Should a state board of dental examiners be permitted to regulate teeth whitening treatments that are being performed by unlicensed non-dental practitioners? On February 25, 2015, the United States Supreme Court held that the allegedly anticompetitive actions taken by the State Board of Dental Examiners in North Carolina to stop the practice of teeth whitening by non-dentists was impermissible. [1]
Dentistry in North Carolina is regulated by the Dental Practice Act (“Act”) and enforced by the North Carolina State Board of Dental Examiners (“Board”). [2] The Act provides that the practice of dentistry is to be considered a matter of public concern requiring regulation from the Board; the Board consists of eight different members, six of whom must be licensed practicing dentists. [3] All Board members are elected to three-year terms, and no Board member may serve longer than two consecutive terms. [4] The principal duties of the Board are creating, administering, and enforcing a licensing the system for dentists. [5]
The issue in this case is whether the Board has the power to regulate teeth whitening, performed by non-dentists, within the practice of dentistry. Beginning in 2003, non-dentists began to charge less than dentists to whiten teeth. [6] Dentists began to complain to the Board about the lower prices and the safety issues posed to patients from seeking teeth whitening from non-dentists. [7] The board delegated the handling of the complaints to a Board member who was a licensed and practicing dentist at the time. [8] The Board reacted to the complaints by sending 47 cease-and-desist letters to the non-dentists in 2006. [9]
The cease-and-desist letters required all of the non-dentists to immediately stop performing “teeth whitening” treatments, and warned that the unlicensed practice of dentistry is a crime. [10] Non-dentists in North Carolina halted performing the teeth whitening in after receiving the letters. [11] Shortly after the non-dentists halted the teeth whitening services in 2010, the Federal Trade Commission (“FTC”) filed an administrative complaint against the Board alleging that the cease-and-desist letters had an anticompetitive and unfair effect on the market. [12]
After the FTC filed the complaint against the Board an Administrative Law Judge (“ALJ”) reviewed the complaint. [13] The ALJ ruled that the Board unreasonably restrained trade, and that it did not have state-action immunity. [14] State-action immunity allows state agencies to displace competition if they are actively supervised by the state; in this case, the Board was not supervised by North Carolina and was therefore barred from displacing competitive practices. [15] After the decision, the FTC ordered the Board to stop the cease-and-desist letters and mandated that the Board notify all of the non-dentists who received the letters that they could seek declaratory rulings in North Carolina State Court. [16]
The Board appealed to The United States Court of Appeals for the Fourth Circuit, and the circuit court affirmed the decision of the ALJ. [17] The Board then appealed the decision to the United States Supreme Court, which granted certiorari. [18] The Supreme Court affirmed the circuit court decision against the Board.
The Court found that the Board did not satisfy the two requirements of the Parker State-action immunity test: (1) that the challenged restraint was clearly articulated and affirmatively expressed as state policy, and (2) that the policy must be actively supervised by the State. [19] The purpose of the two-part test is to ensure that state actors are regulating the market to the extent necessary and to ensure that the State is supervising any anticompetitive effects on the market. [20] State supervision is necessary to ensure that the private actors are not regulating the market for personal benefit, but rather that the regulations further the state’s policies. [21]
In this case, the Court reasoned that the anticompetitive actions from the Board were not supervised by North Carolina, and concluded that the Board issued the letters because the teeth whitening from the non-dentists was cheaper than similar treatments offered by practicing dentists. [22] The Act does not regulate the practice of teeth whitening, and it was not up to the Board to expel non-dentists from partaking in cheaper teeth whitening services. [23] Finally, the Court reasoned that the state supervisor of the anticompetitive action may not be an active participant in the market itself, and in this case, the supervisor was a practicing dentist who performed teeth whitening services himself. [24]
The dissenting Justices argued that the Board is a state agency; and accordingly, as market participants, were allowed to regulate their own practice. [25] The dissenting Justices further pressed the issue of defining who would be a controlling member and who would be an active participant. [26]
The policy arguments supporting the decision to allow non-dentists to whiten teeth promotes unfettered restraint of trade in the United States. Parker immunity allows States to act as sovereign entities, but it does not allow States to run completely afoul of federal antirust law. [27] Moving forward, the composition of dental boards, medical boards, and other professional service entities throughout the Nation may come under closer scrutiny concerning regulations having a potentially anticompetitive effect on the market.
Hillary Cook is a current student at DePaul University College of Law in Chicago. Ms. Cook completed her undergraduate degree at the University of Dayton in communication management and political science. She will complete her law degree and certificate in health law in 2016.
References:
[1] N.C. State Bd. Of Dental Exam’rs v. FTC, 2015 U.S. LEXIS 1502 (2015).
[2] Id. at *1.
[3] Id. at *7.
[4] Id. at *10.
[5] Id. at *1.
[6] Id. at *10.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *11.
[11] Id. at *12.
[12] Id. at *1; (the purpose of the FTC is to ensure the Nation is free of anticompetitive practices).
[13] Id. at *1.
[14] Id.
[15] Id.; Parker v. Brown, 317 U.S. 341 (1943) (ruling state action immunity, or “Parker immunity,” allows entities being supervised by the state to partake in anticompetitive practices if the entity’s action is expressed as state policy.)
[16] N.C. State Bd. Of Dental Exam’rs, 2015 U.S. LEXIS 1502 at *14.
[17] Id.
[18] Id.
[19] Id. at *15; California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980).
[20] N.C. State Bd. Of Dental Exam’rs, 2015 U.S. LEXIS 1502 at *21.
[21] Id.
[22] Id. at *29.
[23] Id. at *33.
[24] Id.
[25] Id. at *48.
[26] Id.
[27] Id. at *15.