The North Carolina State Board of Dental Examiners' actions violated the law, according to a decision by Chief Administrative Law Judge D. Michael Chappell, who concluded it was "unreasonable restraint of trade and an unfair method of competition."
The dental board lacks the authority to order nondentists to discontinue providing teeth-whitening goods or services, Chappell ruled. He also forbid it from engaging in the same anticompetitive conduct in the future. In addition, the order requires the board to send follow-up letters to nondentists whom it had previously warned would or might be violating state law by providing teeth-whitening services, the FTC statement said.
“It should be the Congress or the U.S. Supreme Court that pronounces the death of that state right.”
— Noel Allan, attorney, North Carolina
State Board of Dental Examiners
Chappell determined that "dentist members of the dental board had a common scheme or design, and hence an agreement, to exclude nondentists from the market for teeth-whitening services and to deter potential providers of teeth-whitening services from entering the market," the FTC said.
The judge’s decision will become the commission's final ruling if no appeal is filed within 30 days.
In North Carolina, teeth-whitening services provided by nondentists often are available at salons, retail stores, and mall kiosks. The state's dentists offer whitening services in their offices and also provide take-home kits.
In June 2010, the FTC initiated an action against the dental board, alleging that the board violated federal law by blocking nondentists from providing these services. According to the complaint, the dental board sent 42 letters instructing nondentist teeth-whitening providers that they were practicing dentistry illegally and ordering them to stop.
The complaint also alleged that the dental board sent at least 11 letters to third parties -- including mall owners and property management companies -- stating that teeth-whitening services offered in malls are illegal.
In November 2010, the board filed a motion seeking to dismiss the FTC's charges based on the state action doctrine. On February 1, 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.
Then, on February 8, the FTC denied the board's motion to dismiss the FTC's complaint, unanimously rejecting the board's argument that the state action doctrine exempts it from antitrust scrutiny under the Federal Trade Commission Act.
Board attorney Noel Allen called the ruling an "unprecedented decision" that "overrides North Carolina's long-established right to define and regulate the practice of dentistry for our citizens." It also calls into question the authority of other state agencies, which ensure that lawyers and medical professionals are adequately trained, he added.
"If a clear state statute, a century of court precedents, and the United States Constitution no longer allow the state of North Carolina, acting through its General Assembly, to define the practice of dentistry to protect our citizens from the illegal and unsafe practice of dentistry, then it should be the Congress or the U.S. Supreme Court that pronounces the death of that state right," Allen wrote in an email to DrBicuspid.com. "The decision should not come from the FTC acting on its own initiative, without even so much as internal rule to support it."
It is truly ironic that the FTC, a federal agency that was established to protect consumers, "has been goaded into action by self-serving teeth-whitening industry representatives who want to prevent the dental board from protecting consumers," he added.
James Hemby, the board's nondentist consumer member, said the group never tried to stifle competition and was only trying to protect the public.
"It bothers me that the FTC, whose motto is to protect consumers, has issued a decision to punish a board whose sole job is to carry out a state statute to protect the public," he told DrBicuspid.com in an emailed statement.
Last month, the Connecticut State Dental Commission ruled that tooth whitening is dentistry and can no longer be performed at spas, salons, and shopping malls unless it is done under the supervision of a licensed dentist.
More recently, a judge ruled against the New Jersey Dental Association (NJDA) in its legal battle against Beach Bum Tanning, an East Coast chain of tanning salons that was also offering teeth whitening. In its lawsuit, the NJDA alleged unfair competition on behalf of its members and accused Beach Bum salons of practicing dentistry without a license. But the judge ruled that "the NJDA as a professional association does not have standing to enforce the provisions of the Dentistry Act through unfair competition claims."
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