Thursday, August 15, 2019

a made-up credential implying a doctorate is inherently misleading

Wilson v. Ohio State Chiropractic Board, 2019 WL 3801546, No. 18AP-739, 2019 -Ohio- 3243 (Ct. App. Aug. 13, 2019)

The Board disciplined Wilson for deceptive advertising, and the court of appeals upheld the discipline.  Two bits of interest: (1) Wilson advertised that he was a “D.NMSc.” The court of appeals found this inherently misleading, which is the constitutional standard used to figure out when no disclaimer requirement need be attempted for commercial speech. The crucial difference between this formulation and the Lanham Act concept of falsity and misleadingness is that courts regularly use their common sense and expert testimony to decide what’s inherently misleading, rather than requiring the government to produce consumer perception evidence. Quoting other state court cases, the court here reasoned that a term is inherently misleading if it is “ ‘likely to deceive the public based upon the general public’s use of the term.’ … In general, a statement will only be inherently misleading if the statement, standing alone, will almost unavoidably lead to fraud, undue influence, intimidation or other duplicity.”

That was the case here. Wilson acknowledged that D.NMSc was supposed to connote that he is a Doctor of NeuroMetabolic Science.

That is simply not true. There is no such credential. Appellant admitted that the D.NMSc is not an academic degree; rather, it is a credential. However, the credential exists only because appellant and his colleagues created it. Moreover, the credential was bestowed upon appellant by the IANMP— an organization he and his colleagues formed—and one that is unlicensed by any Florida or Ohio entity governing academic accreditation of doctoral programs.

He and his colleagues created the D.NMSc credential to distinguish their “functional medicine and functional neurology” services from traditional chiropractic services. He testified that “I do functional medicine and functional neurology, and there’s no certification out there specifically that defines it.” Thus, it was clear that the general public was likely to be deceived by the use of the designation: “A member of the public upon hearing or reading that appellant holds a doctorate would assume that appellant has completed a standardized course of study to obtain the degree when in fact appellant created both the credential and the organization that bestowed the credential.” This was inherently misleading and a prohibition created no First Amendment problems.

(2) Wilson argued that it was wrong to hold that his use of the designation D.C. did not clearly identify him as a chiropractor in violation of Ohio law, which requires that “[a]ll advertisements and solicitations shall clearly reveal that the advertisement and/or solicitation is being made on behalf of a chiropractic physician.” The Board “determined in 2007 that the D.C. designation was insufficient to identify a chiropractic physician in advertisements and accordingly amended its administrative rules to require chiropractors to identify themselves using [chiropractic, chiropractor, doctor of chiropractic, or chiropractic physician].” A representative submitted testimony that the Board amended the rule due to consumer complaints that advertisements using only the D.C. designation did not sufficiently signal that the advertisement was for a chiropractor.  This didn’t constitute unconstitutional compelled speech because Zauderer allows disclosure requirements mandating “purely factual and uncontroversial information” where it avoids consumer deception.  Wilson argued that the Board needed to provide “empirical evidence” of deception to take advantage of this rule.  But Zauderer itself said that when the possibility of deception is “self-evident,” the state need not “‘conduct a survey of the * * * public before it [may] determine that the [advertisement] had a tendency to mislead.’” Here, the Board’s position “that it is deceptive to advertise for healthcare services without revealing the type of healthcare professional providing such services”  was reasonable enough to mandate disclosure, and that mandate was not unduly burdensome.

No comments: