In our Fall 2010 issue, we
reported that the Federal Trade
Commission (“FTC”) had filed an
administrative complaint against
the North Carolina State Board
of Dental Examiners (the “Board)
for allegedly “colluding” to prevent
non-dentists from providing
teeth-whitening services. The FTC’s
complaint was based primarily on
letters the Board had sent to nondentist
teeth-whitening providers
stating that they were practicing
dentistry illegally and ordering
them to stop.

Since that time, the Board has
gone on the offensive. On February
1, 2011, in the U.S. District
Court for the Eastern District of
North Carolina, the Board filed
a Complaint for Declaratory
Judgment and Preliminary and
Permanent Injunction. The Board
is seeking to obtain a “determination
of the State of North
Carolina’s right to protect its citizens
against the dangerous and
illegal unauthorized practice of
dentistry in North Carolina and
to statutorily regulate professions
within its borders through its state
agencies governed by a majority
of licensees.” Additionally, the
Board alleges that its actions are
immune from federal antitrust
enforcement and that the FTC
lacks jurisdiction over the Board.
Accordingly, the Board argues that
the FTC’s administrative proceeding
“directly encroaches upon the
State’s sovereignty assured under
the Tenth Amendment to the
United States Constitution” and
violates other constitutional and
statutory provisions.

The FTC filed a motion to
dismiss and, on May 3, 2011, the
Court granted it for lack of jurisdiction.
The Court noted that
the appropriate forum for the
Board’s arguments is the FTC’s
administrative proceeding (which
is pending), followed by a potential
appeal to the U.S. Court of
Appeals for the Fourth Circuit.

As professional societies will
follow this dispute with interest,
we will report on any notable
developments.