§452-23 Advertising. (a) It is a misdemeanor for any person, including a person who is exempt by section 452-21 from this chapter, to advertise with or without any limiting qualifications as a massage therapist unless the person holds a valid license under this chapter. Further, it shall be a violation of this chapter for any person to advertise:

(1) As a massage therapist or a massage therapy establishment unless the person holds a valid license under this chapter in the classification so advertised;

(2) By combining advertising for a licensed massage therapy service with escort or dating services;

(3) As performing massage in a form in which the person has not received training, or of a type which is not licensed or otherwise recognized by statute or administrative rule;

(4) By using in any mass distribution, print advertisements such as newspaper advertisements, or telephone directory listings, pictures depicting the human form other than hands, wrists, and forearms;

(5) By using any term other than therapeutic massage or massage therapy to refer to the service; or

(6) By referring to any personal physical qualities of the practitioner.

"Advertise" as used in this section includes, but is not limited to, the issuance of any card, sign, or device to any person; the causing, permitting, or allowing of any sign or marking on or in any building, vehicle or structure; advertising in any newspaper or magazine; any listing or advertising in any directory under a classification or heading that includes the word "massage therapist" or "massage therapy establishment"; or commercials broadcast by airwave transmission.

(b) A massage therapist or massage therapy establishment may advertise in print or broadcast medium, as defined in subsection (a) only if the massage therapist or massage therapy establishment includes in the advertisement or listing the massage therapist's or massage therapy establishment's applicable and current license number, and provides written evidence of the number's validity to the publisher or producer of the advertising medium. The publisher or producer of a print or broadcast advertising medium shall refuse to publish or broadcast an advertisement or listing for a massage therapist or massage therapy establishment that does not comply with the provisions of this subsection. A publisher or producer who obtains a signed statement from the massage therapist or massage therapy establishment which states that the massage therapist or massage therapy establishment has read the text of the advertisement or listing, has an applicable and current massage therapist or massage therapy establishment license for the services advertised, has included all applicable and current license numbers in the advertisement or listing, and is aware of civil and criminal penalties for advertising as a massage therapist or massage therapy establishment without a valid license, shall be entitled to a rebuttable presumption of compliance with this subsection.

(c) Upon entry of either a final order of the board of massage therapy pursuant to chapter 91, or a judgment by a court of competent jurisdiction, finding that a massage therapist or massage therapy establishment has advertised in violation of section 452-2 or this section, the public utility furnishing telephone service to the massage therapist or massage therapy establishment shall disconnect the telephone number contained in the advertisement or listing.

(d) A publisher or producer of a print or broadcast advertising medium shall not be liable in any suit, action, or claim arising from refusal to list or accept advertisements pursuant to subsection (b). Good faith compliance by a public utility with subsection (c) is a complete defense to any civil or criminal action brought against it arising from the termination of telephone service. [L 1985, c 95, §5; am L 1986, c 310, §4; am L 1990, c 205, §6; am L 1994, c 5, §5]

Attorney General Opinions

Paragraphs (4), (5), and (6) of subsection (a) were overly broad and infringed upon commercial speech rights afforded by First Amendment of U.S. Constitution. Att. Gen. Op. 98-2.