This case, which involves regulating tooth whitening kiosks in malls, previously was decided by a federal appeals court. The lower court ruled in favor of the FTC’s claim that state licensure boards should be subject to federal antitrust laws. The decision of the appeals court could effectively limit the ability of these boards to regulate their health care professions and shield patients from unlawful practices, according to the AMA’s Litigation Center. The Litigation Center, along with state medical societies, filed amicus briefs on behalf of the physicians and their patients, guided by the belief that state medical boards should have the authority to regulate the practice of medicine.
All 50 states have decided that the practice of medicine should be regulated by licensing boards that include practicing physicians. The FTC holds that decisions of a state licensing board—established, constituted and functioning in accordance with state law—are subject to being overturned under the federal antitrust laws if members of that state agency include practicing professionals not subject to active supervision by the state and/or if the state has not clearly articulated its professional licensing regime is intended to displace competition.