ADA backs NC board on teeth-whitening fight with FTC

By Donna Domino, DrBicuspid.com features editor

December 10, 2013 -- The ADA is supporting efforts of the North Carolina dental board in a dispute over the Federal Trade Commission's (FTC) ruling that the board's actions against nondentists who offer teeth-whitening products and services violated U.S. antitrust laws.

Did the North Carolina State Board of Dental Examiners go too far in trying to take action against nondentists who offer teeth-whitening products and services in the state? The Federal Trade Commission (FTC) ruled that the board overstepped its boundaries in doing so.

Now, however, the ADA is backing the efforts of the board in its dispute with the FTC.

The FTC's original complaint against the dental board was issued in June 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 November 2010, the board filed a motion seeking to dismiss the FTC's charges based on the state action doctrine. 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. Also that month, 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.

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." A month later, the board appealed that decision, but in December 2011, the FTC held 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 the U.S. Court of Appeals in the Fourth Circuit in Richmond, NC, which upheld the right of nondentists to offer teeth-whitening products and services in the state.

Now, the ADA has hired an attorney to file a brief to the U.S. Supreme Court to review the appellate court's decision, according to the organization. At least 10 state attorneys general have filed briefs to the high court supporting the dental board, the ADA stated.

The ADA also enlisted the support of the American Medical Association, American Osteopathic Association, American Veterinary Medicine Association, American Association of Orthodontists, American Association of Dental Boards, and other associations as parties to the brief.

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 (IJ) and a related lawsuit filed by two nondentists who were prohibited from offering these services in Alabama.

As the teeth-whitening industry has expanded, so has the push for laws and regulations that control who can and can't offer teeth-whitening services, according to the IJ, a U.S. civil liberties law firm founded in 1991. The IJ's report claims this expansion of dental licensing is a form of "economic protectionism."

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, according to the IJ. 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.


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