A physician or surgeon ... may include a statement that he or she limits his or her practice to specific fields, but shall not include a statement that he or she is certified or eligible for certification by a private or public board or parent association, including but not limited to, a multidisciplinary board or association, unless that board or association is (i) an American Board of Medical Specialities Board member (ii) a board or association with equivalent requirements approved by that physician and surgeon's licensing board or (iii) a board or association with an Accreditation Council for Graduate Medical Education approved postgraduate training program that provides complete training in that specialty or subspecialty. A physician and surgeon ... who is certified by an organization other than a board or association referred to in clause (i), (ii), or (iii) shall not use the term “board certified” in reference to that certification.... A physician and surgeon ... who is certified by a board or association referred to in clause (i), (ii), or (iii) shall not use the term “board certified” unless the full name of the certifying board is also used and given comparable prominence with the term “board certified” in the statements.... For the purposes of the term “board certified,” as used in this subparagraph, the terms “board” and “association” mean an organization that is an American Board of Medical Specialties member board, an organization with equivalent requirements approved by a physician and surgeon's licensing board, or an organization with an accreditation council for graduate medical education approved postgraduate training program that provides complete training in a specialty or subspecialty.2
Business and Professions Code section 651(h)(5) and the board's regulation place no general restrictions on plaintiffs' member's right to advertise their membership in the (Academy). Nor does it prohibit their opportunity to advertise that they specialize in the field of pain management, or that they hold any other status with the Academy. Plaintiffs' members simply cannot use the term “board certified.”
In commercial speech cases ... a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
To the extent that potentially misleading statements of private certification could confuse consumers, a state might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of speciality.
Article III § 3.5 of the California Constitution prohibits the Medical Board from considering Constitutional objections to a statute or a regulation. The essence of the Plaintiffs' case is based on the Constitutional objection that the statute and regulation are unconstitutional. These objections were never considered.
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