Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. 136, 16 (1994)

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Cite as: 512 U. S. 136 (1994)

Opinion of O'Connor, J.

conclude that the CFP designation is conferred by the State. The Peel plurality stressed that "it seems unlikely that [the attorney's] statement about his certification as a 'specialist' by an identified national organization necessarily would be confused with formal state recognition." Id., at 104-105 (emphasis added). Because here there is no such identification, the converse is true. It is common knowledge that "many States prescribe requirements for, and 'certify' public accountants as, 'Certified Public Accountants.' " Id., at 113 (Marshall, J., concurring in judgment). Petitioner has of course been licensed as a CPA by the State of Florida. But her use of the CFP designation in close connection with the identification of herself as a CPA ("IBANEZ SILVIA S CPA CFP") would lead a reasonable consumer to conclude that the two "certifications" were conferred by the same entity— the State of Florida.

The Board of Accountancy has recognized this likelihood of consumer confusion: "[The term 'certified'] in conjunction with the term 'CPA' and the practice of public accounting, [is] so close to the terms protected by state licensure itself, that [its] use, when not approved by the Board, inherently mislead[s] the public into believing that state approval and recognition exists." App. 193-194. For this reason, the Board's regulations provide that an advertisement will be deemed misleading if it "[s]tates a form of recognition by any entity other than the Board that uses the ter[m] 'certified.' " Fla. Admin. Code 61H1-24.001(1)(i) (1994). Petitioner's advertising is in clear violation of this prohibition. Because the First Amendment does not prevent a State from protecting consumers from such inherently misleading advertising, in my view the Board's blanket prohibition on the use of the term "certified" in CPA advertising is constitutional as applied to petitioner.

B

But even if petitioner's use of "certified" was not inherently misleading, it seems clear beyond cavil that some con-

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