North Carolina State Board of Dental Examiners v. Federal Trade Commission
Issues
Whether state-action immunity should be given to a state regulatory board that is dominated by professionals in the regulated market.
The Federal Trade Commission (“FTC”) alleges that the North Carolina Board of Dental Examiners (“Board”) has engaged in unfair methods of competition by trying to exclude non-dentists from the teeth-whitening market. The Supreme Court will now determine two legal issues: (1) whether the Board is a public actor or private actor for purposes of federal antitrust liability; and (2) if the Board is a private actor, whether the Board is subject to active supervision by the state. The Board argues that it is a public actor and thus does not need “active supervision” to be immune from federal antitrust law. The FTC argues that the Board is a private actor and is not subject to active state supervision. The Supreme Court’s resolution of this case will impact both the efficacy of future state regulatory boards and the balance of federalism.
Questions as Framed for the Court by the Parties
Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.
The North Carolina State Board of Dental Examiners (“Board”), enacted by the Dental Practice Act, N.C. Gen. Stat. § 90–48, is a state agency comprised of six licensed dentists, one licensed dental hygienist, and one consumer member. See N.C. State Bd. of Dental Examiners v.
Edited by
The authors would like to thank Professor George A. Hay for his insight into this case.
Additional Resources
- Angus Loten and Sarah E. Needleman: State Licensing Boards Under Fire From Within, The Wall Street Journal (Aug. 27, 2014).
- Mary Otto: Are medical, dental boards public or private? Case over teeth-whitening services may decide, Association of Health Care Journalists (Aug. 13, 2014).
- Daniel Powers: North Carolina Dental Board Urges Reversal of FTC’s “Radical” Stance on State Action Immunity, The National Law Review (Sept. 5, 2014).
- Campbell Robertson: A Clash Over Who is Allowed to Give You a Brighter Smile, The New York Times (May 25, 2013).