US Supreme Court Upholds FTC Decision Against NC Dental Board

As previously reported herein, the Federal Trade Commission ruled that the North Carolina State Board of Dental Examiners may not issue Cease and Desist Orders to unlicensed persons performing teeth whitening. The Fourth Circuit upheld this ruling, and yesterday the Supreme Court upheld the Fourth Circuit’s decision. In an opinion by Justice Kennedy, the Court held “that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal’s active supervision requirement in order to invoke state-action antitrust immunity.”

The Court then ruled for the FTC because ‘[t]he Board does not claim that the State exercised active, or indeed any, supervision over its conduct regarding nondentist teeth whiteners[.]” Justice Alito, in dissent, argued that the board is “a full-fledged state agency” entitled to immunity.

Board of Dental Examiners v. Fed. Trade Comm’n, No. 13-534 (U.S. Feb. 25, 2015)

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