasks described by Dr. Atcha are
    
           tasks that dentists are licensed by the State to perform. Moreover, oral
    
           surgeons, prosthodontists, and periodontists are required to obtain advanced
    
           certifications from institutions accredited by the American Dental Association.
    
           It is misleading to suggest that other general dentists and dental specialists are
    
           incapable of competently performing an implant procedure.
    
    [24]   Dr. Atcha argues that the State may not rely on the naked assertion that claims
    
           of specialty are inherently misleading. However, Dr. Atcha did not merely
    
           assert his own expertise; he announced his services in conjunction with the
    
           implication that other dentists, who hold the same license he holds and provide
    
           the same services he provides, are not competent. General claims that duly
    
           licensed professionals, in a well-regulated profession, are incompetent to
    
           perform the very procedures for which the State licenses them are, at least,
    
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 12 of 19
           misleading.1 Therefore, we conclude that there is substantial evidence to
    
           support the Board finding that Dr. Atcha violated Section 18(k) by falsely or
    
           misleadingly announced his available services.2
    
    
    [25]   Dr. Atcha responds that Section 18(k) is overbroad and vague. Again, because
    
           the regulation prohibits only commercial speech that is false or misleading, it
    
           implicates no constitutionally protected conduct. His overbreadth challenge
    
           fails. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
    ,
    
           494-95 (1982).
    
    [26]   Turning to Dr. Atcha’s vagueness challenge, in general, there are two
    
           independent causes to invalidate a statute for vagueness: (1) the statute does not
    
           provide notice enabling ordinary people to understand the conduct that it
    
           prohibits; and (2) the statute potentially authorizes or encourages arbitrary or
    
           discriminatory enforcement. Tiplick v. State, No. 49S04-1505-CR-2872, 
    2015 WL 5837690
    , at *2 (Ind. Oct. 7, 2015). To determine whether a regulation is
    
           vague, the Court begins by examining the facts in the current case because “a
    
           plaintiff who engages in some conduct that is clearly proscribed cannot
    
    
    
    
           1
            See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 
    471 U.S. 626
    , 652-53 (1985) (“When the
           possibility of deception is as self-evident as it is in this case, we need not require the State to conduct a survey
           of the public before it may determine that the advertisement had a tendency to mislead.”) (internal quotation
           omitted).
           2
             We need not explore whether claims of expertise or specialty, without more, would have been sufficient to
           violate the regulation. Additionally, having already found substantial evidence that Section 18(k) is violated,
           we do not address the portion of the regulation which compels disclosure that the advertiser is a general
           dentist. The Board also found Dr. Atcha violated that provision. The mandatory disclosure would be subject
           to the analysis in Part II, infra.
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016                            Page 13 of 19
           complain of the vagueness of the law as applied to the conduct of others.” Id.
    
           Finally, the Court examines facial vagueness by determining whether the law is
    
           vague in all of its applications where, as here, the regulation does not implicate
    
           constitutionally protected conduct. Flipside, 455 U.S. at 494-95.
    
    
    [27]   As applied to Dr. Atcha, Section 18(k) is not impermissibly vague. The
    
           ordinary person would understand that advertising claims such as oral
    
           surgeons, periodontists, and prosthodontists may “do more harm than good”
    
           and that “general dentists typically have little or no knowledge of the sedation
    
           process” are false and misleading and therefore violate the regulation.
    
    [28]   Finally, to succeed in a claim that the regulation is vague on its face, Dr. Atcha
    
           “must demonstrate that the law is impermissibly vague in all of its
    
           applications.” Id. at 497. Proof of vagueness in some applications is
    
           insufficient to void the regulation. Id. at 495. As we have determined that the
    
           regulation is not vague as to Dr. Atcha’s advertising, he has not met his burden.
    
           His claim of facial vagueness also fails.
    
    
                                Claims of Superior Services or Better Materials
    
    [29]   Next, the Board found that Dr. Atcha violated 828 IAC 1-1-18(m). Section
    
           18(m) provides that “[a]n advertisement indicating that superior services, better
    
           materials, or more skillful care are available in a particular office or by a group
    
           of practitioners may be deceptive.” The Board made clear in its Ultimate
    
           Findings of Fact that this section “would not have been violated if the
    
           advertisements were not in fact deceptive.” Appellant’s App. p. 26. We
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 14 of 19
           understand the Board’s construction of the regulation to be that it bans only
    
           advertisements which claim better services, care, or materials in a way that is
    
           deceptive. An interpretation of regulations by the administrative agency
    
           charged with enforcing those regulations is entitled to great weight. “Indeed,
    
           when a court determines that an administrative agency’s interpretation is
    
           reasonable, it should terminate its analysis[.]” Indiana Dept. of Environmental
    
           Management v. Steel Dynamics, Inc., 
    894 N.E.2d 271
    , 274 (Ind. Ct. App. 2008).
    
           Therefore, we adopt the Board’s construction of Section 18(m).
    
    [30]   As explained in the analysis of Section 18(k), the State may bar any advertising
    
           claim that is deceptive. Such claims have no First Amendment protection, and
    
           we need not go further with the Central Hudson analysis. See In re Keller, 
    792 N.E.2d 865
    , 869 (Ind. 2003) (“[T]he advertisements are more likely to deceive
    
           the public than inform it and thus are not protected under the First
    
           Amendment’s commercial speech doctrine”). Section 18(m) is a
    
           constitutionally permissible restriction on commercial speech.
    
