Court Monitor

Court Sides with Teeth Whiteners

There has been a long-running turf battle between dentists and non-dentists over whether only dentists can provide the service of teeth whitening. Stains and yellowing of teeth can easily be whitened with new technology, and it can be done more cheaply by non-dentists who have not paid for all the training and licensure requirements of dentists.

Not surprisingly, dentists have opposed this competition from less-qualified teeth whiteners, some of whom even whiten the teeth of passers-by from kiosks in malls, without incurring the overhead expense of a dental office.

In North Carolina, the state laws are silent on the issue of teeth whitening and dentistry. But the North Carolina State Board of Dental Examiners, the governing body that licenses the practice of dentistry, shut down all teeth whitening services by non-dentists by sending them threatening letters. A majority on this state dental board were practicing dentists themselves, who stood to benefit from less competition.

The Federal Trade Commission cried foul at this anti-competitive, self-serving attempt by the dental board to quash the competition. At one point the dental board even sent letters to operators of malls, claiming that teeth whiteners at kiosks were in violation of the Dental Practice Act and recommending that the malls consider expelling them from the premises. The FTC then sued the state board, and this case went all the way to the U.S. Supreme Court. N.C. State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015).

At issue in this case was the application of the Sherman Act, a towering achievement by Republicans in 1890 to prohibit conspiracies against competition. Sponsored by Senator John Sherman of Ohio, the brother of Civil War General William Tecumseh Sherman, the Sherman Act and its progeny of court decisions interpreting it have been imitated by the European Union in fostering competition. But while foreign countries and the European Union allow some cartels, the United States does not. The Sherman Act prohibits any arrangements by competitors to fix prices, and outlaws most attempts by them to exclude competition.

The Sherman Act protects competition but is not supposed to infringe on federalism, or states' rights. "State-action immunity" is supposed to protect state government against antitrust lawsuits by the federal government.

But the U.S. Supreme Court held that it was a violation of the Sherman Act for dentists in North Carolina to use their dental board to exclude non-dentist teeth-whiteners from the market. In a 6-3 decision written by Justice Kennedy, the Supreme Court held that because dentists control their dental board, they violated the antitrust law by excluding competitors for teeth-whitening services.

Three conservatives dissented, led by Justice Alito. He explained that the Sherman Act and the Federal Trade Commission Act do not apply to state agencies. The North Carolina Board of Dental Examiners is a state agency, and thus the federal antitrust laws should not apply against it. "[A]nd that is the end of the matter. . . . The Court has veered off course, and therefore I cannot go along," Justice Alito wrote, and Justices Scalia and Thomas agreed with him.