SCOTUS issued its opinion in North Carolina State Board of Dental Examiners v. FTC on February 25, 2015. The Court addressed concerns of unlicensed teeth whitening. The opinion may affect actions for the unlicensed practice of law, currently a subject of debate in Georgia. This post is introductory. Another will follow.

Of initial interest are the line-ups. In this corner and writing for the majority is Justice Kennedy, joined by Justices Roberts, Ginsburg, Breyer, Sotomayor and Kagan. In the other is Justice Alito, filing a dissent joined by Justices Scalia and Thomas.

First the Joe Friday part of the opinion.

The North Carolina Dental Practice Act prescribes as the primary duty of the North Carolina State Board of Dental Examiners the implementation and enforcement of dentist licensing.  The Board may file suit against nonlicensees to enjoin the unlawful practice of dentistry. Six of the Board’s eight members must be active, licensed dentists elected by other licensed North Carolina dentists in elections conducted by the Board. The seventh member must be a licensed practicing dental hygienist elected by other licensed hygienists. The final member is a “consumer” appointed by the Governor. All members serve three-year terms and are limited to no more than two consecutive terms. The Act makes no provision for the removal of an elected member of the Board by a public official.

Board members swear an oath of office, and the Board must comply with North Carolina’s Administrative Procedure Act and open-meetings law. The Board’s rules and regulations must be consistent with the Act and approved by the North Carolina Rules Review Commission, whose members are appointed by the state legislature.

Dentists in North Carolina, including eight of the Board’s ten members, made good money whitening teeth starting in the 1990s. Nondentists arrived by 2003 charging lower fees. Dentists complained to the Board. Most expressed concern about the nondentists’ lower prices instead of possible harm to consumers. The Board opened an investigation, although the Act does not, by its terms, specify that teeth whitening is “the practice of dentistry.”  A dentist member led the inquiry, in which neither the Board’s hygienist member nor its consumer member participated. No formal rule or regulation reviewable by the independent Rules Review Commission resulted, but the Board issued cease-and-desist letters directing the recipients to cease “all activity constituting the practice of dentistry,” warning that the unlicensed practice of dentistry is a crime, and strongly implying or expressly stating that teeth whitening constitutes “the practice of dentistry.” The Board also persuaded the North Carolina Board of Cosmetic Art Examiners to warn cosmetologists against providing teeth whitening services and sent letters to mall operators stating that kiosk teeth whiteners were violating the Dental Practice Act and advising that the malls consider expelling violators. Nondentists ceased offering teeth whitening services in North Carolina as a result of these actions.

The FTC charged the Board with anticompetitive and unfair method of competition under the Federal Trade Commission Act. The Administrative Law Judge determined that the Board had unreasonably restrained trade in violation of antitrust law. The FTC and ultimately the Fourth Circuit affirmed.

Next, the Court’s analysis and ruling.