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ADA Statement on the Supreme Court/North Carolina Dental Board Case

October 14, 2014

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Chicago – Virtually all states regulate the major professions in a way that best serves the public interest by establishing oversight or licensing agencies whose members include representatives of the respective professions.  The North Carolina legislature created the State Board of Dental Examiners as “the agency of the State for the regulation of the practice of dentistry.”  The legislature also specifically provided that removing “stains, accretions or deposits from the human teeth” is part of the practice of dentistry.  The Federal Trade Commission is effectively attempting to nullify this state adopted law on antitrust grounds.

When the Board acted to stop commercial, unlicensed teeth-whiting businesses from operating in North Carolina, the FTC charged that the action the Board took violated federal antitrust laws.  The Board challenged the ruling and the case eventually reached the United States Court of Appeals for the Fourth Circuit, which upheld the FTC’s position.  Contrary to what other US Courts of Appeal have ruled, the Fourth Circuit effectively held that professional boards that include a substantial number of members of the regulated profession will be considered “private actors” subject to personal liability under the antitrust laws unless they are actively supervised by the State. This is despite the fact that states establish these agencies through legislation and in the public interest, fully intending that they act for the states and comprise, at least in part, members having practical knowledge and experience in the field being regulated.   

If allowed to stand, the Fourth Circuit decision in support of the FTC would likely have serious, negative consequences for the operations of professional boards throughout the country. If the FTC is permitted to encroach on matters that have traditionally been left to the states, professional boards will be unwilling to take actions that they would otherwise deem appropriate, and might even find it difficult to find professionals willing to serve as board members. The Supreme Court has consistently held that the antitrust laws do not apply to actions taken by a state agency, and the ADA is confident that the court will confirm that the activities of professional boards should fall within this state action doctrine.  

The ADA and other major health care organizations, such as the American College of Surgeons and the American Medical Association, have filed an amicus brief supporting the North Carolina Board, as have 23 states and the National Governors Association, joined by the National Council of State Legislatures and the Council of State Governments.  

Editor’s Note: Reporters are invited to follow the ADA on Twitter @AmerDentalAssn

About the ADA

The not-for-profit ADA is the nation's largest dental association, representing 163,000 dentist members. The premier source of oral health information, the ADA has advocated for the public's health and promoted the art and science of dentistry since 1859. The ADA's state-of-the-art research facilities develop and test dental products and materials that have advanced the practice of dentistry and made the patient experience more positive. The ADA Seal of Acceptance long has been a valuable and respected guide to consumer dental care products. The monthly The Journal of the American Dental Association (JADA) is the ADA's flagship publication and the best-read scientific journal in dentistry. For more information about the ADA, visit For more information on oral health, including prevention, care and treatment of dental disease, visit the ADA's consumer website