Professional Regulation, Public Safety Threatened by FTC Order

What does teeth whitening have to do with the self regulation of medicine? As is often the case, actions taken to address a narrow issue can have major consequences. Such is the case with the Federal Trade Commission’s interest in teeth whitening services in North Carolina.

Teeth whitening is the practice of dentistry under the NC Dental Practice Act (DPA). The NC Dental Board issued cease and desist letters to unlicensed teeth whitening vendors, causing some of them to stop offering the service.

Last year, the Federal Trade Commission (FTC) ordered the NC State Board of Dental Examiners to back off these efforts.

The FTC order, if not reversed, would disrupt the regulation of health professionals nationwide, and compromise patient safety. This week, the AMA Litigation Center, North Carolina Medical Society, South Carolina Medical Association, Medical Society of Virginia, and the West Virginia State Medical Association filed an amicus curiae brief with the Fourth Circuit Court of Appeals seeking reversal of the FTC order. Watch upcoming issues of the Bulletin for more information as the issue is considered by the Fourth Circuit Court of Appeals.

In its order, the FTC determined that the practicing dentists serving on the NC Dental Board are not subject to sufficient State supervision to have an exemption from federal antitrust law, and therefore, the dentists’ action amounted to a conspiracy to exclude non-dentists from the teeth whitening market.

Perhaps what is most alarming about the FTC order is that it determined it was immaterial whether teeth whitening constituted the practice of dentistry, whether there is a valid public health or safety interest in the NC Dental Board’s prohibiting non-dentists from whitening teeth, or whether the Dental Board’s actions were taken to further the goals of state law (specifically the DPA).

The composition of the Dental Board is not dissimilar to that of many other professional licensing boards in the United States. There are, however, state-to-state differences in the means of selecting board members and the relationship of licensing boards to other entities of state government. The brief filed by organized medicine last week is aimed at having the Fourth Circuit reverse the order.

 
 

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