March 04, 2015
Supreme Court Issues Ruling in North Carolina State Board of Dental Examiners v FTC
The U.S. Supreme Court issued its opinion in the North Carolina State Board of Dental Examiners v FTC case. Unfortunately, the Supreme Court affirmed the decision which was a defeat for the North Carolina State Board of Dental Examiners. The ruling hinged on the board’s structure and not the topic of whitening. ASA staff is analyzing the decision to determine its implications.
It is important to note, the North Carolina Board was structured differently than most in that its members were elected by North Carolina dentists and not appointed by the governor. Members of most state boards are appointed by their governors through a formal process and as such those boards are at less risk of antitrust concerns.
In May 2014, ASA joined the American Medical Association, the American Dental Association, and other healthcare groups in a friend of the court brief on this FTC case. Under review was 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 was whether the board's actions were immune from antitrust prosecution under the 'state action doctrine.'
In correspondence and a face-to-face meeting, 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.
In 2013, the ASA joined a similar friend of the court brief before the Supreme Court in support of the North Carolina State Board of Dental Examiners’ request for review of the appellate court’s decision. The request for Supreme Court review was approved in March.
The opinion was written by Justice Kennedy. Three Justices dissented.
The opinion is available at http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf