As North Carolina's teeth-whitening case goes to U.S. Supreme Court next month, the state's dental board is urging the high court to reject the Federal Trade Commission's (FTC) "radical departure" from a long-standing precedent that offers "state actors immunity from antitrust scrutiny," according to a National Law Review story.
The North Carolina State Board of Dental Examiners is arguing that the FTC's stance contradicts the principles that originally gave rise to the state action immunity doctrine, the story noted.
In August, the Supreme Court agreed to consider whether an appellate court erred in upholding the FTC's ruling against the dental board. Oral arguments in the closely watched case are scheduled for October 14, and the dental board submitted a brief of its arguments in advance.
The FTC's original complaint against the dental board was issued in 2010, pertaining to letters sent by the board telling nondentist teeth-whitening providers that they were practicing dentistry illegally and ordering them to stop. The board also threatened or discouraged nondentists who were considering opening teeth-whitening businesses, and sent letters to mall owners and property management companies urging them not to lease space to nondentist teeth-whitening providers, according to the FTC.
In 2011, the 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 FTC then denied the board's motion to dismiss the FTC's complaint, rejecting the board's argument that the state action doctrine exempts it from antitrust scrutiny under the Federal Trade Commission Act.
In July 2011, a judge issued an initial decision that found that the board's actions constituted "unreasonable restraint of trade and an unfair method of competition." The board appealed that decision. The FTC then found that the board excluded nondentist providers from the market for teeth-whitening services in violation of the FTC act. The board again appealed, but it was denied.
The board has lost several appeals of the FTC's decision, including a May 2013 ruling by an appellate court, which upheld the right of nondentists to offer teeth-whitening products and services in the state.
The board especially challenges the FTC's arguments that state action immunity is available only where decisions are made by "disinterested public officials," the story stated. The board asserts that the FTC seeks to apply to public officials the test that is applicable to private actors seeking the benefit of state action immunity. The board argues this is wrong, contending that the federalist principles that justified prior state action immunity decisions render the self-interest of individual public officials irrelevant.
In December 2013, the ADA joined the legal battle and hired an attorney to file briefs to the Supreme Court to review the appellate court's decision. Some 23 states have filed briefs to the high court supporting the dental board.
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. In addition, at least 25 state dental boards have ordered teeth-whitening businesses to shut down, while nine states have brought legal actions against such businesses.
The high court's decision is expected early next year.
