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.

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