The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-309
of :
: November 21, 1996
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE THOMAS W. SNEDDON, JR., DISTRICT ATTORNEY OF
SANTA BARBARA COUNTY, has requested an opinion on the following question:
Does a telephone directory yellow pages advertisement by an attorney that contains the
phrase "workers' compensation" or "industrial injuries" require the placement of a notice regarding the
filing of a false or fraudulent workers' compensation claim on the page where the advertisement is
located?
CONCLUSION
A telephone directory yellow pages advertisement by an attorney that contains the
phrase "workers' compensation" or "industrial injuries" requires the placement of a notice regarding the
filing of a false or fraudulent workers' compensation claim on the page where the advertisement is
located.
ANALYSIS
The question submitted for resolution involves the interpretation of the Workers'
Compensation Truth in Advertising Act of 1992 (Lab. Code, '' 5430-5434; "Act").1 Section 5431
expresses the Legislature's intent in adopting the Act:
1
Unless otherwise indicated, all section references hereafter are to the Labor Code.
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"The purpose of this chapter is to assure truthful and adequate disclosure of all
material and relevant information in the advertising which solicits persons to file
workers' compensation claims or to engage or consult counsel or a medical care
provider or clinic to consider a workers' compensation claim."
We are asked specifically to construe the language of subdivision (a) of section 5432, which states as
follows:
"Any advertisement which solicits persons to file workers' compensation claims
or to engage or consult counsel or a medical care provider or clinic to consider a
workers' compensation claim in any newspaper, magazine, circular, form letter, or open
publication, published, distributed, or circulated in this state, or on any billboard, card,
label, transit advertisement or other written advertising medium shall state at the top or
bottom on the front side or surface of the document in at least 12-point roman boldface
type font, . . . the following:
NOTICE
"Making a false or fraudulent worker's compensation claim is a felony
subject to up to 5 years in prison or a fine of up to $50,000 or double
the value of the fraud, whichever is greater, or by both imprisonment
and fine."
Are the requirements of subdivision (a) of section 5432 applicable to a telephone directory yellow
pages advertisement placed by an attorney that contains the phrase "workers' compensation" or
"industrial injuries"? We conclude that the requirements are applicable and that the requisite notice
must appear on each page containing such an advertisement.
There can be no doubt that business listings in the yellow pages of a telephone directory
are a form of advertising. Telephone companies promote them as such, and several United States
Supreme Court cases have treated listings for goods or services in the yellow pages as any other form of
written advertising. Indeed, the court has never distinguished among the various forms of written
advertising to the general public. (See Shapero v. Kentucky Bar Association (1988) 486 U.S. 466, 473;
see also Ibanez v. Florida Bd. of Accountancy (1994) 512 U.S. ___, 129 L.Ed.2d 118, 124; In re R.M.J.
(1982) 455 U.S. 191, 205-208; Bates v. State Bar of Arizona (1977) 433 U.S. 350, 372, fn. 26.)
It is true that section 5432 does not expressly mention yellow pages advertisements.
Nevertheless, it is apparent that the Legislature intended to apply the requirements of the Act to all
forms of advertising, not merely those specifically identified in section 5432. Section 5432 begins
with a reference to "any advertising" and proceeds to an enumeration of various types of advertising,
followed by the phrase "or other written advertising medium." This, combined with the stated
purpose of the Act contained in section 5431, makes it clear that the Legislature intended to give a
broad reach to the Act's requirements. Both the plain meaning of the words used (see DaFonte v.
Up-Right, Inc. (1992) 2 Cal.4th 593, 601) and the expressed intent of the Legislature (see Freedom
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Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826) support
the conclusion that section 5432 is applicable to telephone directory yellow pages advertisements.
Does the phrase "[a]ny advertisement which solicits . . ." limit the application of
subdivision (a) of section 5432 to "solicitations" and not other types of advertising? For some
purposes a distinction has been drawn between general advertising and the direct solicitation of a
particular individual by an attorney. (See Rule 1-400, Rules Prof. Conduct of State Bar; Ohralik v.
