The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5113

July 26, 1977

OPTOMETRISTS:

Price advertising

CONSTITUTIONAL LAW:

First Amendment

LICENSES AND PERMITS:

Price advertising

The provisions of the statute regulating optometrists which prohibits price advertising conflict with the constitutional right of free speech and are invalid.

The commercial free speech provision of the State and Federal Constitutions does not prevent the state from dealing with misleading or deceptive advertising.

Mr. Robert F. Leonard

Prosecuting Attorney

Genesee County Courthouse

Flint, Michigan 48502

You have requested my opinion on the validity of Sec. 8(h) and (i) of the act regulating the practice of optometry, 1909 PA 71, Sec. 8(h) and (i); MCLA 338.258(h) and (i); MSA 14.648(h) and (i), which provides as follows:

'It shall be unlawful:

(h) For any person, registered under this act, or any individual, firm or corporation engaged in the sale of merchandise of any description who maintains or operates, or who allows to be maintained or operated in connection with said merchandise business, an optometric department, or who rents or subleases to any person or persons for the purpose of engaging in the practice of optometry therein, any part of premises in which such person, persons, firm or corporation is engaged in mercantile business, to publish or circulate, or print or cause to be printed, by any means whatsoever, any advertisement or notice in which said advertisement or notice appears, any untruthful or misleading statement, or anything calculated or intended to mislead or deceive the public or any individual or to quote prices of glasses, or to use in such advertisement the statement 'Eyes Examined Free', or words of similar import.

'(i) For any person to advertise glasses or lenses, frames or their supporting accessories, with or without frame or mounting at a price, with or without examination of eyes or professional services, or at a price with such phrases as 'as low as', 'and up', 'lowest prices,' or words or phrases of similar import; or to offer any gift, premium or discount in conjunction with the practice of optometry. . . .'

Recently in Bates et al v State Bar of Arizona, ---- US ----; ---- S Ct ----; ---- L Ed 2d ---- (June 27, 1977), the United States Supreme Court addressed the question of whether a disciplinary rule restricting the right of attorneys to advertise violated the First Amendment to the United States Constitution made applicable to the states through the 14th Amendment. In an opinion delivered by Mr. Justice Blackmun and concurred in by a majority of the court, it was held that, although advertising that is false, deceptive or misleading is subject to restraint by the state, a state may not prohibit an attorney from advertising the offering of legal services at 'very reasonable fees' and from listing the fees for certain professional services. In so concluding, Justice Blackmun stated as follows:

'. . . [commercial] speech should not be withdrawn from protection merely because it proposed a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Thornhill v Alabama, 310 U.S. 88 (1940). The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, supra. And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co., 386 U.S. 568, 603-604 (1967) (Harlan, J., concurring). In short, such speech serves individual and societel interests in assuring informed and reliable decisionmaking. 425 U.S., at 761-765.'

See also Bigelow v Virginia, 421 US 809; 95 S Ct 2222; 44 L Ed 2d 600 (1975), and Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc, 425 US 748; 96 S Ct 1817; 48 L Ed 2d 346 (1976).

Advertising by optometrists also is speech. The free flow of information about optometric goods and services is no less important than the free flow of information about abortion referral services (as in Bigelow) or the prices of prescription drugs (as in Virginia Pharmacy).

It should be noted that neither section 8(h) nor 8(i) expressly prohibits an optometrist from advertising the price of his or her professional services. What each provision proscribes is (1) the advertising of the prices of the eyeglasses, lenses or frames and (2) untrue and misleading advertising. However, in Bates, supra, the Supreme Court pointed out that, although a state may regulate commercial advertising to the extent the public is protected against deceptive or fraudulent advertising, it may not prohibit price advertising that informs the public of the cost of materials and routine professional services.

I am aware that in Siefert v Buhl Optical Co, 276 Mich 692; 268 NW 784 (1936), the Michigan Supreme Court upheld the validity of the optometry regulation act against an optical retailer's assertion that its proscriptions against untrue and deceptive price advertising was discriminatory. The Court found the act's proscription on deceptive advertising of prices of eyeglasses was within the power of the legislature to enact. Later, in Ritholz v City of Detroit, 308 Mich 258; 13 NW2d 283 (1944), the Court intimated that the proscription could be applied with equal vigor against an optometrist.

However, neither Seifert nor Ritholz considered the proscription against price advertising in the context of the constitutional protections against infringements on free speech.

It is therefore my opinion that the recent decisions by the United States Supreme Court in Bates, Bigelow and Virginia Pharmacy holding commercial advertising to be protected speech are controlling and that the prohibition contained in Sections 8(h) and 8(i), 1909 PA 71, as amended; MCLA 338.258; MSA 14.648, against price advertising are invalid.

The applicability of the free speech provisions of the state and federal constitutions to price advertising by optometrists does not mean that Michigan is powerless to deal with misleading or deceptive advertising. The state may ensure that the stream of commercial information flows cleanly as well as freely.

Frank J. Kelley

Attorney General