US Supreme Court says NC dental board can’t regulate teeth whitening

Women sit in a row while having their teeth whitened at the Southern Women’s Show at the Charlotte Merchandise Mart in 2007.
Women sit in a row while having their teeth whitened at the Southern Women’s Show at the Charlotte Merchandise Mart in 2007. CHARLOTTE OBSERVER FILE PHOTO

The U.S. Supreme Court ruled Wednesday that the North Carolina state dental board does not have the authority to regulate teeth whitening services, a decision with the potential to transform the makeup and reach of similar licensing boards across the country.

On a 6-3 vote, the U.S. justices ruled for the U.S. Federal Trade Commission, which had reined in the N.C. Dental Board of Examiners several years ago after teeth whitening businesses complained about cease-and-desist letters they had received.

The dental board had tried to shut down teeth whitening services at mall kiosks, salons and other retail spaces unaffiliated with dental offices. The FTC ruled that the purpose of the letters, dating back at least seven years, “was to block expansion of teeth whitening kiosks in shopping malls.”

The North Carolina board contended that services offered by the businesses – such as providing a customer with a personal tray, whitening solution, mouthpiece and/or LED light and providing advice or guidance on how to use them – constituted the practice of dentistry.

The FTC has said in court filings that the North Carolina dental board, made up of six dentists appointed not by state officials but by other dentists is more akin to a trade association.

In an opinion written by Justice Anthony Kennedy, a majority of justices agreed with the FTC’s claim that although state entities are usually exempt from federal antitrust laws, the North Carolina dental board was not because of the makeup of its membership and a lack of active supervision by the state.

The exemption, Kennedy wrote, does “not authorize the states to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies.”

Joined by Chief Justice John Roberts, Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, Kennedy further added that if a state wanted to rely on active market participants as regulators, there must be supervision by that state.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas were the dissenters.

Alito, in a dissent opinion for the three, called the court’s decision a “serious misunderstanding” of how state-action antitrust immunity is supposed to work. Though “professional and occupational licensing requirements have often been used” to serve an industry, not the public, the three dissenters said, the ruling “will create practical problems and is likely to have far-reaching effects on the states’ regulation of professions.”

Impact on other boards

Bobby White, the North Carolina dental board’s chief operating officer, said Wednesday that the ruling posed questions not only for the state’s dental licensing board. Many other licensing boards across the country are structured similarly, he pointed out.

This past March, when the U.S. Supreme Court agreed to take up the North Carolina case, Dr. Ardis Dee Hoven, then president of the American Medical Association, released a statement.

Previous rulings in favor of the FTC, she said, allowed “a federal agency with no particular knowledge of medicine or dentistry to strip authority away from experts who are charged by a state legislature to shield patients from unlawful practice.”

“State regulatory boards acting to fulfill the directives of state law should be free to make decisions on public health issues without fear of second-guessing under the federal antitrust laws,” the AMA statement said.

White said his board would seek guidance from the North Carolina legislature on the next steps. The case for the dental board, White said, was less about teeth whitening businesses and more about the regulatory breadth.

“There is potential for sweeping changes to regulatory boards across the country because of this,” White said.

Dr. Robert M. Wah, the current president of the American Medical Association, issued a statement after the ruling echoing White’s comment. He added that the association would work with other physician organizations on policy changes that consider antitrust rulings while ensuring patient protections.

“State medical boards are authorized by state governments to regulate medical licensing and medical practice in the interest of patient safety,” Wah said. He added that the medical association agreed with the dissenting justices that the Wednesday “decision ‘will spawn confusion’ by creating far-reaching effects on the jurisdiction of states to regulate medicine and protect patient safety.”

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