10/503 DECISION Meeting 12 October 2010Complaint 10/503 Complainant: S. Tobin - Orthodontic Centre Advertisement: Courtney Orthodontics on ElmiraComplaint: The newspaper advertisement for Courtney Orthodontics on Elmiraappeared in the Manawatu Standard. It was in an advertorial style and featuredpictures of the premises and text about the services offered.Complainant, S. Tobin, said:“I wish to make a complaint about the enclosed Newspaper Advertising feature datedSaturday 28 August 2010 in the Manawatu Standard.I will address the offending paragraphs in order and for ease of reference havenumbered them in the article. The numbering in the article matches the letter.1. The entire advert is presented in a style which infers it is an editorial not an advertisement. a) This breaches Advertising Code of Ethics - Rule 1 - Identification -; when an advertisement appears in a medium which contains news or editorial matter, it must be presented so that it is readily recognizable as an advertisement.2. The opening paragraph states "More than 4 years have passed since Courtney Orthodontics opened its doors at No.9 Elmira Avenue and took its unique concept of orthodontic treatment to new heights. Its the concept that puts the feelings of the patient first by eliminating the threatening hospital atmosphere that most people associate with all aspects of dental treatment". a)It is NOT a unique concept to put patients first. All medical practitioners put patients feelings first. Its widely accepted as one of the main industry principles in the Dental Council of New Zealand Code of Practice. These are not "new heights". Breach of Advertising Code of Ethics - Rule 2 - Truthful Presentation Breach of Therapeutic Services Advertising Code - Principle 1, 2, 3
2 10/503b)What is wrong with hospitals? This statement denigrates hospitals and promotesfear and skepticism of hospitals and dental surgeries. Breach of Advertising Code of Ethics - Rule 2-Truthful Presentation, Rule 6- Fear, Rule 8 - Denigration. Breach of Code for Comparative Advertising - Guidelines a, b, c, d, e, i Breach of Therapeutic Service Advertising Code - Principles 1, 2, 33. "Lets be honest" he adds "Anything to do with dentistry doesnt give you the warm fuzzies". a)This statement plays on fear as a Specialist Orthodontist doesnt even find dentistry appealing. We should be positively promoting all aspects of dentistry to the public. Breach of Advertising Code of Ethics - Rule 6 - Fear, Rule 8 - Denigration Breach of Code for Comparative Advertising - Guideline - a, b,c,d,e,i. b)This is an opinion and not based on any fact whatsoever. Breach of Advocacy Advertising Code of Ethics - Rule 11 - Advocacy Advertising4. "We dont look like a hospital. We dont even smell like a hospital. There is no fear factor". a) Again this is propagating a fear of attending a hospital. Many orthodontic patients attend the hospital before visiting an orthodontist and are referred back to the hospital for extractions or surgery. Are they supposed to be fearful of visiting the hospital? Breach of Code for Comparative Advertising - Guidelines a, b, c, d, e, g h, I and j Breach of Advertising Code of Ethics Rule 2 - Truthful Presentation, Rule 6 - Fear, Rule 8 - Denigration, Rule 11 - Advocacy Advertising Breach of the Therapeutic Service Code – Principles 1, 2 35."We have created an environment that is as close to a safe, caring, homeenvironment as practicable, but one that maintains the highest professionalstandards necessary for a state -of- the-art orthodontics facility". a) What is state-of-the-art about this practice ? A homely decor is not state of the art. M. Courtney is still using 2D indirect digital Xray technology and a computer system which is not cutting edge or state of the art, he is still using a paper notes system. He is not even a state of the art practice within a small city like Palmerston North let alone the whole region he is advertising to. Breach of Advertising Code of Ethics - Rule 2- Truthful Presentation Breach of Therapeutic Service Advertising Code Principle 36.M. Courtney says that the next part of the story proves the adage that threeattempts are needed to build the perfect house.a) This is an inference that M. Courtney now has the perfect practice. This is a claim he cannot make. Indeed the Heading of the article Long Path to Perfection further infers this. The story "proves" no such thing. Breach of Advertising Code of Ethics - Rule 2 - Truthful Presentation Breach of Therapeutic Services Code - Principle 37.Due to the rapid growth of the practice in 2001 he began the planning of thepurpose built orthodontic facility now known as the Orthodontic Centre.
