Dentists Have No Right To Limit Who Can Whiten Your Teeth, Justices Say

February 26, 2015

The U.S. Supreme Court ruled Wednesday that the North Carolina dental board does not have the authority to regulate teeth-whitening services. By a 6-to-3 vote, the court said that the state board, composed mainly of dentists, violated the nation’s antitrust laws by regulating the activity of competitors.

Teeth whitening at a dentist’s office can be expensive, so non-dentists started offering the service at a lower price at spas and shopping centers in North Carolina. The state board of dental examiners, which consists mainly of dentists, accused the whitening businesses of practicing dentistry without a license, and ordered them to stop or face potential criminal charges.

At that point, the Federal Trade Commission intervened to block the board’s actions. A lower court sided with the FTC, agreeing that state regulatory power ends when it gives private dentists the power to unlawfully knock out their competitors for personal gain.

On Wednesday, the Supreme Court sided with the FTC too. Writing for the six-justice majority, Justice Anthony Kennedy said that it is not even clear under North Carolina law that teeth whitening “constitutes the practice of dentistry.” He noted that states are normally immune from the federal antitrust laws. But in a case like this, where private dentists dominate a state board, he said, there is too great a risk of “self-dealing.”

The solution to such a risk, he observed, is clear and active supervision by disinterested state authorities, and that did not exist in North Carolina.

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