February 1, 2002

ATTORNEY GENERAL OPINION NO. 2002- 9

Stan Peterson, Arch., Chairperson

Kansas Board of Technical Professions

900 S.W. Jackson Street, Suite 507

Topeka, Kansas 66612-1257

Re:	State Boards, Commissions and Authorities--State Board of Technical Professions--Geologists; Qualifications for Licensure; Title, Use of

Synopsis:	Use of the title "geologist" signifies a state-sanctioned professional who is licensed to practice geology. It is currently not unlawful for a geologist licensed in Kansas to use the titles "licensed geologist," "registered geologist," or "professional geologist" unless the Kansas Board of Technical Professions makes a finding that the use of these titles is misleading and adopts a regulation to prohibit use of such titles. The use of the titles in question involves commercial speech that is protected by the First Amendment. Thus, if use of the titles is found by the Board to be misleading, any restriction on the use of the titles will be subject to constitutional scrutiny requiring that the state justify the need for such regulation by showing how it is reasonably related to preventing the public from being deceived and misled. Any regulation that either prohibits or limits constitutionally protected commercial speech is subject to greater constitutional scrutiny than a regulation that merely requires additional disclosure be added to the commercial speech. In other words, the state has less of a burden to show the need for the regulation if the regulation does not prohibit or limit but instead requires that those using the titles add additional disclosures. This analysis also would apply to use of similar titles in other technical professions. Cited herein: K.S.A. 74-7001; K.S.A. 2001 Supp. 74-7003; 74-
7005; U.S. Const., 1st Amend.

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Dear Mr. Peterson:

You inquire whether it is unlawful for an individual who is licensed to practice geology in our State to use the titles "licensed geologist," "registered geologist," or "professional geologist."

Use of the title "geologist" is considered protected in Kansas because the practice of unlicensed geology has been made unlawful.1 However, use of a title, whether in a commercial or social setting, constitutes commercial speech,2 so at issue is whether the First Amendment3 protections afforded commercial speech limit the Board's authority to ban or restrict the use of these titles.

The question of how a professional may identify himself to the public in commercial speech has come before the United States Supreme Court. In Peel v. Attorney Registration Disciplinary Commission of Illinois,4 the Illinois Bar sought to discipline an attorney who truthfully advertised that he was certified by the National Board of Trial Advocacy. In a split decision that found a distinction between advertising that is inherently misleading5 and advertising that is only potentially misleading, the Court concluded that an attorney's use of the designation "Certified Civil Trial Specialist By the National Board of Trial Advocacy" was not inherently misleading and, for this reason, the State could not completely ban Peel's advertising without running afoul of the First Amendment. The Court, however, agreed that the advertising was "potentially misleading" and held that while the state may prohibit actually or inherently misleading speech entirely, potentially misleading speech can be restricted only as reasonably necessary to prevent the perceived deception.6 In other words, the restrictions must advance a legitimate state interest, such as a state's regulation of a profession, and the interference must be in proportion to the interests served.7

Applying these tenets to your question, it is our opinion that although there are at present no restrictions in the statutes or regulations which would make a licensed Kansas geologist's use of the titles "licensed geologist," "professional geologist," or "registered geologist" unlawful, the Board may impose restrictions that meet constitutional muster if it finds that the titles in question are misleading. If the Board finds the titles inherently misleading, the titles may be banned entirely; in the alternative, if the titles are found to be potentially misleading, the Board may enact measures short of a total ban to prevent the deception or confusion so long as the restrictions are tailored to accomplish the goal of relieving the public's deception.8 In regard to the second part of your question about other licensed professionals' use of titles, the same analysis would apply.

In sum, use of the titles in question involves commercial speech that is protected by the First Amendment because the use concerns lawful activity that has not been found to be misleading. If use of the titles is found to be misleading, the Board may adopt a regulation to impose restrictions on such use but any such regulation will be subject to constitutional scrutiny that requires that the state justify the need for such regulation by showing how the regulation is reasonably related to preventing the public from being deceived or misled. Any regulation that either prohibits or limits constitutionally protected commercial speech is subject to greater constitutional scrutiny than a regulation that requires that additional disclosure be added to the commercial speech.9 In other words, the state has less of a burden to show the need for the regulation if the regulation does not prohibit or limit but instead requires that those using the titles add additional disclosures. This analysis also would apply to use of similar titles in other technical professions.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

L. Guen Easley

Assistant Attorney General

CJS:JLM:LGE:jm