US Supreme Court Schedules Oral Arguments in Case Seeking to Halt FTC Overstep

Last week the U.S. Supreme Court announced on October 14 it would hear arguments in North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC). Under review is a federal appellate court’s decision to uphold a 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. In 2013 and 2014, the American Society of Anesthesiologists (ASA) joined the American Medical Association, the American Dental Association, and other health care groups in friend of the court (amicus) briefs submitted before the U.S. Supreme Court concerning the FTC case.

In correspondence and a face-to-face meeting, the ASA has previously expressed concern to the FTC about the Commission’s letters to state medical boards and legislatures, prompting boards and legislatures to take action contrary to patient safety. Beyond the amicus briefs, this April the ASA submitted formal comments to the FTC strongly urging the agency to modify its current position on the application of the state action doctrine to state licensing authorities and end its related enforcement policies against those agencies. The comments further detailed the importance of states regulating health professionals, which promotes competition that leads to high quality care and the protection of patient safety.

Previous ASA letters

2014 Amicus Brief: NCBDE v. FTC

2013 Amicus Brief: NCBDE v. FTC

ASA Comments to FTC on Health Care Competition