May 2020 Volume LV Number 3


Litch's Law Log: Federal Appellate Court Affirms FTC Cease and Desist Order Against North Carolina Dental Board

September 2013 Volume XLIX Number 5

PDT readers might recall that in 2012 the AAPD joined an Amici Curiae (friends of the court) legal brief filed with the U.S. Court of Appeals for the Fourth Circuit in the case of North Carolina State Board of Dental Examiners v. the Federal Trade Commission (FTC). This brief supported the North Carolina dental board in seeking reversal of a 2011 FTC decision. The FTC ruled that the North Carolina board acted in an anticompetitive manner and in violation of federal antitrust laws by issuing cease-and-desist orders against non-dentist entities engaged in tooth whitening services. The board also attempted to dissuade others from entering the market for teeth whitening services, and to persuade mall owners and landlords not to rent facilities where non-dentists might provide such services.
This case calls into question the existence and legitimacy of all professional state dental boards in the country. The amicus brief argued that state dental boards, contrary to the FTC's overreaching assertions, are acting as state agencies that are not subject to federal antitrust laws. One of state dental boards' main duties is to protect the public from the unauthorized practice of dentistry. The brief did not take a position on the specific tooth whitening regulation of the North Carolina board. Other organizations joining the brief along with the AAPD were the American Dental Association (who had their outside law firm Sidley Austin write the brief), American Osteopathic Association, American Veterinary Medical Association, American Academy of Periodontology, American Association of Orthodontists, American Association of Dental Boards, and Federation of State Medical Boards.
On May 31, 2013, a three-judge panel of 4th U.S. Circuit Court of Appeals in Richmond, Va. issued an opinion holding that the North Carolina Board of Dental Examiners had violated the federal antitrust laws by engaging in an unreasonable restraint of trade. In reaching its decision, the court found that the board's actions did not fall within the exception to antitrust law that protects conduct by states or state agencies, noting that the actions were not adequately authorized or supervised by the state itself. They stated: "At the end of the day, this case is about a state board run by private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market." The court relied in part on the fact that the members of the board were elected by the dental community and not appointed by the governor.
The ADA's General Counsel Craig Busey has stated that:
"Frankly, we are disappointed in the court's failure to recognize that professional boards created by the state in accordance with state mandates are in fact state agencies acting on state authority. We are concerned that this ruling may discourage dental or medical boards from fulfilling their state-appointed mission for fear of intervention by the FTC."
Busey has noted that a wider impact from this decision may be limited by some facts of this case, namely that the board was represented by private counsel and the state never intervened in the proceedings. The court stated that:
"Despite these actions [by the board], if the board was actively supervised by the state, it would be entitled to the [state action] exemption."
Busey suggests that other dental boards and other health professions boards may wish to review their procedures to ensure that their actions fall within the state action exemption. The dental board may elect to challenge this decision in two different ways. It may petition the 4th Circuit for a "rehearing en banc," meaning a rehearing before all of the judges who sit on the 4th Circuit Court of Appeals, or it may seek review of the decision by the U.S. Supreme Court through a writ of certiorari. If it chooses the latter, the board has 90 days from the date of the opinion in which to ask the North Carolina Supreme Court to review the case, although that court is not required to accept the appeal.
For further information contact Chief Operating Officer and General Counsel C. Scott Litch at (312) 337-2169, ext. 29, or