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Supreme Court weighs NC dental board appeal

October 15, 2014

By Craig Palmer

Washington – Supreme Court justices questioned opposing counsel Oct. 14 about the extension of federal antitrust authority to the states’ professional regulatory boards as the court heard oral arguments in Case 13-534, North Carolina State Board of Dental Examiners v. the Federal Trade Commission.

The high court agreed to consider the NC board appeal of an FTC ruling, which the U.S. Court of Appeals for the Fourth Circuit upheld, that the board violated antitrust law in attempting to preclude non-dentist providers from engaging in the sale of teeth whitening services.

The ADA and other major health care organizations filed a friend-of-the-court brief supporting the NC board. Other amicus briefs were filed for the state of West Virginia and 22 other states and by the National Governors Association, the National Conference of State Legislatures and the Council of State Governments.

“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,” the Association said in a statement issued after the court heard oral arguments.

Justices who questioned dental board and FTC counsel directed much of their questioning to what would qualify state boards for antitrust immunity and to the composition and supervision of state boards.

“A state regulatory agency does not lose its state action antitrust immunity simply because the agency is run by part-time public officials who are also market participants in their personal capacities,” NC board counsel Hashim Mooppan argued at the outset. But there has to be some test, said Justice Samuel Alioto.

“Why should there be an antitrust exemption for conduct that is not authorized by state law?” Justice Ruth Bader Ginsburg asked. “The objection here was that this board was issuing a whole bunch of cease and desist orders. They had no authority to do that. No authority at all.”

“This whole thing turns to me on what the supervision consists of and whether it’s good enough or not here,” Justice Stephen Breyer said in an exchange with Malcolm Stewart, the deputy solicitor general arguing the FTC’s case. “There are different things that could qualify as active supervision,” Mr. Stewart replied.

Several justices broached questions about tooth whitening services offered by non-dentists. “What would happen if the North Carolina courts were to decide tomorrow that whitening is the practice of dentistry under this old statute,” a reference to the pre-whitening era state dental practice act. “For all intents and purposes, just as if the North Carolina legislature had specified that non-dentists cannot lawfully perform teeth whitening, that policy choice would not be subject to second-guessing by the FTC or a federal antitrust court,” said Mr. Stewart.

Justice Sonia Sotomayor said the questions she and her colleagues were raising were important “for the rule that we’re going to announce not just in this case but to guide the decision-making for future courts…So what do we say? How do we articulate your ruling?” she asked the FTC counsel.

The court will decide the case by June 30, 2015.