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On March 3, the U.S. Supreme Court announced it would hear arguments in North Carolina State Board of Dental Examiners v. FTC.
Under review is a federal appellate court’s decision to uphold a Federal Trade Commission (FTC) order that the North Carolina State Board of Dental Examiners violated federal antitrust laws when it issued cease-and-desist letters to non-dentist teeth-whitening providers in the state. At issue is whether the antitrust "state action doctrine" protects the work of state licensure boards. The American Society of Anesthesiologists (ASA®) believes actions of state medical boards such as scope of practice actions are, and should be, immune from antitrust challenge, even if the board consists primarily or entirely of practicing physicians.
The ASA joined the American Medical Association, the American Dental Association, and other healthcare groups in a friend of the court brief in support of the North Carolina State Board of Dental Examiners’ request for review of the appellate court’s decision. That brief was filed November 27, 2013. The brief provided in part “…It is not the job of the FTC—applying the ‘gauzy cloak’ of the federal antitrust laws—to pass judgment on the procedures and policy decisions of a duly constituted agency of state government.”
Arguments for the case will likely be heard in the fall after briefs have been filed this spring. ASA staff will continue to monitor this case and provide updates.
In correspondence and a face-to-face meeting, ASA had previously expressed concern to the FTC about the Commission’s letters to state medical boards and legislatures inducing boards and legislatures to take action contrary to patient safety.
Previous ASA letters
