California's limits on use of "doctor" in healthcare settings are constitutional regulations of commercial speech

Palmer v. Bonta, 2025 WL 2882948, No. EDCV 23-1047 JGB (SPx) (C.D. Cal. Sept. 19, 2025)

Plaintiffs alleged that California Business and Professions Code § 2054(a), on its face and as enforced, violates the First Amendment because it provides, in relevant part:

[a]ny person who uses in any sign, business card, or letterhead, or, in an advertisement, the words “doctor” ..., the letters or prefix “Dr.,” ... or any other terms or letters indicating or implying that the person is a physician and surgeon ... without having at the time of so doing a valid, unrevoked, and unsuspended certificate as a physician and surgeon under this chapter, is guilty of a misdemeanor. No person shall use the words “doctor” or “physician,” the letters or prefix “Dr.,” ... or any other terms or letters indicating or implying that the person is a physician and surgeon ... in a health care setting that would lead a reasonable patient to determine that person is a licensed “M.D.” or “D.O.”

The Board of Registered Nursing supported this law only if it allowed nurses with a terminal degree (i.e., Doctor of Nursing Practice) to use “Dr.” “regardless of setting” so long as they indicated their profession or specialty on their badge and in communication. Bonta, on behalf of the Board of Registered Nursing, filed an Accusation against Erny, who is a Doctor of Nursing Practice (DNP), for “representing to patients that she was a medical doctor” in violation of Section 2054; the District Attorney for San Luis Obispo County then sought an injunction, civil penalties, and other equitable relief against her. She was ordered to pay $19,750 in civil penalties.

Plaintiff Palmer also holds a DNP. Between 2020, when she earned her DNP, and 2023, Palmer (1) wore a clinician’s jacket embroidered with “Dr. J. Palmer, FNP-C”; (2) introduced herself to patients, “I’m Dr. Jacqueline Palmer. I’m a nurse practitioner”; (3) signed her name on official clinic documents using the title “Dr.” and “FNP” as a post-nominal; and (4) was not aware that it was illegal to use the title “Dr.” on her clinician’s jacket or in any other way so long as she disclosed that she was a nurse practitioner. Palmer always disclosed to patients that she is a nurse practitioner and never practiced outside of her scope of practice for licensure.

Nonetheless, patients have assumed that Palmer was a medical doctor. The American Medical Association’s survey results that show that 39% of patients believe that a DNP is a physician.

After learning about the legal actions against Erny, Palmer stopped wearing her clinician’s jacket, stopped signing official clinic documents using the title “Dr.,” and asked others not to refer to her as “Dr.” She would like to return to her previous practices. Other plaintiffs had similar stories.

There is nothing that a nurse practitioner that has a DNP can do that a nurse practitioner that does not have a DNP cannot. DNP programs range from one to two years; they can be online with no in-person classes; they don’t have stringent admission requirements; they may not have, and plaintiffs’ programs didn’t have, courses in, e.g., anatomy, biology, biochemistry, immunology, physiology, pathology, or pharmacology; so too for clinical work with patients/patient interaction.

One plaintiff testified that he believed that he would attract more patients to his aesthetic clinic if he can call himself “Dr. Hanson” as opposed to not using the title “doctor,” because “[i]f patients were given the opportunity to pick between two clinics, one with Dr. Hanson and one with Mr. Hanson written on it, most would gravitate to the former.” Plaintiffs didn’t know whether patients know what the letters DNP, PHN, MSN, MASE, BSPT, or FNP-C mean (all relevant terms for credentialing) and largely didn’t know the terms until they sought more credentials.

Plaintiffs argued that Section 2054 is a content-and speaker-based restriction on speech, and thus subject to strict scrutiny. The court rejected this argument.

Facial challenge: Plaintiffs argued that the law “sweeps in its ambit an array of professionals who are not physicians or surgeons but who still can truthfully (and regularly) call themselves ‘Dr.’: psychologists (PsyD), pharmacists (PharmD), naturopaths (ND), physical therapists (DPT), and Ph.Ds (including honorary Ph.Ds).” In a First Amendment facial challenge, “[t]he question is whether a substantial number of the law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

“The first step in the proper facial analysis is to assess the state laws’ scope.” “What activities, by what actors, do the laws prohibit or otherwise regulate?” The second step “is to decide which of the laws’ applications violate the First Amendment, and to measure them against the rest.” The party bringing the First Amendment facial challenge has the burden to show the full scope of the law’s coverage; to identify which of the law’s applications are constitutionally permissible and which are not; and, ultimately, to show that the law “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.”

