FTC grants stay on NC teeth-whitening issue

The U.S. Federal Trade Commission (FTC) has agreed to stay enforcement of its finding that the North Carolina State Board of Dental Examiners' efforts to block nondentists from providing teeth-whitening services violate antitrust laws.

The stay, issued February 10, was granted to give the board a chance to have the case heard by an appellate court.

The board asserted that a decision issued last July by a FTC judge would cause "significant irreparable harm" to the board and public, prevent the board from enforcing the state's Dental Practice Act, limit the board's remedies for violations of the law, force the board to adopt a particular interpretation of the law and force the board to provide administrative hearings to unlicensed dentists, according to the stay.

The FTC found the board's arguments without merit but granted the stay in case their decision was overturned on appeal, which the commission felt would cause confusion and require more letters to be sent instructing nondentist teeth-whitening providers that they were practicing dentistry illegally and ordering them to stop.

The board has said it stopped sending such letters two years ago.

FTC Commissioner Edith Ramirez disagreed with the stay, saying that nondentist providers who left the market will deprive consumers of access to less expensive services. She also noted the appeals process could take years, and the board could resume sending cease and desist letters to new businesses or those who want to resume selling the services.

The FTC's ruling last year found 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 board then appealed the decision, and the FTC commissioners held a hearing.

The FTC subsequently denied the board's motion to dismiss the commission's complaint, unanimously rejecting the board's argument that the state action doctrine exempts it from antitrust scrutiny under the Federal Trade Commission Act.

At the time, Noel Allen, attorney for the dental board, told DrBicuspid.com that the commission had "made up their minds a long time ago."

Teeth-whitening services provided by the state's 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.

The dental board sent 42 cease and desist letters to nondentist teeth-whitening providers and at least 11 letters to third parties -- including mall owners and property management companies -- stating that teeth-whitening services offered in malls are illegal, according to the FTC's original complaint, filed in June 2010.

In February 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.

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