FTC Issues Guidance Following NC Dental Board Supreme Court Ruling

Back in February 2015, the United States Supreme Court ruled, by a 6-3 vote, that the North Carolina Board of Dental Examiners (NCBDE) does not have the authority to regulate teeth whitening, and that it unreasonably restrained trade in violation of anti-trust law. The assenting justices sided with the Federal Trade Commission (FTC) that the state’s oversight of dentistry is anti-competitive and poses a conflict of interest to the objective regulation of dentistry.

The FTC issued a guidance document, dated October 2015, which provided recommendations on how state regulatory boards can avoid antitrust litigation. The FTC guidance specifically focused on the following two questions:

• “When does a state regulatory board require active supervision in order to invoke the state action defense?”
• “What factors are relevant to determining whether the active supervision requirement is satisfied?”

The guidance includes an example of “satisfactory active supervision” of a state dental board with respect to teeth whitening, but is written to apply to all state regulating boards.

Since 1992, OSHA Review, Inc. has provided dental professionals with comprehensive programs to support regulatory compliance and infection control. We are a registered dental continuing education provider in the state of California, specializing in Dental Practice Act, infection control, and OSHA training.