3 10/503 a) This is a lie. As the owner of the Orthodontic Centre I can confirm that M. Courtney has never set foot in the Orthodontic Centre let alone made any planning as to its development. As M. Courtney states in his opening paragraph "more than four years have passed since Courtney Orthodontics opened its doors". I can confirm that the Orthodontic Centre bears no resemblance to the shell of a building he left nearly 5 years ago. As any practitioner will tell you, the building which houses a practice is not the practice itself. The Practice is far more than a shell of bricks and mortar. The inference in this statement is that M. Courtney can somehow claim responsibility for the success of the Orthodontic Centre. This is completely untrue. Breach of Code for Comparative Advertising - Guidelines a,b,c,d,e,g,j Breach of Advertising Code of Ethics - Rule 2 - Truthful Presentation, Rule 8 - Denigration Breach of Therapeutic Service Code - Principle 3 b) M. Courtney may have instructed a builder, although this is also untrue as M. Courtney never owned any part of the building. He was only ever a tenant. The landlord was a separate company entirely that M. Courtney had no part of. The landlord owned the building. M. Courtney likes to think he played an integral part in the building process but really it was built by a Development Company, utilising its funds and he was merely a paying tenant once building was completed. Breach of Advertising Code of Ethics - Rule 2 - Truthful Presentation Breach of Therapeutic Service Code - Principle 38.And finally when the decision was made to move to an elegant Californianbungalow at 9 Elmira Avenue, there had to be a refit that met all the needs of theexpanded practice. a) There was no expansion to the practice. This is untrue. When M. Courtney opened in Elmira he moved to a practice with reduced, floor space, surgeries and reduced staff numbers. The practice had not expanded in any way. The fact is he decided to shift premises and in doing so formed a smaller practice not an expanded one. Breach of Advertising Code of Ethics - Rule 2 - Truthful Presentation Breach of Therapeutic Service Code - Principle 39."The innovations I had built into the Church Street clinic (the Orthodontic Centre)including the computerisation and popular overhead televisions, have been replicatedand improved At Elmira" M. Courtney says. a) This is a direct and unfair comparison. He is claiming his facilities are better than those at the Orthodontic Centre. M. Courtney left nearly 5 years ago. I can confirm that the Televisions and the Computer System are completely different. M. Courtney is making claims that are both untrue and unfair. Furthermore the statement is contradictory how can you improve on something if you are merely replicating it. Breach of Code for Comparative Advertising - Guidelines - a,b,c,d,e,g,l,j Breach of Advertising Code of Ethics - Rule 2 - Truthful Presentation, Rule 8 - Denigration, Breach of Therapeutic Service Advertising Code - Principles 1,2,310.His staff wear casual but chic uniforms that represent a departure from theintimidating "dental gown".
4 10/503 a) Once again this fear element which denigrates the industry. What is intimidating about a gown? Nothing. There is a reason people wear gowns. Its called Cross Infection Control. Breach of Code for Comparative Advertising - Guidelines a,b,c,d,e,g,l,j Advertising Code of Ethics - Rule 2 - Truthful presentation, Rule 6 - fear, Rule 8 - Denigration, Rule 11 Advertising Advocacy Breach of the Therapeutic Services Advertising Code Principles 1,2,311. "I dont run a multi chair practice with multiple auxiliaries carrying out the treatment" a)This is not true. M. Courtney does run a multi chair practice. His practice comprises 4 chairs. Thus multi chair. Im unsure what is wrong with a multi-chair practice and M. Courtney does have one! Breach of Advertising Code of Ethics - Rule 2 -Truthful Presentation Breach of Therapeutic Service Advertising Code - Principle 3 b)This statement is denigrating to Auxiliaries. What is wrong with being seen by an auxiliary? The inference is that they are somehow inferior. The most common pathway for Auxiliary training is, New Zealand Dental Assisting Course (9 months). The AO A online Orthodontic Auxiliary Course, The hands on component of the AOA course, relevant police certificates, certificate of good standing and medical evidence of Hep. B status etc. Once all this is completed and obtained they may then apply for Registration with the Dental Council of New Zealand. As you can see this is a highly qualified position in Orthodontics. If the person is qualified and deemed competent by the Dental Council of New Zealand, who is M. Courtney to claim otherwise? Breach of Code for Comparative Advertising - Guidelines a,b,c,d,e,g,l,j Breach of Advertising Code of Ethics - Rule 2 - Truthful Presentation, Rule 6 - Fear, Rule 8 Denigration, Rule 11 - Advocacy Advertising. Breach of Therapeutic Services Code - Principles 1, 2 3 I would have to say that the general thread and tone of voice of this advert is NOT one of advertising the positives and merits of M. Courtneys practice. Instead it raises issues of fear, denigration and snipes at whole groups of other professionals namely Dentists and Orthodontic Auxiliaries. Some of the statements are simply untrue and completely made up. Especially when directly comparing his current practice to the Orthodontic Centre. A practice hes never been too and certainly never planned. What an odd article.”In further correspondence, S. Tobin, said:“Please find enclosed the identical advert from the above company placed in TheTribune on September 15 2010.The wording is identical to the original advert I complained about and so my perviousletter is fully applicable to this article also. What concerns me is that this has beenpublished twice now and both times as an editorial and in no way is it marked as anadvert.
5 10/503Courtney Orthodontics on Elmira advert was on page 11. On page 14 there isanother full page advertorial with the heading YOUR BODY enclosed for yourreference. This is clearly marked in the top right hand corner as A TribuneAdvertising Feature.”The Chairman ruled that the following provisions were relevant:Code of Ethics Rule 1: Identification - Advertisements should be clearly distinguishable as such, whatever their form and whatever the medium used; when an advertisement appears in a medium which contains news or editorial matter, it must be presented so that it is readily recognised as an advertisement. Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representation, abuses the trust of the consumer or exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is not considered to be misleading). Rule 6: Fear – Advertisements should not exploit the superstitious, not without justifiable reason, play on fear. Rule 8: Denigration – Advertisements should not denigrate identifiable products or competitors. Rule 11: Advocacy Advertising - Expression of opinion in advocacy advertising is an essential and desirable part of the functioning of a democratic society. Therefore such opinions may be robust. However, opinion should be clearly distinguishable from factual information. The identity of an advertiser in matters of public interest or political issue should be clearCode for Comparative Advertising Guideline (a): Comparative advertising should be factual and informative and should offer a product or service on its positive merits. The intent and connotation of the advertisement should be to inform and not to discredit, disparage or attack competitors, competing products or services directly or by implication. Guideline (b): Comparative claims should be unambiguous and clearly understandable so that there is no likelihood of the consumer being misled as a result of the comparison. Guideline (d): The competition should be fairly and properly identified but never in a manner or tone of voice that degrades the competitive product or service.
