The State Board of Dental Examiners (SBDE) proposes new §108.50, relating to Objectives of Rules; §108.51, relating to Definitions; §108.52, relating to Names and Responsibilities; §108.53, relating to Fees; §108.54, relating to Advertising of Specialties; §108.55, relating to Advertising for General Dentists; §108.56, relating to Certifications, Degrees, Fellowships, Memberships and Other Credentials; §108.57, relating to False, Misleading or Deceptive Advertising; §108.58, relating to Solicitation, Referrals and Gift Schemes; §108.59, relating to Website Disclosures; §108.60, relating to Record Keeping of Advertisements; §108.61, relating to Grounds and Procedures for Disciplinary Action for Advertising Violations; §108.62, relating to Awards, Honors and Recognitions; and §108.63, relating to Advertisement and Education by Unlicensed Clinicians.

The SBDE's Advertising Rules Ad-Hoc Committee was convened to update the agency's advertising rules based on emerging technologies and issues in the business promotion of dentistry and dental practices. The committee met on August 4, 2011; October 7, 2011; November 10, 2011; January 27, 2012; March 9, 2012; and July 13, 2012.

The new sections developed by the committee (§§108.50 - 108.63) were written to update existing advertising rules (§§108.50 - 108.61) that are presently proposed for repeal. The rules proposed for adoption are modeled in part after the American Association of Dental Boards' (AADB) Guidelines on Advertising. In addition to the generally accepted guidelines promulgated by the AADB, the rules address the communication of specialty practices and dental credentials to the public, the inclusion of professional awards and honors in advertisements, and the recommendations regarding website publications. A significant change in the rules is that the publication of patient testimonials will be allowed under the proposed rules.

Mr. Glenn Parker, Interim Executive Director, has determined that for each year of the first five years the new sections are in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering the sections.

Mr. Parker has also determined that for each year of the first five years the new sections are in effect, the public benefit anticipated as a result of enforcing the new sections will be protection of the public through updated advertising and business promotion rules that protect the public from false, deceptive, and misleading advertising.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. Approximately 14,000 dentists hold active licenses to practice dentistry in Texas granted by SBDE. The Texas Comptroller estimates approximately 6,800 dental offices in the state of Texas hold a small or micro-business classification. As required by the Government Code §2006.002 the Board has determined whether the proposed rules will have an adverse economic effect on any small or micro-business required to comply with the proposal. The Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. The economic cost of compliance with the proposed rules is minimal. Regulated entities who were in compliance with the prior rules may sustain minimal costs to update their advertising materials with any required explanations or disclosures. Any alternative method to achieve protection of the public from deceptive advertisement would introduce greater restriction and greater cost.

Takings Impact Assessment. The Board has determined that these proposed new sections do not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Comments on the proposal may be submitted to Nycia Deal, Staff Attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or nycia@tsbde.texas.gov (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that the sections are published in the Texas Register.

The new sections are proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.

The new sections affect Texas Occupations Code, Title 3, Subtitle D and Texas Administrative Code, Title 22, Part 5.