American Board of Cosmetic Surgery v. Medical Board

This case involves an 11-year effort by petitioner, the American Board of Cosmetic Surgery (ABCS), to gain specialty board approval by respondent, the Medical Board of California (Medical Board), so that physicians certified by the ABCS may advertise themselves as board certified in “Cosmetic Surgery,” defined as a subspecialty of medicine and surgery, in one of three areas. Those areas are general cosmetic surgery, facial cosmetic surgery and dermatologic cosmetic surgery. A subspecialty board is a subcategory of a recognized board.

The Medical Board’s authority derives from the advertising provisions of the Business and Professions Code. Business and Professions Code section 651 proscribes false and misleading advertising by health care practitioners licensed by the state. Subdivision (h)(5)(B) of section 651 prohibits physicians and surgeons from representing that they are “board certified” unless the certifying organization (1) is a member board of the American Board of Medical Specialties (ABMS), (2) has requirements equivalent to those of an ABMS member board as determined by the Medical Board, or (3) has completed a postgraduate training program in a specialty or…