6 10/503Therapeutic Services Advertising Code Principle 2 - Advertisements should observe a high standard of social responsibility particularly as consumers rely on therapeutic services for their health and well-being. Principle 3 - Advertisements should not by implication, omission, ambiguity or exaggerated claim mislead or deceive or be likely to mislead or deceive consumers, abuse the trust of or exploit the lack of knowledge of consumers, exploit the superstitious or without justifiable reason play on fear.The Advertiser, Courtney Orthodontics on Elmira, said:“Addressing Point 1 -It is clear that I am advertising my services. The advertisement was written to give anhistorical perspective as well as advertise what I do as an orthodontist and how myconcept of practising has evolved over time.In the last paragraph of the complaint letter S. Tobin freely admits that it is anadvertisement –"I would have to say that the general thread and tone of voice of this advert is NOTetc..."In any event, I gave the information to the Manawatu Standard and the TribuneNewspapers and they rewrote it for publication.Addressing Point 2 –This is a unique concept of orthodontic treatment for me. I describe the pathway orevolution of my practice design. This is my third attempt and I state-"I reversed roles and looked at design through the eyes of the patient and caregiver"and hence the design revolved around their needs and wants. The major factor wasto eliminate their fear of dentistry. What led the design brief for my first project wasupgrading older premises so that two orthodontists could practice comfortably andthe second revolved around increasing the size to cater for the rapid growth of bothour practices (i.e., Trevor Leighs and my own Practice).Point a)- I am unsure as to why S. Tobin makes this statement and refers to allmedical practitioners putting patients feelings first and then refers to the DentalCouncil of New Zealand Code of Practice saying -" Its widely accepted as one of themain industry principles "I have not intimated in any way that other health professionals dont put the feelingsof their patients first.Point b)- "by eliminating the threatening hospital atmosphere that most peopleassociate with all aspects of dental treatment."
7 10/503This statement does not denigrate nor promote fear and skepticism of Hospitals orDental Practices. It merely acknowledges that a lot people are fearful of hospitals anddentistry and my practice was designed specifically to remove as many of thesebarriers as possible (Appendix 1).Addressing Point 3 –"Lets be honest anything to do with dentistry doesnt give you the warm fuzzies"This is a truthful statement about how I personally feel about dentistry. My statementhumanises dentistry and breaks down the barrier between patients and the providerof dental services. I am merely empathising with the public and acknowledging that Iunderstand this. My article states I have spent 29 years in dental health activelypromoting it. The whole article is about promoting orthodontics and dentistry in a verypositive manner.Addressing Point 4 –"We dont look like a hospital. We dont even smell like a hospital. There is no fearfactor."These are statements of fact. In no way is it propagating fear of hospitals. The designof the practice does exactly the opposite it alleviates fear. Fear of dentistry and fearof hospitals is very real and acknowledged by health providers. (Appendix 1)Point a) – S. Tobin says "Many orthodontic patients attend the hospital beforevisiting an orthodontist and are referred back to the hospital for extractions orsurgery. Are they supposed to be fearful of visiting the hospital"?S. Tobins point is interesting as I have very few patients who attend the dental unit atthe hospital and who I subsequently refer back for extractions and surgery. Thehospitals general policy is that they will not undertake extractions or surgery fororthodontic patients as there is no funding for this except in special circumstances.My opinion is that yes they are probably fearful of the dental unit and the hospitalbecause they associate hospitals with pain etc. This is well acknowledged.(Appendix 1)Addressing point 5 –"We have created an environment that is as close to a safe, caring, homeenvironment as practicable, but one that maintains the highest professionalstandards necessary for a state-of the-art orthodontics facility".S. Tobins comments are baseless. This is entirely factual. She has never enteredthe building. I refer you to my website www.courtneyortho.co.nz and to the websitewww.mdcabinetry.co.nz to view my practice. The photographs of cabinetry presenton the Medical Dental cabinetry home page are taken from my practice. You canfurther view my practice under the Tab (Past Projects) and you can see from thequality of fitments this is state of the art. My practice is computerized all of whichhave been recently renewed at the end of 2009. My Practice is also an NZAO (NewZealand Association of Orthodontists) Accredited practice. This is a voluntary
