Untitled Texas Attorney General Opinion ( 1974 )

JOUN E ,-
-.-
August 21, 1974
The Honorable John F. Boff, Opinion No. H- 375
Execrttive Director.
Texar Board of ~miners in the Fitting Re: Whether name of city
& Dispensing of Hearing Aida with wordr ‘Hearing Aid
1W2 Guadalupe,’ Room 100s Center” or similar wordr
Austin, Texan 787Oi ia misleading advertising
under Article 4566~1.10,(10),
v. T.C. s.
Dear Mr. Boff:
Citing Article 4566-l. 10 (10); V. T. C. S; , .and Rule 10 of the Federal
Trade Commirrion~o Trade Practice.R&er for the Hearing Aid Indurtry,
you l&e acrked:
Doea the name of the commercial ertablirrhmentr.
“Austin Hearing Aid Center, I’or “San Antonio
Hearing Aid Service” comply with said Rule and
Article?
Article 4566-l. 10 is a part of the law adopted in 1969 to regulate
the hearing aid industry (Acts 1969, 61st Leg., Ch. 366, p. 1122). The
Act calls for the creation of. the Texas Board of Examiners in the Fitting
and Mepeneing of Hearing Aida (Article 4566-l. 02) and charges it with
the duty of enforcing the Act (Article 4566-l. 04) including its licensing .’
pr~virrions. Article 4566-1.10, V. T. C. S., li.ets the grounds upon which
the Board may refuse to license an applicant or revoke the license of a
licenree. One such reason is found in subparagraph (10):
(10) The licensee knowingly used or caused or promoted
the use of any advertising matter, promotional*terature,
guarantees, warranty, disseminated or published with
p. 1763
The Honorable John F. Boff page 2 (H-375)
misleading, deceiving or false information. It is
the intention of the Legislature that the provisions .
of this Subsection (IO) and the following Subsection
(11) be interpreted insofar as possible to coincide
with the orders and rules of the Federal Trade
Commission on such subjects.
Rule 10 of the Federal Trade ~ommissiosi Trade Practice Rules
for the Hearing Aid Industry was promulgated July 20, 1965 .and is quoted
as follows:
It is an unfair trade practice for ati industry member
to represent directly or by impIi&ion, that a commer-
cial hearing aid establishment’is a governmental or
public one, or is a nonprofit’medical, educational, or
research institution, though the use of terms having a
medi+, professional,. or scientific connotation, such
as, ‘Wearing Center, ” ‘Hearing Institute, ‘I Wearing
Bureau, ” “Hearing Clinic, ” Wtate’s Speech and
Hearing Center, ” or similar representations,
Nothing in this rule. is understood to preclude an
industry member from representing if such be the
fact, that he owns, operates, or controls a ‘Hearing
Aid Center, ” or from Ming other words or expressions
which clearly and nondeceptively identify the member’s
establishment as a commercial hearing aid enterprise.
Article 4566-l. 11; V. T. C. S., establishes the procedure for revoco-
tion.or suspension of a license. It calls for charge8 to be filed under oath
Applicants or licensees are entitled to be present and to be represented by
counsel. They may cross-examine witnesses and call witnessess of their
OWL
(e) The Board shall deter’mine the charges upon their
merits. The Board shall enter an order in the
permanent records of the Board setting forth the
p. 1764
~The Honorable John F. Boff page S (H-375)
findings of fact and law .of the Board and its action
thereon. A copy of such order of the Board aball
be mailed to ruch applicant or licensee to his last
known address by certified mail.
We cannot say that as a matter of law, the use of the name of
a city in the name of a bu.siners dispensing hearing .aids is misleading
or deceiving. Whether it is. will depend upon the facts of a particular
case. The Board is charged with the responsibility of making that
decision after notice and an. opportunity to be heard.
SUMMARY
Article 4566-1.10 gives the Texas Board of
Examiners in the Fitting and Mapensing of
Hearing Aids power to determine, after notice
‘and hearing, whether the use of a city name
with the words “Hearing Aid Center” is deceptive
or misleading as a matter of fact.
Very truly yours,
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1765