Antitrust Law Daily Wrap Up, ADVERTISING—D.S.D.: Court bars enforcement of South Dakota dental specialty advertising rule against implant dentists, (Jul 23, 2026)

By Patricia K. Ruiz, J.D.

The court held that a restriction on dentists’ use of “specialist” and similar terms violated the First Amendment as applied to implant dentists with objectively verifiable credentials but without qualifying residencies.

The federal district court in Sioux, South Dakota granted summary judgment to the American Academy of Implant Dentistry (AAID) and a Sioux Falls dentist challenging a state dental advertising rule that barred certain dentists from holding themselves out as specialists unless they completed a qualifying postdoctoral residency. The court held that South Dakota Administrative Rule 20:43:04:01 impermissibly restricted potentially misleading, but not inherently misleading, commercial speech and failed the fourth prong of the Central Hudson test. Finding the rule unconstitutional as applied to the plaintiffs, the court permanently enjoined its enforcement against them and denied the defendants’ cross-motion for summary judgment (American Acadamey Of Implant Dentistry v. Jackley, No. 4:23-cv-04113-KES (D.S.D. Jul. 20, 2026)).

Background. AAID is a professional organization whose members perform dental implant procedures and may earn credentials from the American Board of Oral Implantology/Implant Dentistry (ABOI/ID). Plaintiff Dr. Edward Kusek, a longtime South Dakota dentist and ABOI/ID Diplomate, did not complete a postdoctoral residency program after dental school.

In 2023, following a lengthy rulemaking process, the South Dakota Board of Dentistry adopted Administrative Rule 20:43:04:01. The rule permits dentists to advertise themselves as specialists, or use terms such as “specializes” or “specializing,” only if they completed a qualifying postdoctoral program consisting of at least two full-time years. The rule further provides that unauthorized declarations or implications of specialty status constitute false or misleading advertising.

The plaintiffs challenged the rule under the First and Fourteenth Amendments, contending that it prohibited truthful advertising by dentists who possess recognized implant-dentistry credentials but lack qualifying residency training. They sought declaratory and injunctive relief.

Commercial speech analysis. Applying the Central Hudson framework, the court first determined that the rule was both content-based and speaker-based because it regulated particular words and limited their use to dentists meeting specified residency requirements. The court therefore evaluated the restriction under commercial speech principles.

The court rejected the defendants’ argument that the plaintiffs’ proposed use of “specialist” was inherently misleading. Although survey evidence showed that many consumers associate specialty status with residency training, the court concluded that the record demonstrated only the possibility of consumer confusion rather than inevitable deception. The court emphasized that the plaintiffs sought to advertise bona fide, objectively verifiable credentials and that ABOI/ID Diplomate status was not disputed as a legitimate professional credential.

At the same time, the court found that the state had identified substantial governmental interests, including protecting consumers from misleading professional advertising and promoting accurate commercial information. The court also concluded that the rule directly advanced those interests because evidence before the Board suggested that consumers commonly understood “specialist” to imply completion of a residency program.

Tailoring requirement not satisfied. The court concluded, however, that the rule failed Central Hudson’s fourth requirement because the defendants did not demonstrate that the restriction was no more extensive than necessary to serve the asserted interests. According to the court, the Board had previously considered a disclosure-based approach that would have allowed specialty advertising accompanied by a disclaimer but ultimately abandoned that alternative. The record, the court said, did not explain why a categorical prohibition was necessary rather than a less speech-restrictive disclosure regime.

The court also found the rule both overinclusive and underinclusive. It barred highly experienced dentists with significant credentials from using the designation “specialist” while permitting newly residency-trained dentists to do so, and it continued to allow advertising of credentials that defendants claimed generated the same consumer expectations. The court determined that the defendants had not established the required reasonable fit between their objectives and the means chosen to achieve them.

Relief granted. Having found a First Amendment violation, the court declined to address the plaintiffs’ alternative due process and equal protection claims. The court granted summary judgment on the First Amendment claim, declared the rule unconstitutional as applied to the plaintiffs, permanently enjoined enforcement of the rule against them to the extent it prohibited specialty advertising in non-ADA-recognized fields, and denied the defendants’ motion for summary judgment.

The Case is No. 4:23-cv-04113-KES.

Judge: Schreier, K.

Attorneys: Jami J. Bishop (Johnson, Janklow & Abdallah, LLP) for American Academy of Implant Dentistry. Andrew T. Fick (Nelsen & Preheim, LLP) for Marty Jackley.

Companies: American Academy of Implant Dentistry

Cases: Advertising SouthDakotaNews