8 10/503competency requirement for Specialist Orthodontists. This gives patients andcaregivers the assurance that the treatment they are receiving and the facilities are ofthe highest standard. I have also enclosed commentary from Alastair Stockdill anexpert in dental radiography and medical imaging to refute S. Tobins opinionregarding 2D digital radiography (Appendix 2). The implication she is making is foran Orthodontic Practice to be state-of-the-art it should have a CBCT machine costingup to $350,000 which is capable of taking 3 dimensional images. If this were the case99% of all Orthodontic practices would not be state of the art.I also enclose this recent Editorial of David Turpin, Editor in Chief of The AmericanJournal of Orthodontics and Dentofacial Orthopaedics. The gist of the editorialregards the recent introduction of cone beam radiography (i.e., 3 dimensionalimaging) as an adjunct to orthodontic diagnosis. The relevant statements are-“As the efforts to provide appropriate guidelines for CBCT imaging continuesinternationally, preliminary reviews show that the current literature does not yetsupport the universal use of this technology in all patients. With this in mind and untilthe guidelines are completed, orthodontists should use CBCT cautiously and alwaysask themselves whether the clinical question can be answered by conventionalradiography. Radiographs should only be taken when justified clinically. " (Appendix3)Addressing Point 6 –"Mike says that the next part of the story proves the adage that three attempts areneeded to build the perfect house."I am not comparing myself to anybody else I am merely stating that I have been theinitiator and driver behind all three projects and along the way my philosophy ofpractice has evolved and finally I have achieved what is the perfect practice for me.Addressing point 7a and b –"Due to the rapid growth of the practice in 2001 he began the planning of thepurpose built orthodontic facility now known as the Orthodontic Centre".This is entirely factual. S. Tobin wasnt even in the country or known to me at thistime. She appears to have gone off on a tangent. It is plainly obvious that I am talkingabout the design and build of the building at 499 Church Street up until I shiftedpremises to Elmira Avenue. I enclose corroborating statements from N. Courtney ofCourtney Architects who worked closely with me through the whole project.(Appendix 4)I also enclose the advertorial released by T. Leigh and myself when the buildingopened. It was known as the Specialist Orthodontic Centre at this time. Thisadvertorial was copied from evidence put forward by N and S Tobin ASA complaintnos 8/352 and 8/362 Appendices 11 and 14 (Appendix 5). I also enclosephotographs of the completed practice taken in 2004 (Appendix 6). Comparativephotographs of the Orthodontic Centre on www.mdcabinetry.co.nz under the Tab -Past Projects - The Orthodontic Centre (The OC) show the design and joinery to beidentical.
9 10/503Addressing Point 8 –"And finally, when the decision was made to move to an elegant CalifornianBungalow at 9 Elmira Avenue, there had to be a refit that met all the needs of theexpanded practice yet retained the buildings attractive features."S.Tobin has taken this statement out of context. I am merely saying that part of therequirements for the design of my new premises was to accommodate the growth ofmy practice, which had occurred since T. and I had shared the rooms at 332Broadway Ave and at 499 Church Street. Practice is a generic term. My expandedpractice relates to the numbers of patients I was treating and that had increasedsince practising at 332 Broadway Ave and this had to be factored into the designprocess. It has nothing to do with reduced size of premises or staff numbers etc. asshe makes out. Remembering the building I designed at 499 Church Street was fortwo specialist orthodontists, my new practice at Elmira Avenue was designed for onespecialist orthodontist.Addressing Point 9 –"The innovations I had built into the Church Street clinic, including thecomputerization and the popular overhead televisions, have been replicated andimproved at Elmira", Courtney says."Once again S. Tobin has taken this out of context. If the article is read in its entirety.It is obvious to the reader that I was involved fully with the design and innovation ofthe Church Street premises up until I moved to Elmira Avenue, over four and a halfyears ago. There is no comparison with the Orthodontic Center. I have no idea whatthey have achieved since I moved to Elmira Avenue. As S. Tobin admits I left nearly5 years ago. The comparison I made was between Elmira and 499 Church Streetbefore it became the Orthodontic Center. The time lines are obvious.S. Tobin has manipulated the statement "The innovations I had built into the ChurchStreet clinic, including the computerization and the popular overhead televisions,have been replicated and improved..."A lot of my innovations including the overhead televisions, computerisation, digitalphotography, digital radiography, waiting room cameras etc were replicated. Some ofthe cabinetry design was replicated and improvements were made. For instance theoriginal surgery cabinetry had aluminium draw openers which had been a problembecause the edges were sharp and would catch clothing as well as score the back ofthe operating stools. The Elmira cabinetry was fitted with user-friendly handles. Mynew cabinetry also features two-way opaque glass and cupboards so that sterilisedinstruments can be put away at any time from the sterilising bay without entering thesurgery area and disrupting treatment. See comparative photos (Appendix 7).Addressing Point 10 –"His staff wear casual but chic uniforms that represent a departure from theintimidating dental gown".
