CDA evaluates Supreme Court dental board ruling

CDA is currently evaluating what impact, if any, a recent ruling by the U.S. Supreme Court could have for dental boards across the country, including California.

The case involves the Federal Trade Commission and the North Carolina Dental Board, which issued cease and desist orders against nondentist teeth whitening service providers and product manufacturers, claiming that teeth whitening constitutes the practice of dentistry. In 2010, the FTC filed an administrative complaint claiming the board engaged in anticompetitive behavior.

The cased ended up before the Supreme Court, and while there was no discussion or ruling on the question of whether teeth whitening constitutes the practice of dentistry, the justices ruled that a state board, on which a controlling number of decision-makers are “active market participants,” e.g., dentists, must be actively supervised by the state in order for a legal doctrine, known as the state-action antitrust immunity, to apply. The NCDB had argued that as a state board, its actions were immune from antitrust laws.

Although the case does not clearly articulate the standard for active state supervision, there are significant differences between the structure and processes in North Carolina versus California. For example, in North Carolina, six of the eight board members are dentists and are elected by other dentists in the state. In California, eight of the 15 board members are dentists, and all of the members are appointed by the governor, the Senate Rules Committee or the Speaker of the Assembly. In addition, there is no mechanism in statute for removal of a NCDB member, whereas in California, there is a specific statute that allows the governor to remove members for neglect of duty or unprofessional conduct. Also, California’s board reports to the Department of Consumer Affairs and undergoes a legislative sunset review process, which are good examples of “active state supervision” that is required to apply the state-action immunity under the antitrust case law. 

CDA will continue to evaluate the possible impact of the case in California. If you have questions about the decision, please contact Gayle Mathe at gayle.mathe@cda.org.