Supreme Court Hears State Petition to Halt FTC Overstep

Today, the U.S. Supreme Court heard oral arguments in North Carolina Board of Dental Examiners v. Federal Trade Commission (FTC). The Court reviewed a federal appellate court’s decision to uphold a FTC order in North Carolina, which said 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. The issue in this case is whether the antitrust “state action doctrine” protects the work of state licensure boards. The American Society of Anesthesiologists (ASA) joined the American Medical Association, the American Dental Association, and other health care groups in 2013 and 2014 amicus (friend of the court) briefs, which were submitted to the U.S. Supreme Court on behalf of the North Carolina Board of Dental Examiners.

The FTC argued before the Court today that the state action doctrine does not protect state licensing boards from antitrust scrutiny, and that the North Carolina Board of Dental Examiners was engaged in “unsupervised anticompetitive conduct.” The North Carolina Board of Dental Examiners argued that the FTC is breaking from 70 years of case precedent by finding that the Board be treated as a “private” actor (and not a state actor) since a majority of the Board’s members are, under state law, market participants elected to their positions by other market participants (in this case, dentists elected by other dentists).

There is a 150-year tradition of states regulating health care practitioners practicing within each state. The FTC’s arguments, if condoned by the Supreme Court, would mean state legislatures would be forced to bend their wills to the FTC’s preferences as to both the composure of state regulatory boards and how they are chosen. This would be a huge overstep by the federal government into those issues that are delegated to the states by the U.S. Constitution.

The U.S. Supreme Court usually does not issue opinions until the summer months; the ASA Department of State Affairs will be monitoring this process closely and will report on the opinion when it is announced. If you are interested in listening to North Carolina Board of Dental Examiners and FTC’s oral arguments, they will be available to stream at the end of the week at http://www.supremecourt.gov/oral_arguments/argument_audio/2014.