FTC Alleges Suppression of Competition for Teeth Whitening Services

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

Dentists in North Carolina, acting through the state dental board, colluded to exclude non-dentists from competing in the provision of teeth whitening services, the FTC has alleged in an administrative complaint. The actions of the dental board unreasonably restrained competition and violated Sec. 5 of the FTC Act, according to the complaint.

The state dental board purportedly decided that the provision of teeth whitening services by nondentists constituted the unauthorized practice of dentistry.

The board allegedly engaged in extra-judicial activities aimed at preventing non-dentists from providing teeth whitening services in North Carolina, unilaterally ordering non-dentists to stop providing whitening services.

State Action Immunity

The agency contended that the board’s conduct was not shielded from FTC challenge by the state action immunity doctrine.

“Without active supervision by a disinterested state authority, a regulatory board whose members have a financial interest in the industry it is charged with regulating cannot exclude its competitors from the marketplace,” said FTC Bureau of Competition Director Richard Feinstein.

“The North Carolina Dental Board does not have authority to decide on its own to limit the whitening services available to North Carolina residents, and its actions have decreased competition and harmed consumers,” according to Feinstein.

The FTC seeks an order prohibiting the board from engaging in the challenged conduct. The Commission vote approving the administrative complaint was 4-0-1, with Commissioner Julie Brill recused.

The case is In the Matter of The North Carolina Board of Dental Examiners, FTC File No. 081 02137, June 17, 2010. Further details, and the text of the administrative complaint, appear here on the FTC website and at CCH Trade Regulation Reporter ¶16,465.