Business & Industry

U.S. Supreme Court rules against NC dental board in whitening case

By staff writers

February 25, 2015 -- The U.S. Supreme Court has announced a decision in the case of North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC), ruling 6-3 that the dental board could be subject to antitrust claims.

The ruling, written by Justice Anthony Kennedy, said that because a "controlling number" of the North Carolina Dental Board's decision-makers are active market participants in the occupation the board regulates, the board can invoke state-action antitrust immunity only if it was subject to active supervision by the state, and here that requirement is not met.

The FTC argued, and six justices agreed, that although state entities are usually exempt from federal antitrust laws, the exemption did not apply because the board was not actively supervised by the state and because it was made up of self-interested private businesses.

Essentially, Justice Kennedy's ruling states that even though the dental board is an agency of the state, its actions must still be supervised by the state in order to enjoy antitrust immunity. Kennedy wrote that the exemption "does not authorize the states to abandon markets to the unsupervised control of active market participants."

The case was prompted by the FTC, which filed a 2010 complaint against the North Carolina dental board, pertaining to letters sent by the board telling nondentist teeth-whitening providers that they were practicing dentistry illegally and ordering them to stop. The FTC found that the board could be subject to antitrust claims, because members of the profession it regulates are also board members.

FTC Chairwoman Edith Ramirez said in a statement that the court's decision was clear.

"The court's decision makes clear that state agencies [the dental board] constituted in this manner are subject to the federal antitrust laws unless the state actively supervises their decisions," Ramirez said.

U.S. Supreme Court justices divided in teeth-whitening case
U.S. Supreme Court justices appeared divided during oral arguments on Tuesday in the closely watched North Carolina teeth-whitening case, with some concerned...
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.
Lawsuit filed against Ga. dental board over teeth whitening
A lawsuit has been filed by a teeth-whitening entrepreneur and the Institue of Justice, a public advocacy group, challenging the Georgia Board of Dentistry's...
ADA backs NC board on teeth-whitening fight with FTC
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...

Copyright © 2015

Last Updated np 3/2/2015 11:35:40 AM

16 comments so far ...
2/25/2015 9:44:25 PM
As I see it, this ruling has basically gutted all state dental boards from regulating dentistry. So the Supremes have decided that dentists are not the ones best suited to regulate dentistry because they are dentists and are not "overseen" by a state agency (that is not comprised of dentists). Are we to believe that government agents with no dental training are better suited to determine how best to protect the public from dental abuse than actual dentists? It is shocking and sad to see that the Supreme Court has determined that dentists are incapable of doing the right thing because we are really all just looking out for ourselves at the expense of the public the board exists to protect - what an insult.
If this doesn't put the nail in the coffin of dentistry as a profession thanks to the assault of dentistry the commodity, I don't know what will.

2/25/2015 10:33:28 PM
So what, pray tell, would the USSC reckon to be "active" supervision?  And as the OP said, who would be able to without bias make these regulatory decisions?  A lawyer?  A congressman?  I know both these professions have a long history of unbiased decisions.  Please.
Yet more silliness by the USSC.  Think, people.

2/26/2015 12:09:28 AM
Bill Osmunson DDS MPH
They just followed the law. Maybe laws need to be changed.

When I graduated dentists could not advertise and dentists were seriously disciplined for speaking up against mercury fillings. Now they are not safe for the sewer or dump or post office workers but safe for the mouth? Please.
And 42 human studies find neurological damage for fluoride exposure even at low concentrations and increased hypothyroidism in fluoridated communities.
And we are the only health care profession without diagnostic codes.
Maybe we should have MD DVM OD and other health care professionals provide some oversight.

2/26/2015 4:32:10 AM
In reply to "eatatjoes" it seems you are not aware that practicing dentistry does not include teeth whitening.  Please read the complete ruling from the Supreme Court.  Both the FTC and the Instistute for Justice has made this awareness to the public.  I am surprised the dentist are not making a fuss to do permanent makeup on the lips as this is touching the mouth.  To date, there has been no long term documented side effects from getting ones teeth whitened.  It has brought to the public that they have a choice.

2/26/2015 5:13:35 AM
Joyce, to say that there are not any documented side effects from whitening one's teeth is not true. Those of us who have been doing whitening for a number of years have all seen them. The fact of the matter is when a patient has a problem with whitening, who is best to treat them at that point? A licensed dentist, or some high school kid that is working in one of these unsupervised whitening places?