The late Gary Strong, DDS, was an active early IAOMT member. When the Montana Dental Board went after him for advertising “mercury free dentistry”, he contacted the Denver office of the Federal Trade Commission. The commission sent him this letter, after which the dental board was silent.
Federal Trade Commission
_______________________________________________________________
Denver Regional Office
Suite 2900
1405 Curtis Street
Denver, Colorado 80202-2393
(303) 844-2271
June 5, 1987
Dr. Gary Strong
503 Wicks Lane, Suite #2
Billings, MT 59105
Dear Dr. Strong :
This is in response to your telephone call of May 11, 1987, in which you requested an opinion on whether the statement “Mercury Free Dentistry” , contained in your yellow pages advertisement, would be “ deceptive” in our view. We are pleased to have the opportunity to provide you with the requested opinion.
This informal staff opinion only addresses whether, based on information you provided to us, the advertisements enclosed with your letter are deceptive under Section 5 of the FTC Act. It expresses no views on the Montana State Board of Dentistry’s regulations governing dental advertising or their applicability to the advertisement at issue. This opinion represents the view of the Denver Regional Office, which is responsible for monitoring deceptive practices in an eight state region including Montana. It does not necessarily represent the views of the Federal Trade Commission or any individual Commissioner. However, this opinion is based on past Commission law enforcement actions, Commission policy statements on what constitutes deceptive advertising under Section 5 of the FTC Act, consultations with Washington staff and on staff comments on pursuant to Commission authorization.
Under Section 5 of the FTC Act, an advertisement is deceptive if it contains a representation or omission that is likely to mislead consumers acting reasonably in the circumstances, to the consumers’ detriment. As this definition implies, in determining whether an advertisement is deceptive under Section 5 we focus on the content and likely effect on consumers of that particular ad. We focus on whether: (1) the ad contains a representation contrary to fact or an omission of important qualifying information necessary to prevent a representation from being misleading; (2) the representation or omission is likely to mislead consumers acting reasonably in the circumstances; and (3) the representation or omission is “material” – one that concerns information important to consumers and likely to affect their conduct or purchasing decisions. These three questions must all be answered in the affirmative before an advertisement will be considered deceptive under Section 5. The application of this case-by-case analysis to specific fact situations is more fully discussed in the Commission’s October 14, 1983 statement to Congress on the scope of its “deceptive acts or practices” authority, which we have attached to this letter for your information.
The phrase “mercury free dentistry” is a statement of verifiable fact. As long as you do not utilize mercury in your practice, the statement merely informs the consumer of this limitation and is accordingly non-deceptive. (Emphasis added) We have no reason to believe that consumers would be misled as to what is being offered as long as the statement is truthful. Further, highlighting alternatives to traditional methods of practice could very well be useful to consumers in selecting a dentist.
Finally, we wish to stress that our conclusion regarding the phrase “mercury free dentistry” should not be construed as an endorsement of this method of practice. We are aware of the current controversy regarding the use and safety of amalgam containing mercury, but take no position on that issue.
Thank you again for the opportunity to provide you with our opinion in this matter. Please feel free to contact me at (303) 844-2271 should you have any questions.
Very truly yours,
(SIGNATURE)
Claude C. Wild III, Director
Denver Regional Office
