AAPD Joins Supreme Court Brief in Support of North Carolina Dental Board vs. FTC

The U.S. Supreme Court recently accepted a certiorari petition to hear the case of The North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The AAPD contributed to the cost of and joined an Amici Curiae (friends of the court) legal brief in support of the North Carolina Dental Board.  The brief was filed on May 30, 2014, and the Supreme Court is expected to hear oral arguments in the case this fall.  Other organizations joining the brief include the American Dental Association (who had their outside law firm Sidley Austin write the brief), American Osteopathic Association, American Veterinary Medical Association, American Association of Orthodontists, American Association of Dental Boards,  Federation of State Medical Boards, American College of Surgeons, and The Litigation Center of the American Medical Association and the State Medical Societies.
Background:  In 2012 the AAPD joined an Amici Curiae legal brief filed with the U.S. Court of Appeals for the Fourth Circuit in this case.  That legal brief supported the North Carolina Dental Board in seeking reversal of an 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 FTC alleges that professional boards are inherently questionable because of their financial interest in the subject matter they are charged with regulating.  Unfortunately, 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.  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.
This case is a significant matter which calls into question the existence and legitimacy of all professional state dental boards in the country.  Both the Fourth Circuit and Supreme Court Amici briefs argue 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.  However, in an extraordinary power grab, the FTC would like to position itself as a super-regulatory body able to second guess decisions of all state medical and dental boards.  This is clearly an affront to federalism and state regulatory powers.  The briefs did not take a position on the specific tooth whitening regulation of the North Carolina board.
For further information contact COO and General Counsel C. Scott Litch at (312) 337-2169, ext. 29, or slitch@aapd.org.

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