Can Dentists Bar Competition Over Teeth-Whitening?

October 14, 2014

Teeth-bleaching isn’t brain surgery, although the Supreme Court seemed to find a link between the two in an antitrust case argued on October 14, 2014.

Among the questions before the justices is whether it is unfair under federal law for a state regulatory board made up mostly of dentists to prevent lower-cost competitors who aren’t dentists from offering teeth-whitening services.

The outcome could turn on how the justices’ decision affects brain surgeons, lawyers and others whose practices often are regulated by other members of their professions.

The court’s consideration of the dispute between the North Carolina State Board of Dental Examiners and the Federal Trade Commission is being closely watched by the growing number of occupations that require licenses and state supervision, often in the form of boards made up of people in the same businesses and sometimes elected by their peers. The federal appeals court in Richmond, Virginia, sided with the FTC in ruling that the board engaged in unfair competition.

On October 14, 2014, several justices worried aloud about discouraging people from serving on these state boards by opening their decisions to second-guessing by the courts. Justice Stephen Breyer was among members of the court who wanted to be sure that, whatever the court decides, it does not take away authority from the people who know best.

He invoked a fictitious board of neurologists to make his point. “We would like this group of brain surgeons to decide who can practice brain surgery in this state. I don’t want a group of bureaucrats deciding that,” Breyer said.

The court has long accepted that the some actions that otherwise would raise antitrust concerns are allowable if they are done by states. The court is wrestling with whether the dental board is acting mainly in the interests of dentists or the public, which would protect its decisions from complaints about unfair competition.

In 2006, the North Carolina dental board warned operators of teeth-whitening kiosks in malls and tanning salons that they were practicing dentistry without a license. The board also sent cease-and-desist letters to malls where the kiosks operated.

The teeth-whitening businesses were pressured into closing and customers turned instead to higher-priced dentists who generally charged $300 to $700 for over-the-counter kits.

The warnings and letters seemed to go beyond the board’s powers, Justice Ruth Bader Ginsburg said.

“Why should there be an antitrust exemption for conduct that is not authorized by state law? 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,” Ginsburg said. The dental board is allowed to send the letters, but lacks the authority to enforce them, said Hashim Mooppan, the board’s Washington-based lawyer.

Courts across the country have been asked to rule on similar issues. In early October, a judge in Alabama rejected a complaint against that state’s dental board and upheld restrictions on teeth-whitening services as “reasonably designed to protect the health of Alabama citizens.”

Justice Sonia Sotomayor urged Justice Department lawyer Malcolm Stewart to help the court come to a decision that might be applied broadly rather than one that “will involve us in case after case trying to decide how far too far is.”

Sotomayor has acknowledged a close friendship with a dentist who did more than $15,000 worth of dental work on her mouth before she joined the Supreme Court in 2009. Their relationship is so warm that Sotomayor is godmother to the dentist’s son, the justice said at a January appearance in Washington. (By Mark Sherman)

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