North Carolina’s dentists were not smiling when a three judge panel of the U.S. Court of Appeals for the Fourth Circuit sided with the Federal Trade Commission in a challenge to the State Board of Dental Examiners’ policy that only dentists could perform teeth whitening.  On July 15, 2013, the board filed a petition asking the full court to reconsider the panel’s May 31, 2013 decision.  N.C. State Bd. of Dental Examiners v. FTC, No. 12-1172.

The dispute centers on whether the state action doctrine shields the board’s policy from antitrust scrutiny.  That doctrine holds that state actors need only show that the state had a clearly articulated policy to displace competition with regulation.  However, private parties invoking the doctrine must also show that they are actively supervised by the state.  The Fourth Circuit panel concluded that since the board is composed of licensed dentists who have a financial interest in the market and are answerable to other members of the profession with a similar interest, the board needed to demonstrate active state supervision.  The board countered that it is a state agency and therefore does not need to satisfy this additional requirement.

The North Carolina State Bar, and the National Association of Boards of Pharmacy together with the North Carolina Board of Pharmacy and North Carolina Board of Physical Therapy Examiners, submitted amici briefs supporting the dental board’s petition.