Supreme Court justices chew on teeth-whitening dispute
By Lawrence Hurley WASHINGTON (Reuters) - The U.S. Supreme Court may have bitten off more than it can chew in a North Carolina case about whether the state dental board has the authority to regulate teeth-whitening services, with the justices appearing unsure how to rule. The legal battle was prompted by the U.S. Federal Trade Commission, which decided that the North Carolina State Board of Dental Examiners could be subject to antitrust claims because members of the profession it regulates also sit on the board. Although state entities are usually exempt from federal antitrust laws, the FTC said the exemption did not apply because it was not actively supervised by the state and that it was made up of self-interested private businesses. During a one-hour argument in the case on Tuesday, a majority of the nine justices seemed troubled that the state did not have more of a supervisory role over the board. But the justices also raised concerns about the potential drawbacks of a ruling in favor of the FTC. Justice Ruth Bader Ginsburg indicated that the board abused its authority when, starting in 2003, it sent cease-and-desist orders to non-licensed dentists in North Carolina who began providing teeth-whitening services. "It had no authority to do that," she said. Along similar lines, Justice Sonia Sotomayor noted that the board members "have a self-interest that is inherent." But the FTC's approach also faced some skepticism, with Justice Stephen Breyer one of several to point out the advantages of specialists having a role policing the profession in which they work. He said there would be a problem if, for example, neurologists were not allowed to use their specialist knowledge to weigh the qualifications of someone applying to work in the field. "That, to me, spells danger," he said. The FTC filed an administrative complaint against the board in 2010, claiming it violated a section of the Federal Trade Commission Act that prohibits unfair methods of competition and deceptive acts and practices in commerce. The FTC has said in court filings that the board is more akin to a trade association and is seeking to exclude non-dentists from the teeth-whitening market in order to freeze out potential competitors. Prior to the board's action, teeth-whitening services that were cheaper than those provided by dentists were available at malls and salons. Under North Carolina law, it has not been specified if teeth-whitening is a service that is exclusively under the purview of dentists. The case before the Supreme Court could determine to what extent other types of state regulators around the country can be shielded from claims of anticompetitive activity. In May 2013, the Richmond-based 4th U.S. Circuit Court of Appeals ruled in favor of the FTC. A Supreme Court ruling is due by June. The case is North Carolina Board of Dental Examiners v. FTC, U.S. Supreme Court, No. 13-534.
