Request By:
Franklin Yudkin, Esq.
310 West Liberty Street
Suite 709
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask whether a licensed dental laboratory may lawfully advertise its products and services to the general public. The applicable statute is KRS 313.010(2) which provides that:
"Any person shall be regarded as 'practicing dentistry' who . . . [1] shall construct, supply, reproduce or repair any prosthetic denture, bridge, artificial restoration, appliance or other structure to be used or worn as a substitute for natural teeth 1, except upon written order or prescription of a licensed dentist and constructed upon or by the use of casts or models made from an impression taken by a licensed dentist, or who [2] shall advertise, offer, sell or deliver any such substitute or the services rendered in the construction, reproduction, supply or repair thereof to any person other than a licensed dentist, . . . ."
We interpret the above-quoted portion of the statute to mean that a person will be considered to be practicing dentistry in either of two situations. First, the individual constructs, supplies etcetera a dental device without a prescription of a licensed dentist or upon a cast or model made from an impression taken by a licensed dentist. In your letter you state that the dental laboratory which desires to advertise will require a written prescription. Although not mentioned, we assume that the dental device will be constructed upon casts or models made from impressions taken by licensed dentists. If this assumption is correct, this first situation will not apply to the dental laboratory.
The second situation in which a person will be considered to be practicing dentistry occurs if the person advertises a dental device or the services rendered in the construction, reproduction etcetera to any person other than a licensed dentist. Based on the plain wording of the statute, which must control, cf. Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (1961), we are of the opinion that a dental laboratory may not advertise 2 to the general public or to anyone other than a licensed dentist because to do so will constitute the practice of dentistry. Not having a license to practice dentistry, the dental laboratory is subject to an injunction, cf. Nugent v. Stokes, 313 Ky. 131, 230 S.W.2d 609 (1950).
This statute does not prohibit dental laboratories from advertising per se. Thus, it is distinguishable from the rule of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. U.S., 48 L.ed.2d 346 (May 24, 1976) because pharmacists have traditionally been able to offer, sell and deliver drugs directly to the general public.
Therefore, we are of the opinion that a dental laboratory may not advertise, offer, sell or deliver dental devices or the services rendered in the construction, reproduction, supply or repair thereof to any person other than a licensed dentist. Such action will constitute the practice of dentistry, KRS 313.010(2). We are of the further opinion that the rule of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, does not apply to this statute.
Footnotes
Footnotes
1 For the sake of convenience, a "prosthetic denture, bridge, artificial restoration, appliance or other structure to be used or worn as a substitute for natural teeth" will be referred to as a "dental device."
2 In addition to advertising, a person will be considered to be practicing dentistry if he offers, sells or delivers any such dental device or services rendered in the construction, et cetera thereof to any person other than a licensed dentist, KRS 313.010(2).