In December 2011, the FTC found that the North Carolina board illegally thwarted competition by working to bar nondentist providers of teeth-whitening services from selling their products to consumers.
The FTC then issued an order directing the board to stop telling nondentists to cease providing teeth-whitening products or services. It also required the board to stop telling nondentist teeth-whitening providers and other individuals that it is illegal for nondentists to provide these products or services.
If it stands, the FTC order would impede state regulation of the practice of medicine with a devastating impact on public health, according to the AMA legal brief, filed May 17 with the U.S. Court of Appeals in Richmond, VA.
"Although the FTC order is geared toward providers of teeth-whitening services in North Carolina and purports to address only a minor procedural practice of a dental board, the practical effect of the order, if sustained, would be anything but minor," the brief states. "That effect would reach far beyond providers of teeth-whitening services, far beyond dental boards, and far beyond North Carolina."
The North Carolina State Board of Dental Examiners is an agency of the State of North Carolina and is charged with regulating the practice of dentistry in North Carolina.
The FTC first took action against the North Carolina dental board in 2010, alleging that the board was harming competition by blocking nondentists from providing teeth-whitening services in the state.
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.
The matter culminated in the FTC order issued last December, followed in February of this year by an announcement that the FTC agreed to stay enforcement of its finding. The stay was granted to give the board a chance to have the case heard by an appellate court.
Now the AMA is protesting the FTC finding and claims that, if sustained, it would affect all state boards that license healthcare professionals, including state medical boards. The AMA maintains that the decisions of state licensing boards meet exemption criteria from federal antitrust challenges under the "state action doctrine" created by the U.S. Supreme Court.
"The FTC's reasoning would thus not only upset the balance between the state and
federal governments, but it would severely imperil state regulation of the practice of medicine for purposes of protecting public health -- an essential function of every state medical board," states the brief.
The AMA brief called the FTC decision a "bureaucratic overreach," based on a "misunderstanding of state law and of federal antitrust law."
"Safeguarding public health and patient safety are the primary purposes of the state statutes authorizing licensing boards to regulate healthcare professionals," said AMA President Peter Carmel, MD, in a press release. "It is crucial that licensing boards carry out the responsibilities assigned to them by state legislatures without being intimidated by federal overreach from the FTC."
In addition to the AMA, the North Carolina Medical Society, the South Carolina Medical Association, the Medical Society of Virginia, and the West Virginia State Medical Association joined the brief.
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