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ADA backs N.C. board in FTC fight

December 09, 2013

By Kelly Soderlund, ADA News staff

The ADA is supporting the efforts of the North Carolina Board of Dental Examiners to persuade the U.S. Supreme Court to review a lower court's decision affirming the Federal Trade Commission's claim that the board's actions against teeth whiteners violated federal antitrust laws.

On May 31, the 4th U.S. Circuit Court of Appeals, in a case arising from a FTC enforcement proceeding, issued an opinion stating that the dental board, in issuing cease and desist orders against certain purveyors of teeth cleaning, had violated federal antitrust laws by engaging in unfair competition in the market for teeth-whitening services in North Carolina.

In November, the ADA engaged outside counsel to file a brief in court supporting the board's petition
to have the U.S. Supreme Court to review the case and the appeals court's decision. The ADA also enlisted the support of the American Medical Association, American Osteopathic Association, American Veterinary Medicine Association, American Association of Orthodontists, American Association of Dental Boards and other associations as parties to the brief.

The brief was filed Nov. 27, and the ADA now waits to see whether the Supreme Court will accept the case.

“The importance of this case to our members is that permitting the FTC to challenge the actions of dental boards, which are agencies of the state, severely restricts the ability and the willingness of the boards to do what they were constituted to do, including regulating the practice of dentistry,” said Craig Busey, ADA general counsel. “Moreover, one of the real issues here is whether the federal government should be allowed to assert itself in matters that are clearly within the domain of the states.”

The ADA divisions of legal affairs and governmental affairs lent their services by soliciting several state attorneys general to file their own brief supporting the board's petition to the court. ADA staff reached out to the solicitor general of West Virginia, who drafted the states' brief, and engaged an outside consultant to contact a number of other attorneys general to urge their participation.

Ultimately, at least 10 attorneys general joined the brief.

“The efforts of the ADA, not only in soliciting the support of other professional associations, but also in making direct contact with the attorneys general of various states to engage their participation in a supporting brief, demonstrate the ways in which the agencies within the Association can collaborate effectively to support the interests of its members,” Mr. Busey said.