Ohio State Bar Assn. (1978) 436 U.S. 447; Jacoby v. State Bar (1977) 19 Cal.3d 368.) While that
difference may be significant for purposes of prohibiting certain conduct (i.e., solicitation of
individuals) by attorneys while preserving their First Amendment right to advertise (Bates v. State Bar
of Arizona, supra, 433 U.S. 350), we do not believe the Legislature intended to draw such distinction in
section 5432. Rather, the word "solicits" is used in its more ordinary sense of a general solicitation
addressed to the public utilizing an advertising medium. "Solicit" commonly means "to endeavor to
obtain by asking." (Webster's Third New Internat. Dict. (1971) p. 2169.) "To determine the intent of
legislation, we first consult the words themselves, giving them their usual and ordinary meaning.
[Citations.]" (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at 601.) We believe that the language of
the Act, both literally and in keeping with its expressed purpose, is intended to cover all forms of
written advertising, and not merely those which fit a narrow subset of written advertisements.
Since the telephone yellow pages comprise an "advertising medium," a listing which
"solicits persons to . . . engage or consult counsel . . . to consider a workers' compensation claim" is
subject to the notice requirement of section 5432. Here the attorney listings include the phrase
"workers' compensation" or "industrial injuries." Whatever other reasons might exist for including that
information in a yellow pages listing, it can hardly be doubted that one purpose is to solicit business
from people seeking to consult counsel regarding a workers' compensation claim. Accordingly, we
believe that subdivision (a) of section 5432 is applicable to the yellow pages advertisements described
herein.
In particular, we note that the Legislature did not expressly require the words "workers'
compensation" to appear in an advertisement subject to the terms of section 5432. Rather, the
Legislature was concerned with the effect of the advertisement. If an advertisement, in fact, "solicits
persons to . . . engage or consult counsel . . . to consider a workers' compensation claim," it does not
matter what specific words are used to convey that solicitation. It would be inconsistent with the stated
purpose of the Act to allow an attorney to avoid its effect by the simple expedient of using such terms
as "industrial injuries," "work related injury," or "payment for on-the-job injuries."
Next we consider the constitutional validity of section 5432 with respect to the
"burden" of placing a disclosure notice in a yellow pages advertisement. While the statute places no
limits upon what the advertisement may say, it does require the addition of a qualifying statement
which implicates First Amendment rights. The First Amendment of the United States Constitution
provides: "Congress shall make no law . . . abridging the freedom of speech. . . ." This restriction
against the exercise of federal power is applicable to state and local governments by virtue of the due
process clause of the Fourteenth Amendment. (See Hazelwood School District v. Kuhlmeier (1987)
484 U.S. 260, 266; 77 Ops.Cal.Atty.Gen. 56, 57-58 (1994).)
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Similar to the federal Constitution, subdivision (a) of section 2 of article of the
California Constitution states: "Every person may freely speak, write and publish his or her sentiments
on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty
of speech or press." The California Constitution has been construed as being more protective of First
Amendment rights than the federal Constitution. (Spiritual Psychic Science Church v. Azusa (1985)
39 Cal.3d 501, 519; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 903, 907-910; Wilson
v. Superior Court (1975) 13 Cal.3d 652, 658; Women's Internat. League Etc. Freedom v. City of Fresno
(1986) 186 Cal.App.3d 30, 37-38.) Nevertheless, we believe that an examination of the constitutional
issues to be resolved herein requires similar treatment under the two constitutions (see California
Teachers Assn v. Governing Board (1996) 45 Cal.App.4th 1383, 1391-1392; Savage Lab Conversion
Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1164-1165; 75
Ops.Cal.Atty.Gen. 232, 238 (1991)), and thus we will rely upon both federal and California cases in our
analysis of section 5432. In so doing, we will follow the admonition to "adopt an interpretation that,
consistent with the statutory language and purpose, eliminates doubts as to the provision's
constitutionality." (In re Kay (1970) 1 Cal.3d 930, 942; accord, People v. Davis (1981) 29 Cal.3d 814,
829; see People v. Milano (1979) 89 Cal.App.3d 153, 163.)
