EDITOR’S NOTE:
Leading up to the celebration of PDA’s 150 th Anniversary
in 2018, we will be featuring reprints of Pennsylvania Dental
Journal editorials. This issue features the May/June 1999
“throwback” editorial.
MAY/JUNE 1999 EDITORIAL
The Revolving Door of Regulation
By Judith McFadden, DMD
I was leaving the office late the other evening and, as usual,
I turned on the car radio to listen to the news on the way
home. I tuned in to the middle of a report about how the
government is planning to establish regulations for the
weight control business. Congressmen are concerned about
claims and promises of excessive weight loss, about the cost
of continued support and food products after the initial
advertised offer and about the importance of informing the
public that weight loss is a difficult endeavor, demanding
continued effort and determination.
Just that morning, I had read about the case before the
Supreme Court between the Federal Trade Commission and
the California Dental Association. The CDA has been
challenged by the FTC because of its “restrictive” advertising
policies. The American Dental Association stepped into the
fray in support of the CDA because the Code of Ethics, which
outlines the professional code of advertising that the CDA
sought to uphold, was being attacked.
The Supreme Court proceedings were reported in the
ADA News. Mr. Peter Sfikas, ADA General Counsel, debated
with the Justices – yes, the likes of Sandra Day O’Connor, Ruth
Bader Ginsburg, Antonin Scalia: and David Hackett Souter.
The attorneys for the FTC claimed that the CDA violated the
antitrust laws by restricting dentist advertising. The argument
seemed to hinge on regulatory distinctions between non-
profit professional associations and trade organizations.
Mr. Sfikas argued that “with all due respect, it [the CDA] is not
a trade association.” The argument hovered over questions
about the CDA existing for the profit of its members, meaning
that the CDA is in existence to help its dentists make money.
Instead of answering, as I would have, “you must be kidding,”
Mr. Sfikas referred back to an earlier court ruling about the
definition of “profit.” I understood in a flash why lawyers are
trained the way they are, and I decided then and there that
my entire dues for 1999 was worth having Peter Sfikas in front
of Supreme Court justices for the ADA.
When I consider the scrutiny that is being cast upon the weight
control business, I wonder why dentistry and the Code of
Ethics, which provides guidance for honest disclosure to the
public, are being challenged. There are those, certainly, who
might like to go beyond what the guidelines suggest. There
are those who might find the restrictions about claims of
excellence and educational credentials burdensome. When
the field is examined from a panoramic view, however,
dentistry has clearly taken the high ground. By limiting
puffery and requ iring disclosure, we have escaped the painful
and misleading course of public betrayal.
The challenge of “doing business” in the United States will
always be fraught with the perils of being engulfed by a
rigidly indifferent and profit-oriented mentality. The justices
in their wisdom will, I hope, understand the fundamental and
significant difference between a profession and a trade and,
further, be able to grasp the meaning and purpose of a dental
association.
This decision will be a momentous one. I, for one, hope the
justices rule in favor of the CDA. I don’t want to leave the
office in the year 2009, switch on my car radio and hear that
the federal government, specifically certain Congressional
committees, is concerned about the legitimacy of claims
that are being made in dentists’ advertisements. Dentists
have been held to high standards that are intended not to
impede the competition of practitioners but to protect the
health and welfare of the society we serve.
— J. McF
Dr. Judith McFadden of Philadelphia County Dental Society served
as editor of the Pennsylvania Dental Journal from 1992-2000.
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