The U.S. Federal Trade Commission (FTC) has denied a motion by the North Carolina State Board of Dental Examiners to dismiss an FTC complaint that the dental board is trying to stifle competition by blocking nondentists from providing teeth-whitening services.
On February 8, the FTC issued an opinion and order unanimously rejecting the dental board's argument that the "state action doctrine" exempts it from antitrust scrutiny under the Federal Trade Commission Act. The state action doctrine exempts from antitrust liability conduct by private actors if their conduct is pursuant to a clearly articulated state policy to displace competition and if that conduct is supervised by the state.
As a result, the FTC's case against the dental board will be heard by an administrative law judge in Washington, DC, on February 17, as previously scheduled.
"Because the Board is controlled by practicing dentists, the Board's challenged conduct must be actively supervised by the state for it to claim state action exemption from the antitrust laws," the FTC wrote. "Because we find no such supervision, we hold that the antitrust laws reach the Board's conduct."
The dental board comprises eight members, including six licensed dentists, who regulate the practice of dentistry in North Carolina, the agency noted in a press release.
The FTC sued the dental board in June 2010, alleging that the board violated federal law by blocking nondentists from providing teeth-whitening services.
In November 2010, the board filed a motion seeking to dismiss the FTC's charges based on the state action doctrine. At the same time, complaint counsel filed a motion for partial summary decision, asking the commission to rule that the state action defense was unavailable to the dental board.
In its opinion filed February 8, the commission concluded that the state action doctrine did not exempt the dental board from antitrust scrutiny and granted complaint counsel's motion for partial summary decision.
On February 1, the dental board filed a lawsuit against the FTC, accusing the commission of violating the U.S. Constitution in its attempts to keep the board from regulating teeth-whitening services offered by nondentists.
"The purpose of this action is to stop a pointless, baseless, and predetermined federal administrative proceeding that has impaired and continues to impair the ability of the State to protect its public, contravenes federal and state statutes, directly encroaches upon the State's sovereignty assured under the Tenth Amendment to the United States Constitution, and defies very, very well-established Supreme Court holdings," the dental board's complaint states.
