Supreme Court weighs NC dental board appeal

October 15, 2014

Washington Supreme Court justices questioned opposing counsel Oct. 14 about the
extension of federal antitrust authority to the states professional regulatory boards as the
court heard oral arguments in Case 13-534, North Carolina State Board of Dental Examiners v. the
Federal Trade Commission.
The high court agreed to consider the NC board appeal of an FTC ruling, which the U.S. Court of
Appeals for the Fourth Circuit upheld, that the board violated antitrust law in attempting to preclude
non-dentist providers from engaging in the sale of teeth whitening services.
The ADA and other major health care organizations filed a friend-of-the-court brief supporting the
NC board. Other amicus briefs were filed for the state of West Virginia and 22 other states and by
the National Governors Association, the National Conference of State Legislatures and the Council
of State Governments.
If allowed to stand, the Fourth Circuit decision in support of the FTC would likely have
serious, negative consequences for the operations of professional boards throughout the
country, the Association said in a statement issued after the court heard oral arguments.
Justices who questioned dental board and
http://dental9039.blogspot.com/2014/03/hilo-dental-tangas-teniendo-sexo.html FTC counsel directed
much of their questioning to the tests a regulatory board must meet to gain state action antitrust
immunity and to the composition and supervision of boards.
A state regulatory agency does not lose its state action antitrust immunity simply because
the agency is run by part-time public officials who are also market participants in their personal
(sted person) capacities, NC board counsel Hashim Mooppan argued at the outset. But there
has to be some test, said Justice Samuel Alioto.
Why should there be an antitrust exemption for conduct that is not authorized by state
law? Justice Ruth Bader Ginsburg asked. The objection here was that this board was
issuing a whole bunch of cease and desist orders. They had no authority to do that. No authority at
all.
This whole thing turns to me on what the supervision consists of and whether its
good enough or not here, Justice Stephen Breyer said in an exchange with Malcolm Stewart,
the deputy solicitor general arguing the FTCs case. There are different things that
could qualify as active supervision, Mr. Stewart replied.
Several justices broached questions about tooth whitening services offered by non-dentists.
What would happen if the North Carolina courts were to decide tomorrow that whitening is
the practice of dentistry under this old statute, a reference to the pre-whitening era state
dental practice act. For all dental intents and purposes, just as if the North Carolina
legislature had specified that non-dentists cannot lawfully perform teeth whitening, that policy
choice would not be subject to second-guessing by the FTC or a federal antitrust court, said
Mr. Stewart.
Justice Sonia Sotomayor said the questions she and her colleagues were raising were important
for the rule that were going to announce not just in this case but to guide the
decision-making for future courtsSo what do we say? How do we articulate your
ruling? she asked the FTC counsel.
The court will decide the case by June 30, 2015.