<em>North Carolina Dental Board v. FTC</em>: A Bright Line On Whiter Teeth?

Abstract

On October 14, 2014, the United States Supreme Court heard oral arguments in North Carolina Board of Dental Examiners vs. Federal Trade Commission. The case does not involve the Affordable Care Act, but it goes to the heart of the professional self-regulatory paradigm that has governed the U.S. health care system for more than a century. The specific legal question under review is the standard for determining when a state professional licensing board’s activities are subject to scrutiny for anticompetitive effect under the federal antitrust laws. Antitrust law applies to private anticompetitive conduct. Congress did not intend to interfere with state regulation that limits or even eliminates competitions. As long as states do so using public agencies and officials, they are on safe ground. If a state empowers private parties to administer such regulation, however, it not only must “clearly articulate” its intent to diminish competition, but also must “actively supervise” the conduct of the private parties. In previous cases, the Supreme Court developed and elaborated this two-part test, which is called the “state action doctrine.”