10 10/503S. Tobin is offering her opinion, which is not based in fact. Some people do findgowns to be intimidating. Hence my staff wear a much more friendly form of uniformto minimize childrens fears or phobias. Their uniforms also minimize the possibility ofcross infection (Appendix 1).Addressing Point 11 –"I dont run a multi-chair practice with multiple auxiliaries carrying out the treatment.My focus is on providing care personally to my patients."This statement is true. S. Tobin is deliberately misleading the ASA. The definition ofa multi chair practice with multiple auxiliaries carrying out the treatment under thesupervision of the orthodontist is one where all the chairs are available for treatmentsat the same time hence 3,4,5, or more patients are booked in at the same time andthey occupy all the chairs. The Orthodontist supervises the auxiliaries who undertakea number of treatment tasks, which they are permitted to do according to their scopeof practice. This allows the Orthodontist to see many more patients per day. S. Tobinis well aware that I do not practice in this way. They have taken a particular interestin how I practice. I refer you to the evidence they put forward re Complaint 08/352and 08/362 (Appendix 7). In particular, they presented from court documents mysworn affidavit (Appendix 8) as to how I practise as well as my appointment diariesamongst other evidence also showing this. They make the statement page 3 of thecomplaint 08/352 –"It is somewhat bemusing that M. Courtney has spent over 2 years in court with the residentsof the street where his practice is situated proving that his practice will have little or nosignificant impact on the street environment due to low traffic flow and patient attendances."They are well aware that my right to practice in Elmira Avenue was challenged by theresidents in the High Court where they won. This decision was revoked first by anRMA Commission. The initial decision of the High Court was then challenged byourselves and the Palmerston North City Council in the Court of Appeal. The HighCourt decision was overturned. One of the major points the residents of the streetmade was that my rooms had been designed to run a multi chair practice withmultiple auxiliaries and hence the numbers of patients treated would far exceed theoff street car parking that was made available. The three Appeal Court Judgesdismissed this presumption on the sworn evidence that was presented. The residentsstill unhappy with this decision sought leave to appeal to the Supreme Court. TheSupreme Court summarily dismissed their appeal.I enclose the decision of the Court of Appeal and their comments as to how I practise(Appendix 9 points 29 -44)."I dont run a multi-chair practice with multiple auxiliaries carrying out the treatment.My focus is on providing care personally to my patients."The above information in my advert was to reassure the residents of Elmira Avenueas well as to inform prospective patients as to how I practise. My statement doesntdenigrate orthodontic auxiliaries. All orthodontists choose the role that the orthodonticauxiliary will undertake in their practice. Appendix 10
11 10/503This statement from Winifred Harding was used in the Court Proceedings to explainhow the role of an Orthodontic Auxiliary varies in Orthodontic practices. At the timeshe wrote this she was President of the New Zealand Association of Orthodontists.I do not "snipe" at whole groups of other professionals. I do not understand how shecan interpret this from my advertorial. My article is very supportive of dentists,dentistry and orthodontics. As I said in my opening statement - It is clear that l a madvertising my services. The advertisement was written to give an historicalperspective as well as advertise what I do as an orthodontist and how my concept ofpractising has evolved over time.DeliberationThe Complaints Board carefully read all correspondence in relation to the complaint,and viewed a copy of the newspaper advertisement. It noted the issues raised by theComplainants in relation to the advertisement.The Chairman directed the Complaints Board to consider the advertisement withreference to Rules 1, 6 and 8 of the Code of Ethics, Guidelines (a), (b), and (d) of theCode for Comparative Advertising. This required the Complaints Board to considerwhether or not the advertisement was clearly distinguishable as an advertisement;whether the advertisement contained anything that played on fear and whether theadvertisement denigrated any identifiable competitors. Guidelines (a), (b) and (d) ofthe Code for Comparative Advertising required the Complaints Board to considerwhether the advertisement made any direct comparative claims, did not mislead theconsumer as a result of the comparison, and that the competition should be fairly andproperly identified but never in a manner that degrades the competitive product orservice.The Complaints Board was also required to consider the advertisement underPrinciples 2 and 3 of the Therapeutic Services Advertising Code. Principle 2 of thisCode required the Complaints Board to consider whether the advertisementobserved a high standard of social responsibility, particularly as consumers rely ontherapeutic services for their health and well-being. Principle 3 of the TherapeuticServices Advertising Code also states that no advertisement should by implication,omission, ambiguity or exaggerated claim mislead or deceive or be likely to misleador deceive consumers, nor should it abuse the trust of or exploit the lack ofknowledge of consumers or exploit their fear.As a preliminary matter, the Complaints Board ruled that Rules 2 and 11 of the Codeof Ethics were not relevant to the matter before it. The Complaints Board agreedthat the issues raised in complaint about truthful presentation were covered byPrinciple 3 of the Therapeutic Services Advertising Code. In addition, it confirmedthat the advertisement was for an orthodontic practice and promoted these services.In this context, Rule 11, which covered advocacy advertising, did not apply to theadvertisements that were the subject of this complaint.As in all cases, the Complaints Board said that where a claim in an advertisementwas challenged by a complainant, the onus fell on the Advertiser to provide theComplaints Board with substantiation of that claim.In Point 1, the Complainant found that the advertisement was presented in a waythat suggested it was editorial copy. Rule 1 of the Code of Ethics required that
