Supreme Court hears case over teeth whitening, professional board’s power

Photo by dbking via Flickr

Photo by dbking via Flickr

WASHINGTON — A long-running fight between the North Carolina State Board of Dental Examiners and a group of non-dentists who provide teeth-whitening services reached the nation’s high court today.

During an intense hour of oral arguments, the nine justices of the U.S. Supreme Court delved into whether the state board overstepped federal anti-trust laws in sending out threatening “cease and desist” letters to operators of teeth whitening salons in mall kiosks and salons.

Was the board, which is dominated by practicing dentists, unfairly obstructing competition from lower-priced providers? Or was the body fulfilling its obligation to protect the public health by acting as an arm of the state to shut down illegal practitioners of dentistry?

The court’s decision might have implications for teeth-whitening shops around the country, as well as for the state-established boards that regulate a wide range of professions, Emery Dalesio reported in an Oct. 13 story for The Associated Press

Dental whitening has grown into a multibillion dollar business and the struggle over who should be allowed to bleach teeth has been playing out in many states in recent years.

Many dentists offer teeth-whitening services, which involve applying peroxide-containing preparations to the teeth. The products use chemicals to lighten stains on the surfaces, enamel and dentin layers of the teeth. Staining can be caused by food, drink, tobacco, aging and other factors.

At the same time, do-it-yourself teeth-whitening kits are available in pharmacies. In some states, retail salons and mall kiosks also offer teeth-whitening. Dental organizations back restrictions on non-dentist providers, arguing that the retailers are practicing dentistry without a license and contending they could be putting customers at risk.

In at least 25 states, dental boards have taken steps to shut down these establishments, according to a report by the Institute for Justice a nonprofit libertarian law firm. Since 2005, at least 14 states have changed their laws and regulations and now ban all but licensed dentists, hygienists and assistants from performing teeth-whitening procedures, according to the Institute for Justice.

Meanwhile, the retail providers contend their services are safe and that they have a right to provide them.

In the North Carolina case, the Federal Trade Commission (FTC) has taken the side of the retail teeth-whitening shops, holding that the state dental board “illegally thwarted competition by working to bar non-dentist providers of teeth-whitening goods and services from selling their products to consumers.”

Six practicing dentists serve on the eight-member board that regulates dentistry in the state, observed Deputy Solicitor General L. Malcolm Stewart who argued for the FTC. [Transcript; audio should be available Friday.]

“They have an evident self-interest,” he noted. “That active self interest is reinforced by their method of selection, not by the Governor or the public but by the community of dentists.”

An attorney for the state dental board contended that the board’s actions were not subject to federal antitrust laws because the body was acting as an agency of the state. Members of the profession are best-qualified to serve on the regulatory board, asserted Hashim M. Mooppan.

“The benefits of expertise outweigh the risks of conflicts of interest,” he told the court.

In their questions, justices explored legal precedents that have shaped the way states have delegated regulatory power to professional boards.

In North Carolina’s case last year, the U.S. Court of Appeals for the Fourth Circuit determined that the “cease and desist” letters written by the board of examiners to the retail teeth-whiteners were sent without state oversight.

The appeals court ruled that the board conspired to drive non-dentists out of the teeth-whitening business and that it had unreasonably restrained trade.

“At the end of the day, this case is about a state board run by private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market,” the appeals court concluded.

In today’s hearing, Justice Ruth Bader Ginsberg reminded listeners of the cease and desist letters sent out by the board of dental examiners to non-dentists in North Carolina.

“That conduct was not authorized by state law,” she said. The state dental examiners “had no authority to do that.”

The justices mulled the difficulty of imposing more active oversight of professional boards against the possible consequences of taking power away from the professionals.

“If you require supervision, market participants will not serve on these boards,” Mooppan warned the court.

Justice Stephen G. Breyer acknowledged that he would “not want a group of bureaucrats” deciding who might be allowed to perform brain surgery in a state. Yet he also raised the issue of the possible need for more supervision of professional boards.

“This whole thing turns for me on what the supervision consists of,” he said.


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