Washington – The U.S. Supreme Court will hear oral arguments Oct. 8 in North Carolina Board of Dental Examiners v. Federal Trade Commission, a case in which the U.S. Court of Appeals for the Fourth Circuit upheld an FTC ruling that the board violated federal antitrust law in attempting to preclude non-dentist providers from engaging in the sale of teeth whitening services.
The dental board contends that its actions are not subject to challenge because the federal antitrust laws are not applicable to acts by a state or its agencies. The case is significant because of its potential impact on professional boards as argued by the ADA, various associations and state attorneys general.
Following the appeals court decision, the ADA led an effort to file briefs with the Supreme Court in support of the board's petition for review and its position on the merits of the case. The Association's efforts garnered support from professional organizations including the American Medical Association, American Osteopathic Association, American Association of Dental Boards and Federation of State Medical Boards and also resulted in the filing of a separate brief by the attorneys general of 21 states.
The formal statement of the question presented for Supreme Court review is this: 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.
Oral arguments give an attorney from each side an opportunity to make a presentation to the court and answer questions posed by the justices. A decision will be rendered during the 2014-2015 term, probably in the first few months of next year.