12 10/503advertisements should be clearly distinguishable as such, and when anadvertisement appeared in a medium which contains news or editorial matter, it mustbe presented so that it is readily recognised as an advertisement. Looking at thenewspaper advertisement, the Complaints Board concurred with the Complainant,that the advertisement was not readily recognisable as an advertisement and, assuch, it was in breach of Rule 1 of the Code of Ethics. The Complaints Board ruledto uphold the complaint with regard to this issue.In Point 2(a), the Complainant was of the opinion that the following statement wasmisleading, and did not observe a high standard of social responsibility: "More than 4 years have passed since Courtney Orthodontics opened its doors at No.9 Elmira Avenue and took its unique concept of orthodontic treatment to new heights."The Complainant was of the opinion that the claim in Point 2(a) was of adisingenuous nature, and misleading to consumers, because the concept of puttingthe patient first was not unique. In their response, the Advertiser stated that theadvertisement was promoting their new practice design that was designed toaccommodate the “needs and wants” of patients and to help “eliminate their fear ofdentistry” therefore, in that context the advertisement was truthful.The Complaints Board noted that advertising, by its very nature, was promotional,and it was the view of the Complaints Board that the advertisement was doingexactly that insofar as it promoted the quality of the service that was available at theirpractice, and the awareness the Advertiser had toward patients’ possiblesensitivities. The Complaints Board did not consider that the statement containedanything that breached the high standard of social responsibility required underPrinciple 2 of the Therapeutic Service Advertising Code. Nor was it of the opinion thatthat the statement contained claims which was misleading or likely to mislead theconsumer. As such, the Complaints Board ruled that the advertisement had notbreached Principle 3 of the Therapeutic Services Advertising Code.In Point 2(b) the Complainant was of the view that the following statementdenigrated hospitals, and promoted a fear of hospitals and dental surgeries: “Its the concept that puts the feelings of the patient first by eliminating the threatening hospital atmosphere that most people associate with all aspects of dental treatment”The Complaints Board noted the response from the Advertiser that they wereemphasising their awareness and understanding that visits to hospital and dentists’surgeries can be an unpleasant experience for many people, rather than imply thatother health professionals did not put their patients first. The Advertiser was also ofthe opinion that nothing in the above statement promoted a fear about, orencouraged scepticism of, hospitals, but rather was an acknowledgment of that manypeople were fearful and anxious of dentists and hospitals – a point they substantiatedwith research that attested to the claim that many patients do hold such fears.The Complaints Board was of the opinion that rather than promoting the fear manypeople had of dentists, the Advertiser had attempted to reduce the anxiety peoplemay have of dentists by acknowledging that apprehension in their advertisement, nordid it feel that the Advertiser had promoted fear of hospitals and dental surgeries, orthat the statement in any way denigrated the services provided by hospitals. The
13 10/503Complaints Board there also of the opinion that the advertisement made nocomparative claims between the services offered by the Advertiser and othercompeting orthodontic practices or associated health professions,. Therefore, theComplaints Board found that the advertisement had not breached Rules 6 or 8 of theCode of Ethics; Guidelines (a), (b) or (d) of the Code for Comparative Advertising,nor did the advertisement breach Principles 2 or 3 of the Therapeutic ServicesAdvertising Code.In Point 3, the Complainant was of the opinion that the statement: “Anything to dowith dentistry doesnt give you the warm fuzzies", promoted fear of dentistry, andnoted where the Advertiser, as a Specialist Orthodontist, found dental proceduresunpleasant. The Complainant felt that such an admission, especially from an industryprofessional, portrayed the dentistry in a negative light.In their response, the Advertiser acknowledged that the statement was indeed, atruthful declaration of how they personally felt about dental procedures, but statedtheir personal acknowledgment was given in order to empathise with those peoplewho felt similarly, rather than amplify and confirm any fears other people may have.The Complaints Board concurred with the Advertiser that the statement noted inPoint 3, contained in the advertisement was intended to reduce the power dynamicbetween patient and practitioner and to show empathy with those patients who mayfeel similarly, rather than exploit any existing fear that some patients may have ofdental procedures.The Complaints Board was also of the opinion that nothing contained in thestatement at Point 3 of the advertisement, denigrated the profession of dentistry, norwas it making comparative claims about other health professionals. As such, theadvertisement did not breach Rule 6 or 8 of the Code of Ethics, or Guidelines (a), (b)or (d) of the Code for Comparative Advertising.In Point 4, the Complainant felt that the following statement encouraged a fear ofhospitals: “We dont look like a hospital. We dont even smell like a hospital. There is no fear factor".The Complaints Board noted the research provided by the Advertiser to substantiatethe claim that many patients do suffer from a fear of hospitals and dentists and thatthose fears could be triggered by people wearing white coats or the smell ofdisinfectant or anaesthetic. Similarly to their findings in Point 2(b), Complaints Boardwas of the opinion that - rather than exacerbating the fear of dentists and hospitals -the Advertiser had attempted to reduce the anxiety people may have of dentists andhospital environments, by acknowledging that apprehension in their advertisement.The Complaints Board also noted the research provided by the Advertiser thatsupported the fact that the some people were anxious and phobic about dentalprocedures. Therefore, the Complaints Board was of the opinion that theadvertisement was prepared with a high standard of social responsibility. Similarly,the Complaints Board also found that the advertisement was not likely to misleadconsumers, and the acknowledgement of the fear some patients have of the dentistand of hospitals, did not exploit peoples’ fear of dentistry or hospitals, nor did itdenigrate the dentistry or associated health professions. Accordingly, the ComplaintsBoard found that the advertisement had not reached the threshold to effect a breachof Guideline (a),(b) or (d) of the Code for Comparative Advertising, nor did it breach