In 1976 the United States Supreme Court held that the First Amendment precludes
government regulation of certain forms of commercial speech. (Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, Inc. (1976) 425 U.S. 748.) Since that time the court has specifically
addressed the validity of government restraints that have been placed upon attorney advertisements in
various circumstances. (See In re R.M.J., supra, 455 U.S. 191; Ohralik v. Ohio State Bar Assn., supra,
436 U.S. 447; Bates v. State Bar of Arizona, supra, 433 U.S. 350.) Advertising by attorneys is not only
permissible, but the right to list one's certifications and area of specialty has been explicitly recognized.
(Peel v. Attorney Disciplinary Commission of Illinois (1990) 496 U.S. 91.) Thus the yellow pages
advertisements in question, including references to practicing in the field of workers' compensation,
constitute a form of speech protected by the First Amendment.
Since section 5432 does not prohibit an attorney's advertisement, we must examine the
difference between a restraint on commercial speech and a disclosure requirement. In Zauderer v.
Office of Disciplinary Counsel (1985) 471 U.S. 626, an attorney advertised that he would represent
clients on a contingent-fee basis, but failed to disclose, as required by the State of Ohio, the clients'
potential liability for costs if their lawsuits were unsuccessful. The court analyzed the issue as follows:
"Appellant contends that assessing the validity of the Ohio Supreme Court's
decision to discipline him for his failure to include in the Dalkon Shield advertisement
the information that clients might be liable for significant litigation costs even if their
lawsuits were unsuccessful entails precisely the same inquiry as determining the
validity of the restrictions on advertising content. . . . In other words, he suggests that
the State must establish either that the advertisement, absent the required disclosure,
would be false or deceptive or that the disclosure requirement serves some substantial
governmental interest other than preventing deception; moreover, he contends that the
State must establish that the disclosure requirement directly advances the relevant
governmental interest and that it constitutes the least restrictive means of doing so. . . .
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"Appellant, however, overlooks material differences between disclosure
requirements and outright prohibitions on speech. In requiring attorneys who advertise
their willingness to represent clients on a contingent-fee basis to state that the client
may have to bear certain expenses even if he loses, Ohio has not attempted to prevent
attorneys from conveying information to the public; it has only required them to
provide somewhat more information than they might otherwise be inclined to present. .
..
". . . Because the extension of First Amendment protection to commercial
speech is justified principally by the value to consumers of the information such speech
provides, [citation], appellant's constitutionally protected interest in not providing any
particular factual information in his advertising is minimal. Thus, in virtually all our
commercial speech decisions to date, we have emphasized that because disclosure
requirements trench much more narrowly on an advertiser's interests than do flat
prohibitions on speech, `warning[s] or disclaimer[s] might be appropriately required . . .
in order to dissipate the possibility of consumer confusion or deception.' [Citations.]
"We do not suggest that disclosure requirements do not implicate the
advertiser's First Amendment right at all. We recognize that unjustified or unduly
burdensome disclosure requirements might offend the First Amendment by chilling
protected commercial speech. But we hold that an advertiser's rights are adequately
protected as long as disclosure requirements are reasonably related to the State's interest
in preventing deception of consumers." (Id., at pp. 650-651, fn. omitted.) The court
further explained:
"We reject appellant's contention that we should subject disclosure
requirements to a strict `least restrictive means' analysis under which they must be
struck down if there are other means by which the State's purposes may be served.
Although we have subjected outright prohibitions on speech to such analysis, all our
discussions of restraints on commercial speech have recommended disclosure
requirements as one of the acceptable less restrictive alternatives to actual suppression
of speech. [Citation.] Because the First Amendment interests implicated by
disclosure requirements are substantially weaker than those at stake when speech is
actually suppressed, we do not think it appropriate to strike down such requirements
merely because other possible means by which the State might achieve its purposes can
be hypothesized. Similarly, we are unpersuaded by appellant's argument that a
disclosure requirement is subject to attack if it is `under-inclusive' -- that is, if it does
not get at all facets of the problem it is designed to ameliorate. As a general matter,
governments are entitled to attack problems piecemeal, save where their policies
implicate rights so fundamental that strict scrutiny must be applied. [Citation.] The
right of a commercial speaker not to divulge accurate information regarding his
services is not such a fundamental right." (Id., at pp. 651-652, fn. 14.)
