N.J.A.C. 13:30-6.1 and 6.2

Notice of Receipt and Action on Petition for Rulemaking

Petitioner: Frank R. Recker, D.D.S., J.D., on behalf of the American Academy of Implant Dentistry and the American Board of Oral Implantology/Implant Dentistry.

Take notice that on August 16, 2010, the New Jersey Board of Dentistry (the Board) received correspondence from Frank R. Recker, D.D.S., J.D., on behalf of the American Academy of Implant Dentistry (AAID) and the American Board of Oral Implantology/Implant Dentistry (ABOI/ID), requesting that the Board amend its regulations set forth at N.J.A.C. 13:30-6.1 and 6.2.

The petitioner noted that under N.J.A.C. 13:30-6.1 and 6.2, a member of the AAID or the ABOI/ID may advertise his or her AAID or ABOI/ID credentials provided that the dentist discloses "the licensee's status as either a general dentist or as the holder of a specialty permit pursuant to N.J.A.C. 13:30-6.1, the name of the dental organization, and if the advertisement concerns an area of practice not recognized as a specialty pursuant to N.J.A.C. 13:30-6.1(c), that the services provided are not a recognized dental specialty." The petitioner stated that AAID and ABOI/ID-accredited members would like to include these credentials in advertisements in order to display their additional education and experience in implant dentistry. The petitioner believes that the advertisement of these credentials provides the public with truthful, non-misleading information that may assist consumers in making informed decisions relating to dental services.

The petitioner believes that any limitation placed by the Board on a dentist's ability to advertise credentials awarded by the AAID or the ABOI/ID are improper and infringe on the constitutionally protected rights of AAID and ABOI/ID members. Specifically, the petitioner claims that such limitations effectively restrict truthful, non-misleading advertising, in violation of the United States Constitution's First Amendment protection of commercial speech. The petitioner also claims that such limitations may violate AAID and ABOI/ID members' rights to equal protection of the laws under the United States Constitution's Fourteenth Amendment.

[page=2333] The petitioner also claims that limiting a dentist's ability to advertise credentials awarded by the AAID or the ABOI/ID violates AAID and ABOU/ID members' constitutional substantive due process rights. The petitioner believes that the Board has delegated to the American Dental Association (ADA) the right to designate what specialties or specialty credentialing organizations the Board will recognize. The petitioner claims that the ADA has no process or mechanism to evaluate any dental organization in an area of dentistry not already recognized by the ADA , and claims that there is no avenue for a dentist to request recognition of dental implantology as a specialty. The petitioner believes that by deferring to the ADA on the issue of specialty credentialing, the Board deprives dentists of the rights that due process requires.

The petitioner requests that the Board clarify its position with respect to whether a dentist may advertise credentials awarded by the AAID and the ABOU/ID, and that the Board initiate rulemaking in order to eliminate the disclaimer requirement in N.J.A.C. 13:30-6.2, regarding the advertisement of non-specialty areas of dental practice.

Take further notice that the Board considered the petition for rulemaking at its Board meeting on September 1, 2010. The Board determined that further review and analysis of the issues raised by the petitioner were warranted in order to determine whether amendments to N.J.A.C. 13:30-6.1 and 6.2 are necessary and reasonable. Consistent with the requirements of N.J.A.C. 1:30-4.2, the Board referred this matter to its Rules and Regulations Committee, for further deliberation and for the development of information for subsequent presentation to the Board.

A copy of this notice has been mailed to the petitioner consistent with the requirements of N.J.A.C. 1:30-4.2.