3.1 Advertising: Specialty Claims, Patient Images, Fees, Disclosures, and Fictitious Names

The core rule

B&P § 651(a) makes it unlawful for any healing-arts licensee to disseminate a public communication containing a false, fraudulent, misleading, or deceptive statement, claim, or image to attract patients. "Public communication" includes websites, social media, email, directories, print, and broadcast. The Dental Practice Act adds its own list in § 1680: misleading statements (h), claims of professional superiority (i), using solicitors (j), advertising in violation of § 651 (k), and guaranteeing a dental service or promising painless dentistry (l). A § 651 violation is a misdemeanor (§ 651(f)) and grounds for discipline (§ 651(g)).

Under § 651(b), a claim is misleading if it:

1. Misrepresents a fact.
2. Omits a material fact.
3. Creates false or unjustified expectations of favorable results.
4. Relates to fees without disclosing all variables, except a standard consultation fee or a range of fees for specific services.
5. Claims professional superiority, unless the claim is relevant and can be substantiated with objective scientific evidence.
6. Makes a scientific claim not supported by reliable, peer-reviewed, published studies.
7. Uses a testimonial or endorsement that misleads because it leaves out material facts.

Using patients in advertising (K1062)

§ 651(b)(3) controls images:

• A photo must accurately depict the result and must not be altered from the actual subject.
• A photo of a model (anyone who is not an actual patient who had the advertised procedure) must say, prominently, that it shows a model.
• Before-and-after photos of an actual patient must state what procedures were performed, be comparable in lighting and pose, and state that the same results may not occur for all patients.

Board regulation 16 CCR § 1052 adds that images of other people may not be used to claim superiority, including testimonials, and every advertisement must be capable of substantiation.

Privacy law applies too. A patient's photo or story in marketing is a use of protected health information, so you need the patient's written HIPAA marketing authorization and a CMIA authorization. The CDA Code (Section 1D) also requires informed consent before using identifiable photographs, radiographs, or models for any purpose other than treatment.

Fees in advertisements (K1063)

Specialty claims and credentials (K1061)

§ 651(h)(5)(A) allows a dentist to state that they are certified by a private or public board or agency, or that they limit their practice to specific fields, as long as the statement is not misleading. The Board's older specialty-advertising regulations (16 CCR §§ 1054–1054.2) were repealed in 2016, so on the exam the test is § 651's "false or misleading" standard.

The ADA Code (Section 5.H) sets the ethical rule. A dentist may announce as a specialist only in specialties recognized by the National Commission on Recognition of Dental Specialties and Certifying Boards, and only after meeting the educational requirements. Examples include endodontics, orthodontics and dentofacial orthopedics, pediatric dentistry, periodontics, prosthodontics, and oral and maxillofacial surgery. Specialists should say "specialist in" and must keep enough of their practice in that specialty. Under Section 5.I, a general dentist may announce available services such as implants or orthodontics but must avoid implying specialization and must state that a general dentist provides them. Credentials in non-specialty areas require a formal program of at least 12 months, an exam, and a disclaimer that the area is not a recognized specialty (Advisory Opinions 5.H.2 and 5.I.1).

Required disclosures (K1064)

Collecting the rules above, an advertisement must disclose:

• That a pictured person is a model, when true.
• The procedures behind before-and-after results, and the "results may vary" statement.
• The services included, extra charges, and, for discounts, the regular fee, the discount, the duration, and eligibility.
• Any payment to a journalist or media outlet for publicity (§ 651(d)).
• That services are provided by a general dentist, when a general dentist advertises specialty-type services (ADA 5.I).
• The practice's licensed or permitted name, never an unpermitted trade name.

Fictitious names (K1065)

Under B&P § 1701(a)(7) and § 1680(f), practicing or advertising under any false, assumed, or fictitious name, or any name other than the licensed name, is a crime and unprofessional conduct unless a valid fictitious name permit (FNP) covers it. First offenses are misdemeanors (a $200–$3,000 fine and/or up to six months in jail); second offenses are felonies.

B&P § 1701.5, rewritten by SB 1453 effective January 1, 2025, sets the FNP rules:

1. A sole proprietor, a group, or a dental corporation applies on the Board's form.
2. Applicants must show the location is owned or leased by them and that the practice is wholly owned and entirely controlled by them.
3. The name must contain "dental group," "dental practice," "dental office," or "dental corporation," as applicable. Dental corporations must also show corporate status (§ 1804). The name must comply with § 651 and may not claim superiority or promise painless care (§ 1680(i), (l)).
4. Every applicant needs an active license with no pending enforcement action.
5. The permit lasts two years.
6. A departing dentist must report the departure within 30 days. If the departing dentist's family name is in the permitted name, it must be removed.
7. Adding a dentist requires cancelling the permit and applying again.

The ADA Code (Section 5.G) adds that a retired or departed dentist's name may stay on the practice name for no more than one year unless a public notice explains the retirement.