LEGAL COMMENTS U.S. Supreme Court Strikes Down
North Carolina Dental Board Action Case calls into question the viability of state licensing boards across the country by LOWELL D. PEARSON
I
n February, the U.S. Supreme Court held that the North Carolina State Board of Dental Examiners (“Board”) violated a federal antitrust law (the Sherman Act) by engaging in a campaign to prevent non-dentists from performing teeth whitening services. The case calls into question the viability of state licensing boards across the country, including the Missouri Dental Board. While it is too early to tell what reach the decision will have, state boards and legislatures are considering what to do in response. As I will describe below, my opinion is that the consequences of the decision are not likely to be as significant as some commentators have stated.
THE FACTS
The North Carolina Board is the “agency of the State for the regula- tion of the practice of dentistry.” The Board has broad authority to regulate its licensees, but its authority over non-licensees is limited to filing a lawsuit to “enjoin any person from … unlawfully practicing dentistry.”
Six of the eight board members must be dentists involved in active practice. They are elected by other licensed dentists through an elec- tion process conducted by the Board. The seventh member must be a licensed dental hygienist, elected by other dental hygienists. The eighth member is a consumer selected by the governor.
The issue in the case involves teeth whitening. In the 1990s, dentists starting performing the service. Eight of the ten dentist members of the Board provided that service, and the Supreme Court found that they earned “substantial fees” for performing the service. In 2003, non-dentists starting whitening teeth, and the Court states that they charged lower prices than the dentists did. Many dentists complained to the Board. The Supreme Court characterized the complaints as follows: “Few complaints warned of possible harm to consumers. Most expressed a principal concern with the low prices charged by non-dentists.”
The Board responded by opening an investigation into non-dentist teeth whitening. A dentist member of the Board headed the investi- gation. The executive director of the Board described the Board’s in- tent as “going forth to do battle” with non-dentists. The Board never promulgated a rule about teeth whitening, and the governing statute did not define teeth whitening as the practice of dentistry.
26 focus | MAY/JUN 2015 | ISSUE 3
The Board issued 47 cease-and-desist letters to teeth whitening ser- vice providers and manufacturers of whitening products. The letters directed the recipients to stop teeth whitening and warned that the unlicensed practice of dentistry is a crime. The Board also sent letters to mall operators, advising them to evict tenants involved in teeth whitening, and convinced the Board of Cosmetic Art Examiners to warn cosmetologists against whitening teeth.
In the Supreme Court’s words, “These actions had the intended result. Non-dentists ceased offering teeth whitening services in North Carolina.”
THE CASE
The Federal Trade Commission (FTC) is an agency of the U.S. Gov- ernment that has authority to enforce the fair trade and antitrust laws of this country. The FTC initiated an enforcement action against the Board and ultimately ordered the Board to stop sending cease- and-desist letters or other communications stating that non-dentists could not provide teeth whitening services, and to issue notices to
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40