In the present instance the Legislature has attempted, through the Act's requirements, to
deter the filing of fraudulent workers' compensation claims. There can be little doubt as to the
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substantial interest of the state in deterring false claims, which increase insurance costs and adversely
affect the entire workers' compensation system to the detriment of workers, employers, insurance
companies, and taxpayers. The Legislature has determined that in the absence of a disclosure notice
required by section 5432, advertising would not ". . . assure truthful and adequate disclosure of all
material and relevant information." (' 5431.) Even though other means may accomplish the goal of
deterring false claims and disclosing the criminal penalties for such claims might not fully address the
problem, the disclosure requirement of section 5432 advances the substantial government interest of
reducing fraudulent workers' compensation claims. (See Central Hudson Gas & Electric Co. v. Public
Service Corp. (1980) 447 U.S. 557.)
Having determined that the disclosure notice is permissible as a general proposition, we
next consider how section 5432 is to be applied to yellow pages advertisements. Attorneys, like other
business telephone subscribers, typically receive a "regular listing" in the yellow pages consisting of
one or two lines with the name, address, and telephone number. Subscribers may purchase an
additional line or lines, which may be used to indicate a specialty, such as workers' compensation.
Subscribers may also purchase "space listings" which allow additional text within the column of the
listing. In addition to the general listings for attorneys, an "attorney guide" may contain advertisements
divided into areas of practice, including workers' compensation law. Finally, subscribers may purchase
"display advertising" of various sizes ranging up to a full page.
Bearing in mind these advertisement categories, we return to the language of section
5432, which requires an advertisement "published . . . on any . . . written advertising medium" to
include the disclosure notice "at the top or bottom on the front side or surface of the document." In the
context of a yellow pages advertisement, what constitutes the "document?" It could be the entire
yellow pages directory, the attorney guide portion, the page on which the advertisement is displayed, or
the individual advertisement itself, among other possibilities.
We are directed to interpret statutes to "effectuate the underlying legislative intent."
(Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1012.) Here the purpose of
section 5432 is to provide information to the public. That purpose is satisfied by the notice being
printed in a location where it will be viewed by members of the public to whom the workers'
compensation advertisement is directed. We believe that each page containing a workers'
compensation advertisement must contain the required disclosure notice.
Placing the notice on each page serves the purpose of providing the required
information to potential workers' compensation claimants who are seeking counsel regarding their
claims. We believe that one notice may serve all workers' compensation advertisements on the page.
Determining the exact placement of the notice with the prescribed size and type would be a matter for
the directory publisher and the attorney or attorneys to negotiate, keeping in mind the purposes of the
Act.
We do not believe that section 5432, as we have construed its application here,
impermissibly burdens protected commercial speech. (See Zauderer v. Office of Disciplinary Counsel,
supra, 471 U.S. at 651.) We are aware that in Memphis Publishing Co. v. Leech (W.D. Tenn. 1982)
539 F.Supp 495, the court invalidated a requirement that a warning be published in certain liquor
advertisements. However, Leech involved a statute which required newspapers to publish the warning,
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whereas section 5432 places the obligation on the advertiser. Moreover, Leech dealt with a more
burdensome requirement in terms of the space needed for the compelled disclosure and considered
several factors later found inapplicable by the court in Zauderer v. Office of Disciplinary Counsel,
supra, 471 U.S. 626.
We conclude that a telephone directory yellow pages advertisement by an attorney that
contains the phrase "workers' compensation" or "industrial injuries" requires the placement of a notice
regarding the filing of a false or fraudulent workers' compensation claim on the page where the
advertisement is located.
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