NC dental board sues Federal Trade Commission

2008 08 29 15 39 44 564 Justice Scale 70

The North Carolina State Board of Dental Examiners has filed a lawsuit against the U.S. Federal Trade Commission (FTC) accusing the FTC of violating the U.S. Constitution in its attempts to keep the board from regulating teeth-whitening services offered by nondentists.

The complaint was filed February 1 in the U.S. District Court for the Eastern District of North Carolina by the Raleigh-based law firm of Allen and Pinnix.

"The purpose of this action is to stop a pointless, baseless, and predetermined federal administrative proceeding that has impaired and continues to impair the ability of the State to protect its public, contravenes federal and state statutes, directly encroaches upon the State's sovereignty assured under the Tenth Amendment to the United States Constitution, and defies very, very well-established Supreme Court holdings," the complaint states.

While the U.S. Congress gives the FTC the jurisdiction to prevent persons, partnerships, or corporations from using unfair methods of competition, "the FTC has no jurisdiction or authority to take action against a state (or its bona fide state agencies), and Congress has never acted or implied an intent to enlarge the FTC's authority to extend over states' regulation of the practice of dentistry," the complaint contends.

Fighting conspiracy charges

The dental board's lawsuit -- which seeks declaratory judgment and preliminary and permanent injunctions -- is the latest development in a legal battle that has been brewing for the better part of a year. After a one-year investigation of the dental board that began in 2008, last June the FTC charged the board with anticompetitive conspiracy, alleging that the board is harming competition by blocking nondentists from providing teeth-whitening services in the state.

“The FTC is not concerned at all about teeth whitening.”
— A.P. Carlton, attorney

According to the FTC, the board sent out more than 40 letters ordering nondentists to stop providing teeth-whitening services, and allegedly threatened others who were considering opening teeth-whitening businesses.

Instead of seeking court orders to block nondentists from providing teeth-whitening services, which the dental board believes constitute unauthorized practice of dentistry under North Carolina law, the board "unilaterally ordered nondentists to stop providing whitening services," the FTC said.

As a result, the availability of teeth-whitening services in North Carolina has been significantly diminished, according to the FTC. The agency says the dental board's conduct is an "anticompetitive conspiracy" among the dentist members of the board that violates federal law.

"The North Carolina Dental Board does not have authority to decide on its own to limit the whitening services available to North Carolina residents, and its actions have decreased competition and harmed consumers," said Richard Feinstein, director of the FTC's Bureau of Competition, in a news release last June.

But A.P. Carlton, the attorney representing the dental board in this matter, claims the case has nothing to do with protecting the public.

"The FTC is not concerned at all about teeth whitening," he told "What they are concerned about is asserting jurisdiction over licensing boards populated by dentists. What they have intentionally and purposely done is to unlawfully assert jurisdiction, in spite of executive branch proclamations to the contrary, Supreme Court rulings to the contrary, and the lack of congressional action with respect to this."

Carlton cited a Supreme court precedent from 1943 (Parker v Brown) that established a principle that he said has never been overturned but often upheld: that state licensing boards have immunity from federal anti-trust laws.

"So this is nothing more than a bald attempt by the FTC to assert jurisdiction where they don't have jurisdiction," he said.

When contacted by, the FTC declined to comment at this time because of the ongoing nature of the litigation.

The FTC is scheduled to conduct an administrative review of this matter on February 17 at its offices in Washington, DC.

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