The California Court of Appeals has found that the “purpose of [S]ection [2054] is to protect the public,” specifically by regulating the use of certain professional titles associated with the medical field—i.e., “Dr.” and “doctor”—in healthcare-related advertising and healthcare settings. The court found this was a regulation of commercial speech. The “use of professional titles and certifications in advertising, yellow-pages listings, business cards, and stationery is commercial speech.”

Plaintiffs argued the law expanded into noncommercial space by adding the phrase “in a healthcare setting that would lead a reasonable patient to determine that person is a licensed ‘M.D.’ or ‘D.O.’ ” Because the patient is already seeking out care from plaintiffs by the time they use “Dr.” or “doctor” in a healthcare setting, they argued that they were engaged in noncommercial speech and that any commercial speech was inextricably intertwined with fully protected speech.

Although using “doctor” in a healthcare setting wasn’t a traditional ad format, it was still commercial speech: The “specific product” plaintiffs sought to advertise when using “Dr.” or “doctor” in healthcare settings was “the expertise, knowledge, and quality of services these professional titles convey to patients and colleagues.” And they had an economic motive for the speech: “to solicit [and retain] a patient base” and improve their professional brand.

The facial challenge failed because the law regulated misleading speech, and even if it went beyond that, was ok under Central Hudson.

As-applied challenge: The Supreme Court has distinguished between “inherently misleading” speech and “potentially misleading” speech. When “advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive,” the advertising enjoys no First Amendment protection. The government may ban this type of commercial speech entirely. But if the speech is only “potentially misleading,” in other words, “if the information also may be presented in a way that is not deceptive,” Central Hudson (intermediate) scrutiny is required.

But here, the record indicated that plaintiffs’ particular form or method of advertising has “in fact been deceptive.”  It was undisputed that patients assumed Palmer was a medical doctor and that plaintiff Hanson makes it a point to explain to patients that he is not a physician when they call him “Dr.” Thus, the speech was inherently misleading even though it communicates truthful information. Plaintiffs conceded as much by agreeing that the use of “Dr.” or “doctor” in healthcare settings without further clarification generally refers to licensed physicians or surgeons. Accordingly, “[t]he assumption that substantial numbers of potential clients would be so misled is hardly a speculative one.”

California not only regulates the title “doctor,” it regulates the licensing and practice of physicians and surgeons. Plaintiffs didn’t meet these statutory requirements, and thus their use of “Dr.” or “doctor” was inherently misleading.

Even if it was only potentially misleading, the regulation would still satisfy Central Hudson in advertising and healthcare settings. California has a substantial interest in “protecting consumers from those who falsely hold themselves out as licensed physicians but [who] have not been duly licensed.” What about the fit between the legislature’s ends and the means it chose?

Plaintiffs argued that “at least as applied to nurse practitioners with DNPs, [who truthfully refer to themselves as “Dr.” or “doctor,”] [S]ection 2054[ ] does not directly advance Defendants’ only stated interest because it does not prevent fraudulent misrepresentations.”

Under Central Hudson, “the State must demonstrate that the challenged regulation advances the Government’s interest in a direct and material way,” which requires it to show “that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree.” Empirical data, studies, anecdotes (whether in-state or extra-jurisdictional), history, consensus, and common sense are all relevant. Here, the “harms [California] recites are real” because the speech has caused some patient confusion. And it was reasonable to infer that some consumers will assume that Plaintiffs are licensed physicians or surgeons if they use “Dr.” or “doctor” in healthcare settings and in advertising materials promoting medical services even if Plaintiffs also identify themselves as DNPs, as borne out by the AMA survey showing 39% of patients believe that a DNP is a physician and plaintiffs’ own ignorance of what the letters DNP meant until they started pursuing higher education.

What about less restrictive alternatives? Plaintiffs argued that they were already required to disclose and explain their license and credentials, and California’s false advertising and unfair business practices laws already address concerns about patient deception. However, “[i]n considering the restriction imposed on commercial speech, [courts] do not require that it be the least restrictive means available.” Rather, what is required is “a reasonable fit between the legislature’s ends and the means chosen to accomplish those ends.”

Here, Section 2054 didn’t limit plaintiffs’ ability to describe themselves as DNPs or to otherwise accurately state their credentials. So there was a reasonable fit.