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FTC issues new guidance to assist state regulatory boards in avoiding antitrust violations

October 16, 2015 Washington — The Federal Trade Commission issued new guidance Oct 15 to assist state regulatory boards in avoiding conflicts where potential antitrust violations can occur.

The commission said that its FTC Staff Guidance on Active Supervision of State Regulatory Boards Controlled by Market Participants was prompted by the U.S. Supreme Court decision in FTC vs. North Carolina State Board of Dental Examiners. The court ruled that actions taken by state professional boards composed of market participants would be exempt from the antitrust laws as state action only if the state provided active supervision for those actions.

Since the issuance of the decision, state attorneys general, professional boards and other groups have been struggling with what kind of active supervision is necessary to meet that requirement.  

According to the FTC, the purpose of the new guidance is "to identify certain overarching legal principles governing when and how a state may provide active supervision for a regulatory board."

The document also stresses that the FTC is "not suggesting a mandatory or one-size-fits all approach to active supervision" but urging each state's regulatory board to consult with its Attorney General on how to best comply with antitrust laws.