14 10/503Rules 6 or 8 of the Code of Ethics, or Principles 2 or 3 of the Therapeutic ServicesAdvertising Code.In Point 5, the Complainant found the following statement was untruthful andmisleading: "We have created an environment that is as close to a safe, caring, home environment as practicable, but one that maintains the highest professional standards necessary for a state-of- the-art orthodontics facility".The Complainant also took issue with the Advertiser’s assertion that theirs was a“state-of-the-art orthodontics facility” because the x-ray technology used by CourtneyOrthodontics was not the most advanced x-ray technology available. In theirresponse, the Advertiser provided a supporting article that stated that currentresearch into the clinical use of more advanced x-ray technology - known as CBCTscans – found that the new technology was not suitable for all patients.The Complaints Board was of the view that the statement at Point 5 was one of atechnical nature and that the Advertiser’s claim that their practice was “state-of-the-art” was not compromised or incorrect because they did not have the most up-to-datex-ray technology. Considering the likely consumer take-out of the statement at Point5, the Complaints Board felt that Courtney Orthodontics had promoted itself as aspecialist orthodontic practice that would provide customers with high quality servicein a caring environment, irrespective of what iteration of x-ray technology the practiceused.Noting that Principle 3 of the Therapeutic Services Advertising Code, did not allowadvertisements to contain anything that would mislead or deceive, or would be likelyto mislead or deceive the consumer, the Complaints Board was of the view that theadvertisement contained nothing that would effect a breach of that Code.Turning to Point 6, the advertisement stated “Mike says that the next part of the story proves the adage that three attempts are needed to build the perfect house.”The Complainant was of the view that the statement above implied that theAdvertiser had a perfect practice. In their response, the Advertiser stated that theanalogy was simply illustrative of the journey and effort they had made in theirbusiness, refining their various practices until they had reached, what theyconsidered was the “perfect practice.” The Complaints Board considered thestatement and concurred with the Advertiser, that there was no comparative claiminherent in the above statement, rather the statement was aspirational and of asomewhat triumphal nature that referred to the Advertiser attaining what theyconsidered, the perfect practice for them. Consequently, the Complaints Board didnot find it likely that the consumer would be misled or deceived by the statementcomplained about in Point 6 of the advertisement. Therefore, the ComplaintsBoard found that there was no breach of Principle 3 of the Therapeutic ServicesAdvertising Code.In Point 7(a), the Complainant was of the view that the statement that follows wasuntrue because the Advertiser had never been on the premises and, therefore,
15 10/503any claim by the Advertiser that attributed the success of the practice to their inputwas untrue: “Due to the rapid growth of the practice in 2001 he began the planning of the purpose built orthodontic facility now known as the Orthodontic Centre.”In their response, the Advertiser stated the advertisement referred the design andbuild of the previous orthodontic facility they had before the Complainant’spractice had moved there, and provided documentation to show their involvementin that area to support their claim. After examining the response, the ComplaintsBoard felt that the Advertiser had substantiated that claim. The Complaints Boardwas also of the view that the Advertiser was not making a direct comparativeclaim between their practice and the practice of the Complainant, rather thestatement at Point 7(a) was a comment about the Advertiser’s old practice beforethe Complainant’s practice - now in the same building as the Advertiser’s beforethe moved - and that statement was not misleading or likely to deceive theconsumer, nor was the advertisement an attempt to denigrate the Complainant’spractice. Therefore, the Complaints Board found that the advertisement did notbreach Guidelines (a), (b) or (d) of the Code for Comparative Advertising, orPrinciple 3 of the Therapeutic Services Code.In Point 7(b), the Complainant also found that the statement above to be untruebecause the Advertiser used to be a tenant at the old building now called theOrthodontic Centre; had not owned any part of the building, and that the designand rebuilding of the existing premises was carried out by a developmentcompany which was paid for by the building’s owner. In their response, theAdvertiser stated that they had been involved in the design and build of theOrthodontic Centre prior to shifting to the new premises and the Complaints Boardreferred back to the documentation provided by the Advertiser to substantiatetheir claim at Point 7(a) and was of the view that the evidence provided wasenough to substantiate their involvement in the design of the old premises.Accordingly, the Complaints Board was of the opinion that the advertisement didnot contain anything that would affect a breach of Principle 3 of the TherapeuticServices Advertising Code.In Point 8 the Complainant found that the following statement was misleadingbecause the Advertiser had moved to smaller premises that had also had lessstaff. “And finally when the decision was made to move to an elegant Californian bungalow at 9 Elmira Avenue, there had to be a refit that met all the needs of the expanded practice.In their response, the Advertiser was of the view that the Complainant had taken thisstatement out of context and explained that the term “expanded practice” referred tothe increasing number of patients being treated at the new facility, not to the size ofthe premises or the staff numbers. The Complaints Board was satisfied that thewords “expanded practice” contained in the statement at Point 8, did refer to theincreased number of patients being seen by the Advertiser at the new facility, and inthis context, was not misleading. Therefore, the Complaints Board found that theadvertisement had not reached the threshold to effect a breach of Principle 3 of theTherapeutic Services Advertising Code.
