The North Carolina State Board of Dental Examiners and the ADA criticized last week's U.S. Supreme Court decision on teeth whitening, saying the ruling undermines the states' authority to regulate activity while creating a quandary for professional boards across the country.
But an attorney for the Institute for Justice (IJ), which has filed several lawsuits on behalf of nondentists on the issue, said the ruling rejects self-serving attempts by dentists to create a monopoly in the lucrative business.
On February 25, the U.S. Supreme Court ruled 6-3 against the dental board in North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC), because a "controlling number" of the dental board's decision-makers are active market participants in the occupation the board regulates, the board can invoke state-action antitrust immunity only if it was subject to active supervision by the state. However, that requirement was not met in the case.
The FTC argued, and six justices agreed, that although state entities are usually exempt from federal antitrust laws, the exemption did not apply because the board was not actively supervised by the state and because it was made up of self-interested private businesses. Practically, the ruling means the North Carolina dental board does not have the authority to regulate teeth-whitening services.
In recent years, teeth whitening has mushroomed into an $11 billion industry, encompassing products such as gum and toothpaste, as well as services offered by dentists, salons, spas, and mall kiosks, according to 2013 report by the Institute for Justice.
The U.S. Food and Drug Administration regulates teeth-whitening products as cosmetics, meaning that anyone is permitted to purchase them and apply them to their own teeth without a prescription and without supervision or instruction.
The North Carolina dental board expressed disappointment in the ruling, saying it "fundamentally misconstrues the purpose of state-action doctrine," according to an email from board Chief Operations Officer Bobby White to DrBicuspid.com.
"The point of the doctrine is to respect federalism, in that there's no indication in the Sherman Act that Congress intended to displace state regulatory activity. That's especially true in this context: Professional regulatory boards have always been structured this way, and yet no one until this case ever argued that the Sherman Act subjected them to liability for this reason. That's the elephant in the room that Alito's dissent emphasized and that Kennedy's majority ignored," White wrote.
As a result, nearly every professional regulatory board in the country will have to undergo basic changes to their structure, supervision, and operations, according to White. Changes on a nationwide scale could cause "massive" disruption of professional regulation, he stated.
The ADA believes "the decision constitutes a dramatic departure from the Supreme Court’s established law, and throws into question the regulatory, licensing, and disciplinary authority of thousands of professional boards across the country. The well-established, 70-year-old precedent announced in Parker v. Brown, 317 U.S. 341, should have been applied in the North Carolina case, where the board is unquestionably a state agency created by the sovereign state of North Carolina," according to an email response to DrBicuspid.com.
The organization echoed the board's sentiment that the ruling "throws into question the regulatory, licensing, and disciplinary authority of thousands of professional boards across the country. The ruling creates a quandary for professional boards across the country, with no explanation as to what level of 'active supervision' is necessary to invoke immunity for each board."
However, Paul Sherman, a senior IJ attorney, called the decision a "victory for economic liberty."
"I think the Supreme Court saw exactly what was going on here," Sherman told DrBicuspid.com. "This was licensed dentists using public power for their own private benefit."
He noted that even conservative Justice Samuel Alito acknowledged that professional boards usually protect the businesses that they oversee.
"There is not anything new about the suspicion that the North Carolina board, in attempting to prevent persons other than dentists from performing teeth-whitening procedures, was serving their own interests and not the public," Alito wrote in his dissent. "Professional and occupational licensing requirements have often been used in such a way."
While the high court's ruling is not a direct precedent in pending related cases, IJ attorney Sherman said "it does indicate that the court is very aware that occupational licensing boards are prone to abuse their power, and I think it suggests that lower courts should recognize that and be a little more skeptical when they are confronted with these kinds of abuses."
The ruling, written by Justice Anthony Kennedy, stated that because a "controlling number" of the North Carolina dental board's decision-makers are active market participants in the occupation the board regulates, the board can invoke state-action antitrust immunity only if it was subject to active supervision by the state, and here that requirement is not met.
The case was prompted by the FTC, which filed a 2010 complaint against the North Carolina dental board, pertaining to letters sent by the board telling nondentist teeth-whitening providers that they were practicing dentistry illegally and ordering them to stop. The FTC found that the board could be subject to antitrust claims, because members of the profession it regulates are also board members.
FTC Chairwoman Edith Ramirez said in a statement that the ruling clearly indicates that states cannot give private market participants unsupervised authority to suppress competition even if they act through a formally designated "state agency."
Legal efforts to curb whitening
Since 2005, at least 14 states have changed their laws or regulations to exclude all but licensed dentists, hygienists, or dental assistants from offering teeth-whitening services. And at least 25 state dental boards have ordered teeth-whitening businesses to shut down, while nine states have brought legal actions against such businesses, according to the IJ report.
The IJ filed a 2013 lawsuit on behalf of two nondentists against the Alabama Board of Dental Examiners, claiming a state law excluding nondentists from offering teeth-whitening products and services was an unconstitutional attempt by the state's dentists to create a monopoly and is an illegal restriction on business. An Alabama county judge upheld the law, which is being appealed.
The IJ sued the Connecticut Dental Commission in 2011 on behalf of a teeth-whitening business after the board made it illegal for anyone but a licensed dentist to offer teeth-whitening services.
In 2014, the IJ filed a similar suit challenging the Georgia Board of Dentistry's rule prohibiting nondentists from doing teeth whitening.
And a nondentist vendor selling teeth-whitening services at a state fair got a restraining order filed by the Oklahoma Board of Dentistry in 2012.
In 2010, the New Jersey Dental Association filed a lawsuit against a tanning chain that offered teeth whitening services. The dental group eventually won in an appellate court ruling.
A South Carolina lawmaker introduced a bill in 2014 that would allow only licensed dental hygienists and dentists to do teeth whitening.
The ADA said it will work with other organizations to provide guidance for state dental boards in response to the ruling.
IJ attorney Sherman said dentists may now try to push for legislative reform that more clearly gives dental boards the authority to regulate teeth whitening.
"Given how extraordinary the efforts have been by dentists across the country to push for regulations, I would not be surprised," he noted. "But I hope North Carolina legislators will be a little skeptical based on the record that was compiled in this lawsuit."
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