U.S. Supreme Court justices appeared divided during oral arguments Tuesday in the closely watched North Carolina teeth-whitening case, with some concerned that the state dental board may be unfairly restricting competition for the lucrative work.
The case was prompted by the U.S. Federal Trade Commission (FTC), which filed a 2010 complaint against the North Carolina State Board of Dental Examiners, 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.
During the oral arguments, the justices acknowledged the far-reaching implications of the case, which could go well beyond dentistry.
"This is, for me, a very difficult case," admitted Justice Stephen Breyer, according to the high court's transcript.
Justice Ruth Bader Ginsburg asserted that the dental board overstepped its authority when it sent cease-and-desist orders to nonlicensed dentists when they started providing teeth-whitening services.
"It had no authority to do that," she said. "No authority at all."
Some justices suggested that the dentists who dominate the state board may be acting for their own economic benefit rather than the public good, and may therefore be subject to antitrust oversight.
Justice Sonia Sotomayor noted that board members "have a self-interest that is inherent in their occupation." And Justice Anthony Kennedy noted: "The federal government, the FTC, and the Sherman Act have an interest in ensuring that regulators do not pursue their selfÂinterest."
Justice Elena Kagan asked: "This board of all dentists, is there a danger that it's acting to pursue its own interests rather than the governmental interests of the state? And that seems almost self-evidently to be true."
But Justice Antonin Scalia questioned the idea that dental board members would put a priority on their own financial interests, "Do you really think that the financial interest of the individual members of the board is going to be significantly affected?" he asked. "My goodness, I find that hard to believe."
The FTC's stance also faced some skepticism, with Justice Stephen Breyer pointing out the advantages of having specialists oversee their profession.
For example, he said there would be a problem if neurologists were not allowed to use their specialist knowledge to determine the qualifications of those applying to work in the field. "Now, that to me, spells danger," he said.
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.
The state's dental board is urging the high court to reject the FTC's "radical departure" from a long-standing precedent that offers "state actors immunity from antitrust scrutiny."
In December 2013, the ADA joined the legal battle and hired an attorney to file briefs to the Supreme Court. Some 23 states have filed briefs to the high court supporting the dental board.
Teeth-whitening products are regulated by the U.S Food and Drug Administration as cosmetics and no prescription is required to buy them. They are widely available at stores, and consumers use them at home without supervision or instruction.
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 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 high court's decision is due by June.
In a related case, an Alabama judge last week upheld the state's law restricting nondentists from offering teeth-whitening products and services. The ruling noted cases in which people's lips and gums were burned by whitening chemicals and confirmed the Legislature's authority to pass laws to protect the public's health.