16 10/503In Point 9 the Complainant asserted that the Advertiser was making a direct andunfair comparison with the orthodontic facility they had left 5 years ago. Theadvertisement stated: "The innovations I had built into the Church Street clinic (the Orthodontic Centre) including the computerisation and popular overhead televisions, have been replicated and improved At Elmira" Mike says.The Complaints Board concurred with the Advertiser that the comparison complainedabout at Point 9, was between the Advertiser’s new premises on Elmira Avenue, andtheir old premises at 499 Church Street - before it became the site of theComplainant’s practice - and therefore, the Complaints Board found that theAdvertiser had not made any direct comparison between Courtney Orthodontics andthe Complainant’s practice. Instead, the Complaints Board was of the view that thestatement was part of the Advertiser’s promotional pitch about the services theyprovided at their old premises and the improvements they had made to their ownpractice since the shift to the new facility. The Complaints Board was also of theopinion that the statement referred to in Point 9, was not alluding to the technologycurrently used in the Complainant’s dental practice, but the technology that was inplace in the Advertiser’s old premises that has been replicated and improved on inthe new facility. Accordingly, the Complaints Board found that the advertisement didnot contain anything that would effect a breach of Guidelines (a), (b), and (d) of theCode for Comparative Advertising, nor had it breached Rule 8 of the Code of Ethics,or Principles 2 or 3 of the Therapeutic Services Advertising Code.In Point 10, the Complainant was of the view that the statement “Cath and Bex wearcasual but chic uniforms” again played on the fear some patients have of dentists,and as a consequence, portrayed the profession of dentistry in a negative light. TheComplainant noted that the reason dentists and dental staff wore the white gownswas to reduce the risk of cross infection, not with the intention of intimidating patients.The Complaints Board noted the substantiation, previously provided by theAdvertiser, that attested to the fact that previous or indirect experiences even notdirectly associated with dentistry, induced a fear of “white coats and antisepticsmells” in some patients, and that the move away from the traditional white gowns tothe new casual style gowns, was an attempt by the Advertiser to reduce the anxietyof those patients who were intimidated by the tradition garb worn by dentists.Furthermore, the Complaints Board was of the opinion that the Advertiser’sarticulation of their own fear did not denigrate the dental profession, nor did it play onthe fear some patients have, but was instead another example of the Advertiserattempting to reduce the power dynamic between patient and professional andhumanise the profession. Therefore, when considering Point 10 of the complaint, theComplaints Board found that the advertisement contained nothing that would effect abreach of Guidelines (a), (b) and (d) of the Code for Comparative Advertising, Rules6 and 8 of the Code of Ethics, or Principles 2 or 3 of the Therapeutic ServicesAdvertising Code.In Point 11(a) the Complainant was of the view that the statement: “I don’t run a multichair practice with multiple auxiliaries carrying out the treatment. My focus is onproviding care personally to patients.” was misleading, as the Complainant assertedthat the Advertiser’s practice had 4 chairs, and was, by definition, a multi chairpractice. Turning to the Advertiser’s response, the Complaints Board noted that theAdvertiser had provided evidence that documented issues with their application for
17 10/503Resource Consent for the facility. The documentation showed that the facility wasinitially challenged by residents who had presumed that the new facility had beendesigned to run a multi-chair practice and, as such, residents were concerned aboutstreet parking in the area.The Complaints Board noted the protracted litigation that had occurred between theresidents and the Advertiser, and that ultimately, the Court of Appeal had acceptedthat the Advertiser’s statement of “My focus is on providing care personally topatients” meant that only a single orthodontist would operate from the facility. TheComplaints Board was satisfied that the Advertiser had substantiated their claim atPoint 11(a) and ruled that the advertisement did not contain anything that could beconsidered a false or leading misrepresentation, or contained anything that was likelyto mislead or deceive consumers as to the service they would receive as patients atthe Advertiser’s new practice. Accordingly, the Complaints Board found that theadvertisement had not breached Principle 3 of the Therapeutic Services AdvertisingCode.Turning to Point 11(b), the Complainant was of the opinion that the same statementimplied that orthodontic auxiliaries were inferior, and consequently, the advertisementwas also denigrating to those dentists who used auxiliaries. The Complaints Boardnoted in the substantiation provided by the Advertiser that the statement wasprovided to inform patients as to who would be treating them and what they couldexpect from the practice and that while it was normal practice for orthodontists to useauxiliaries, orthodontists chose the role that auxiliaries would undertake.The Complaints Board was of the view that the Advertiser had provided enoughevidence to substantiate the claim that stated “My focus is on providing carepersonally to patients,” and did not feel that the statement denigrated orthodonticauxiliaries. However, the Complaints Board noted that the matter was again, one ofa technical or operational nature that would likely only to be of interest to thosepeople who were part of the profession rather than the lay-person. Assessing theoverall consumer take-out of the advertisement, the Complaints Board was of theopinion that the advertisement did not contain anything that was likely to mislead ordeceive the consumer about the services provided by the Advertiser, and was also ofthe view that the advertisement had met the high standard of responsibility requiredunder Principle 2 of the Therapeutic Services Advertising Code. As such, theadvertisement did not reach the threshold to effect a breach of Principle 2 or 3 of theCode. The Complaints Board was of the opinion that no comparative claim had beenmade in the statement at Point 11(a); nor did it consider that the statement containedanything that promoted a fear of, or was disparaging of, orthodontic auxiliaries. Assuch, the Complaints Board found there had been no breach Guidelines (a), (b) an(d) of the Code for Comparative Advertising, or Rules 6 or 8 of the Code of Ethics.However, as indicated earlier in the Deliberation, the Complaints Board ruled theadvertisement was not clearly identified as such and therefore in this regard theadvertisement had breached Rule 1 of the Code of Ethics.Accordingly, the Complaints Board ruled to uphold the complaint (in part).Decision: Complaint Upheld (in part)
18 10/503As a final matter, the Complaints Board reiterated that its focus is on consumercomplaints and the likely consumer take-out from advertisements. Given that many ofthe issues raised in this complaint were of a technical nature, between two competingorthodontic practices, the Complaints Board felt that future complaints between suchcompetitors - especially if those complaints were of a technical nature - would bebetter dealt with by the competitor complaint process rather than by the ComplaintsBoard which generally deals with consumer complaints.