Current through Register Vol. 35, No. 18, September 24, 2024
This rule applies to advertising in all types of media that
is directed to the public. No dentist, dental hygienist, non-dentist owner, or
their representatives shall advertise in any form of communication in a manner
that is misleading, deceptive, or false. The licensee will be responsible for
any third party making such false claims or misleading advertising on their
(licensee's) behalf.
A. Definitions:
(1) for the purposes of this section,
"advertising/advertisement" is:
(a) any
written or printed communication for the purpose of soliciting, describing, or
promoting a dentist's, hygienist's, non-dentist owner's licensed activity,
including, but not limited to, a brochure, letter, pamphlet, newspaper,
directory listing, periodical, business card or other similar
publication;
(b) any radio,
television, internet, computer network or similar airwave or electronic
transmission which solicits or promotes the dental practice'
(c) "advertising" or "advertisement" does not
include any of the following;
(i) any printing
or writing on buildings, uniforms or badges, where the purpose of the writing
is for identification;
(ii) any
printing or writing on memoranda or other communications used in the ordinary
course of business where the sole purpose of the writing is other than the
solicitation or promotion of the dental practice;
(iii) any printing or writing on novelty
objects or dental care products.
(2) "bait advertising" is an alluring but
insincere offer to sell a product or service which the advertiser in truth does
not intend or want to sell. Its purpose is to switch consumers from buying the
advertised merchandise or services, in order to sell something else, usually at
a higher price or on a basis more advantageous to the advertiser. The primary
aim of a bait advertisement is to obtain leads as to persons interested in
buying merchandise or services of the type so advertised. See
16 U.S.C Section
238.
B. General requirements:
(1) at the time any type of advertisement is
placed, the licensee must in good faith possess and provide to the board upon
request information that would substantiate the truthfulness of any assertion,
omission, or claim set forth in the advertisement;
(2) the board recognizes that clinical
judgment must be exercised by a dentist or dental hygienist. Therefore, a good
faith diagnosis that the patient is not an appropriate candidate for the
advertised dental or dental hygiene service or product is not a violation of
this rule;
(3) licensee shall be
responsible for, and shall approve any advertisement made on behalf of the
dental or dental hygiene practice, except for brand advertising, i.e.
advertising that is limited to promotion of the name of the practice or dental
corporation. The licensee shall maintain a record documenting their approval
and shall maintain such record for a period of three years.
C. The term false advertising
means advertising, including labeling, which is misleading in any material
respect; and in determining whether any advertising is misleading, there shall
be taken into account among other things not only representations made by
statement, word, design, sound or any combination thereof, but also the extent
to which the advertising fails to reveal facts material in the light of such
representations with respect to the commodity to which the advertising related
under the conditions prescribed in said advertisement, or under such conditions
as are customary or usual. See Section
57-15-2 NMSA 1978. Misleading,
deceptive, or false advertising includes, but is not limited to the following,
and if substantiated, is a violation and subject to disciplinary action by the
board:
(1) a known material misrepresentation
of fact;
(2) the omission of a fact
necessary to make the statement considered as a whole not materially
misleading;
(3) advertising that is
intended to be or is likely to create an unjustified expectation about the
results the dentist or dental hygienist can achieve;
(4) advertising that contains a material,
objective representation, whether express or implied, that the advertised
services are superior in quality to those of other dental or dental hygiene
services if that representation is not subject to reasonable substantiation.
For the purpose of this subsection, reasonable substantiation is defined as
tests, analysis, research, studies, or other evidence based on the expertise of
professionals in the relevant area that have been conducted and evaluated in an
objective manner by persons qualified to do so, using procedures generally
accepted in the profession to yield accurate and reliable results. Individual
experiences are not a substitute for scientific research. Evidence about the
individual experience of consumers may assist in the substantiation, but a
determination as to whether reasonable substantiation exists is a question of
fact on a case-by-case basis;
(5)
the false or misleading use of a claim regarding licensure, certification,
registration, permitting, listing, education, professional memberships or an
unearned degree;
(6) advertising
that uses patient testimonials unless the following conditions are met:
(a) the patient's name, address, and
telephone number as of the time the advertisement was made must be maintained
by the dentist or dental hygienist and that identifying information shall be
made available to the Board upon request by the board;
(b) dentists or dental hygienists who
advertise dental or dental hygiene services, which are the subject of the
patient testimonial, must have actually provided these services to the patient
making the testimonial;
(c) if
compensation, remuneration, a fee, or benefit of any kind has been provided to
the person in exchange for consideration of the testimonial, such testimonial
must include a statement that the patient has been compensated for such
testimonial;
(d) a specific release
and consent for the testimonial shall be obtained from the patient;
(e) any testimonial shall indicate that
results may vary in individual cases;
(7) advertising that makes an unsubstantiated
medical claim or is outside the scope of dentistry, unless the dentist or
dental hygienist holds a license, certification, or registration in another
profession and the advertising and or claim is within the scope authorized by
the license, certification, or registration in another profession;
(8) advertising that makes unsubstantiated
promises or claims, including but not limited to claims that the patient will
be cured;
(9) the use of bait
advertising as outlined in federal trade commission guidelines;
(10) advertising that includes an endorsement
by a third party in which there is compensation, remuneration, fee paid, or
benefit of any kind if it does not indicate that it is a paid
endorsement;
(11) advertising that
infers or gives the appearance that such advertisement is a news item without
using the phrase "paid advertisement";
(12) the promotion of a professional service
which the licensee knows or should know is beyond the licensee's ability to
perform;
(13) the use of any
personal testimonial by the licensee attesting to a quality or competence of a
service or treatment.
(14)
advertising that claims to provide services at a specific rate and fails to
disclose that a dental benefit plan may provide payment for all or part of the
services;
(15) print advertising
that contains all applicable conditions and restrictions of an offer that is
not clearly legible or visible. The board will consider font size and
positioning within the advertisement as to what is determined as false,
misleading or deceptive;
(16) audio
advertising that contains all applicable conditions and restrictions that is
broadcast at different speed and volume of the main recording and
offer;
(17) failure to include in
all advertising media for the practice (excluding building signage and
promotional items), in a reasonably visible and legible manner, the dentist's
or non-dentist owner's name(s), address and contact information or direct
reference where the name of the dentist(s) or non-dentist owner(s) can be
found, including, but not limited to, an internet website;
(18) failure to update website(s) wherein the
names of the current dentist(s) are for each office location within 30 days of
the change;
(19) failure to
practice dentistry under the name of a corporation, company, association,
limited liability company, or trade name without full and outward disclosure of
his/her full name, which shall be the name used in his/her license or renewal
certificate as issued by the board, or his/her commonly used name;
(20) failure to practice dentistry without
displaying his/her full name as it appears on the license issued by the board
on the entrance of each dental office;
(21) advertising or making claims that a
licensee or practice claims to be superior to any other licensee or practice,
including, but not limited to, descriptions of being "the highest quality", a
"super-dentist" or "super-general dentist/practitioner", "specially-trained
hygienist", "hygienist specializing in non-surgical periodontics", or
similar;
E. Acronyms: In addition to those acronyms
required by law pertaining to one's business entity such as professional
corporation (P.C.) or limited liability company (L.L.C.), dentists or dental
hygienists may only use DDS, DMD, RDH, MD, PhD, MA, MS, BA, BS. Any credential
that does not meet this requirement must be completely spelled out.
