NC teeth-whitening case goes to Supreme Court

The U.S. Supreme Court will hear oral arguments on October 14 in a North Carolina teeth-whitening case.

The closely watched case involves the North Carolina Board of Dental Examiners' challenge to a lower court ruling and an order by the Federal Trade Commission (FTC).

The FTC's original complaint against the dental board was issued in 2010, pertaining to letters sent by the board telling nondentist teeth-whitening providers that they were practicing dentistry illegally and ordering them to stop. The board also threatened or discouraged nondentists who were considering opening teeth-whitening businesses and sent letters to mall owners and property management companies urging them not to lease space to nondentist teeth-whitening providers, according to the FTC.

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

In July 2011, a judge issued an initial decision that found that the board's actions constituted "unreasonable restraint of trade and an unfair method of competition." The board appealed that decision. The FTC then found that the board excluded nondentist providers from the market for teeth-whitening services in violation of the Federal Trade Commission Act. The board again appealed, but it was denied.

The board has lost several appeals of the FTC's decision, including a May 2013 ruling by an appellate court, which upheld the right of nondentists to offer teeth-whitening products and services in the state.

In December 2013, the ADA joined the legal battle and hired an attorney to file briefs to the Supreme Court to review the appellate court's decision. At least 10 state attorneys general have filed briefs to the high court supporting the dental board.

A growing number of states are giving dentists a monopoly on providing teeth-whitening services in the U.S., according to a report released in April 2013 by the Institute for Justice and a related lawsuit filed by two nondentists who were prohibited from offering these services in Alabama.

Since 2005, at least 14 states have changed their laws or regulations to exclude all but licensed dentists, hygienists, or dental assistants from offering teeth-whitening services. In addition, at least 25 state dental boards have ordered teeth-whitening businesses to shut down, while nine states have brought legal actions against such businesses.

The high court's decision is expected early next year.

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