NORTH CAROLINA BOARD OF DENTAL EXAMINERS VS THE FEDERAL TRADE COMMISSION (FTC)

The Supreme Court of the United States (SCOTUS) has agreed to hear a case that will affect not only Dentistry, but all professional associations in the country.  North Carolina Board of Dental Examiners (NCBDE) VS FTC is scheduled to be heard by SCOTUS before the end of the year.  While ostensibly about tooth whitening, the case is really about the continued ability of all professional boards to fulfill their state-appointed regulatory duties.

Brief background information:  A number of dentists in NC were concerned by the lack of standards for operation or well-trained professional providers for tooth whitening services from such places as unlicensed mall kiosks and storefront offices.  The NCBDE, charged with helping to safeguard the public’s oral health in many ways, responded by performing its regulatory duties, ordering closure of such facilities.  Complaints to the FTC resulted in a ruling that antitrust/restraint of trade laws had been violated by the NCBDE.  Next, the FTC took issue with the state of NC regulation that the agency which oversees the practice of dentistry in the state; i.e., the NCBDE, should consist primarily of practicing dentists.  (READ THAT SENTENCE AGAIN---UNDERSTAND ITS FULL IMPACT.  IF, IN FACT, DENTISTRY OR ANY OTHER PROFESSION WERE REGULATED BY PERSONS WHO HAVE NO TRAINING OR KNOWLEDGE OF THAT PROFESSION, REGULATION WOULD BE IMPOSSIBLE.  HOW RIDICULOUS!)  An appeal to the Fourth Circuit Court resulted in the decision that since members of the NCBDE are elected by practicing dentists in North Carolina, the Board is a “private actor”, and, therefore, subject to federal antitrust/restraint of trade laws.

The decisions by the FTC and the Fourth Circuit Court will lead to elimination of immunity to federal antitrust/restraint of trade laws for all state professional licensing boards.  Numerous professional boards in addition to many boards of dental organizations plus the Attorneys General in 23 states have filed “Friend of the Court” briefs in support of the NCBDE’s position that it should continue to operate under immunity from antitrust laws, just as it has in the past.

Increased media attention to the up-coming SCOTUS case means dentists all over the country should be prepared to answer patients’ questions about this matter.  In answering those questions, emphasize that this is far from a battle over tooth whitening.  It is a case in which a negative decision by SCOTUS threatens the ability of all professional boards to perform their state-appointed regulatory and licensing duties designed to hold the particular profession and its providers to standards and to protect the public without fear of antitrust/restraint of trade law suits.  Professional boards of all disciplines are most concerned, rightly so, about the outcome.