E-News June 8, 2015

Licensing Boards To Be Reviewed

According to a report given legislators yesterday during Interim Committee meetings at the Capitol, all state licensing boards, including the Board of Dentistry, must be reviewed to determine the extent of their taking disciplinary and legal actions without “active supervision” by an authorized state legal or legislative entity.

The Joint Committee on Government organization heard reports from staff attorneys regarding the U. S. Supreme Court ruling in favor of the Federal Trade Commission (FTC) which charged the North Carolina Board of Dentistry with violation of antitrust laws after it issued cease and desist orders to 47 non-dentists who were applying whitening solutions to persons’ teeth. The Board said the service was the practice of dentistry, however, neither the state dental law nor regulation cited teeth whitening as the practice of dentistry.

In a statement obtained by WVDA, the FTC said, “The Supreme Court affirmed the Federal Trade Commission’s position in recognizing that a state may not give private market participants unsupervised authority to suppress competition even if they act through a formerly designated state agency. In this case, the North Carolina dental
board’s members, primarily dentists, were drawn from the very occupation they regulate and barred non-dentists from offering competing teeth whitening services to consumers. The Court’s decision makes clear that state agencies [licensing boards] constituted in this manner are subject to the federal antitrust laws unless the state actively supervises their decisions.”

The two attorneys told the Joint Committee on Government Organization that all chapter 30 [licensing] boards would have to be examined as to how they operate in light of the Supreme Court’s ruling, which applies to all states’ licensing boards. They said the federal antitrust law intends to promote and allow free market place.
They also said the majority of members of the North Carolina Board of Dentistry were dentists, which is the case with the composition of all WV licensing boards.

The FTC alleged the NC Board of Dentistry’s concerted action to exclude non-dentists from the market for teeth whitening services constituted an anti-competitive and unfair method of competition under the FTC Act. The NC Board claimed it was immune from the FTC action. However, the Supreme Court said the Board must be actively supervised by that state to claim immunity, which it was not.

WVDA has learned the WV Attorney General’s Office directed all boards to submit any disciplinary or legal actions to that Office prior to taking the action, in view of the U. S. Supreme Court ruling.