What started as an attempt by the N.C. Board of Dental Examiners to kick teeth-whitening services out of mall kiosks, spas and other retail spaces has morphed into a major legal battle with the potential to transform the makeup and reach of similar licensing boards across the country.
The U.S. Supreme Court is scheduled on Oct. 14 to take up a case brought by the dental examiners board against the Federal Trade Commission.
At issue is whether the North Carolina board, made up of dentists, overstepped its regulatory bounds when starting to send cease-and-desist letters seven years ago to teeth-whitening businesses unaffiliated with dental offices. The FTC ruled several years ago that the board engaged in unfair trade practices, and the board has challenged that up to the U.S. Supreme Court.
The high court’s decision could have sweeping repercussions for how states regulate varied fields – from dentistry to health care to law.
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The North Carolina dental board argues that state law allows people and companies not licensed to practice dentistry to sell teeth whitening products for use at home.
But, the North Carolina board contends, any service provided with teeth whiteners – including offering advice, guidance or providing a customer with a personal tray, whitening solution, mouthpiece and/or LED light – constitutes the practice of dentistry.
The board also argues that providing a place to use the products also constitutes dentistry.
Forty-two times, according to a 2010 complaint filed by the Federal Trade Commission, North Carolina’s dental board sent letters to teeth-whitening services in which the providers were told they were practicing dentistry without a license.
At least six times, according to the complaint, the dental board “threatened and discouraged” people without dental licenses who had considered opening whitening services from doing so unless they were under the direct supervision of a licensed dentist.
The board sent out 11 letters to mall owners and property management companies with interests in approximately 27 malls telling them that whitening services at mall kiosks were illegal.
“The purpose of those letters,” the FTC complaint states, “was to block the expansion of teeth whitening kiosks in shopping malls.”
Such actions, according to the FTC complaint, “have had and will have the effect of restraining competition unreasonably and injuring consumers” in several ways.
Consumers are deprived of “the benefits of price competition” and choice of services, according to the FTC.
At the time when such businesses were booming, licensed dentists were known to charge double or sometimes triple the prices of the kiosks for teeth whitening.
The FTC ordered the North Carolina dental board, which was created by the N.C. General Assembly, to stop sending warning notices to the nonlicensed teeth-whitening services.
The board challenged the FTC ruling, arguing that the federal government was interfering with the ability of a state regulatory board to protect public health and safety.
An administrative law judge and two higher courts disagreed, laying out a path for the country’s highest court to weigh in on a case that has caught the attention of the American Medical Association, veterinarians, optometrists, orthodontists, anesthesiologists and law bars.
A 4th Circuit U.S. Court of Appeals three-judge panel found the North Carolina dental board – with its six dentists appointed by other North Carolina dentists, not state officials – to be a private party not subject to state oversight.
Had there been state oversight, the three-judge panel ruled, and not “private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market,” the board could have been exempt from antitrust law.
As the North Carolina dental board continues to challenge the ruling, 23 states have expressed a legal interest in the case and signed on to a friend-of-the-court brief.
Many medical and health care organizations also filed friend-of-the-court briefs.
The organizations typically appoint doctors, lawyers and other professionals from the field to oversee their own.
Dr. Ardis Dee Hoven, president of the American Medical Association, released a statement in March, when the U.S. Supreme Court agreed to take up the case.
The 4th Circuit ruling, he said, “allows a federal agency with no particular knowledge of medicine or dentistry, to strip authority away from experts who are charged by a state legislature to shield patients from unlawful practice.”
“State regulatory boards acting to fulfill the directives of state law should be free to make decisions on public health issues without fear of second-guessing under the federal antitrust laws,” the AMA statement said.
Bobby White, the North Carolina dental board’s chief operating officer, said many organizations consider the case not only to be a test of the extent of power of state regulatory boards but also measure the breadth of the FTC’s control.
“The FTC is always trying to push the corners of its envelopes as far as it can,” White said.