    [31]   In applying the regulation to Dr. Atcha, the Board found his advertisement with
    
           pictures suggesting dentures and dental adhesives are poisonous to be deceptive.
    
           We agree. The State may prohibit advertising claims that dentures are
    
           poisonous where the claim is being made by a dentist for the purpose of selling
    
           implants.
    
    [32]   Dr. Atcha also claims that Section 18(m) is overbroad and vague. His
    
           overbreadth claim fails for the same reasons it failed with respect to Section
    
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 15 of 19
           18(k) above. Specifically, the Board construed the regulation to reach only
    
           deceptive commercial speech, which has no First Amendment protection.
    
           Therefore, the claim that the regulation is overbroad fails. See Flipside, 455 U.S.
    
           at 494-95.
    
    [33]   His claim of vagueness also fails. An ordinary person would understand that
    
           the picture indicating that dentures and dental adhesives are poison is
    
           deceptive. It appears to be intended to persuade people with working dentures
    
           to undergo an implant procedure which may not be necessary. As with Section
    
           18(k) above, Dr. Atcha clearly violated the proscriptions of Section 18(m) by
    
           claiming better services or materials in a deceptive way.
    
    [34]   Finally, addressing whether Section 18(m) is vague on its face, we begin by
    
           repeating that it does not implicate constitutionally protected conduct under the
    
           Board’s construction. Dr. Atcha has not “demonstrate[d] that the law is
    
           impermissibly vague in all of its applications.” Id. at 497. Therefore, his claim
    
           of vagueness fails.
    
    
    [35]   In summary, both Sections 18(k) and 18(m) are constitutional restrictions on
    
           dental advertising and there is substantial evidence supporting the Board’s
    
           Ultimate Findings of Fact that Dr. Atcha violated 828 IAC 1-1-18(k) and (m).
    
           Therefore, we reverse the trial court’s decision with respect to these two
    
           regulations.
    
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 16 of 19
             II. Compelled Disclosure in Dentists’ Advertising
    [36]   Next, the State argues that the trial court erred by finding that 828 IAC 1-1-14
    
           violates the First Amendment. 828 IAC 1-1-14 compels dental practices to list
    
           every dentist in every advertisement. The analysis of compelled commercial
    
           speech differs from the analysis of prohibited speech because of the material
    
           difference between restricting what can be said and requiring advertisers “to
    
           provide somewhat more information than they might otherwise be inclined to
    
           present.” Zauderer, 471 U.S. at 650. Unjustified or unduly burdensome
    
           disclosure requirements might offend the First Amendment by chilling
    
           protected commercial speech. Id. at 651. However, “an advertiser’s rights are
    
           adequately protected as long as disclosure requirements are reasonably related
    
           to the State’s interest in preventing deception of consumers.” Id.
    
    
    [37]   The State relies on Zauderer in support of its position that it may compel a
    
           dental practice to disclose all of the dentists it employs in every advertisement.
    
           In Zauderer, however, the issue was a lawyer’s advertisement that said “[i]f there
    
           is no recovery, no legal fees are owed by our clients.” Id. at 631. Zauderer’s
    
           advertisement did not include a compulsory disclosure explaining how the
    
           contingency fee would be calculated, or notify consumers that they would still
    
           be liable for any costs incurred. Id. at 633. “[T]he advertisement would suggest
    
           that employing appellant would be a no-lose proposition in that his
    
           representation in a losing cause would come entirely free of charge.” Id. at 652.
    
           The Supreme Court found it reasonable to require disclosure of potential
    
           liability for costs in contingent-fee advertisements in light of the “self-evident”
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 17 of 19
           potential for deception—very few non-lawyers would be aware of the
    
           distinction between fees and costs. Id. at 653.
    
    
    [38]   Here, the State asserts that a consumer might call Dr. Atcha’s office and expect
    
           to make an appointment with Dr. Atcha, but instead be given an appointment
    
           with another dentist, who may not have the same credentials as Dr. Atcha.
    
           This is distinctly different than the concerns over hidden costs that justified the
    
           compulsory disclosures in Zauderer. A potential client will learn that he or she
    
           has an appointment with a different dentist before any costs are incurred. We
    
           do not see a similar, “self-evident” potential for deception in this case.3
    
    [39]   Without an adequate justification for the compulsory listing of all dentists in
    
           advertisements, the State’s additional argument that it is not unduly
    
           burdensome for Dr. Atcha to list the other dentists in his practice is unavailing.
    
           Finding no justification for the compulsory listing of all dentists in the record,
    
           we find 828 IAC 1-1-14 unconstitutional.
    
    [40]   We, therefore, reverse the trial court’s decision with respect to 828 IAC 1-1-
    
           18(k) and (m), affirm the trial court’s decision with respect to 828 IAC 1-1-14,
    
           and remand to the Board for reassessment of the penalty in light of this
    
           decision.
    
    
    
    
           3
            Likewise, requiring a law firm to list every attorney on every advertisement would be unjustified and
           unduly burdensome.
    
           Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016                      Page 18 of 19
    Robb, J., and Pyle, J., concur.
    
    
    
    
    Court of Appeals of Indiana | Opinion 49A02-1504-MI-197 | January 20, 2016   Page 19 of 19