Court rules against dental regulators on teeth whitening
Posted May 31, 2013
Updated June 3, 2013
Raleigh, N.C. — North Carolina's Dental Board cannot ban non-dentists from offering teeth-whitening services, the U.S. Fourth Circuit Court of Appeals ruled Friday.
In 2010, the Federal Trade Commission told the North Carolina Dental Board it could not regulate teeth-whitening businesses conducted by non-dentists. The board had attempted to shut down businesses like day spas and tanning booths that also offer whitening services.
In early 2011, the board sued the commission in 2011, saying the FTC had over-stepped its authority in preventing the board from enforcing North Carolina dental regulations. Later in 2011, a federal judge sided with the FTC, saying the Dental Board had over-stepped its authority.
In its opinion today, the appellate court said the state could pass and enforce a law prohibiting non-dentists from whitening teeth. But, the judges said, the dental board is made up of dentists appointed by other dentists.
Here, the fact that the Board is comprised of private dentists elected by other private dentists, along with North Carolina’s lack of active supervision of the Board’s activities, leaves us with little confidence that the state itself, rather than a private consortium of dentists, chose to regulate dental health in this manner at the expense of robust competition for teeth whitening services," Judge Barbara Milano Keenan wrote in a concurring opinion. "Accordingly, the Board’s actions are those of a private actor and are not immune from the antitrust laws under the state action doctrine."