May 31, 2013 4th Circuit published opinion

North Carolina Board of Dental Examiners v Federal Trade Commission

Board ordered all nondentist providers of teeth whitening to cease their operations. Commission ruled this violated 15 USC 45 as unfair competition. The panel, with one judge adding a concurrence, affirmed. It held that Board is private actors as the majority of its members are elected form the licensed dentists and the actions to preserve dentist only teeth whitening was done in the interests of the dentists not the public. As North Carolina provides no oversight of the Board’s activities, it is not entitled to immunity as a state actor. The panel also held that Board members could conspire together to violate antitrust laws as they maintained separate practices and had independent interest in maintaining the dentist only teeth whitening model. The cease and desist letters constituted concerted action as the Board voted before sending them and the lengthy campaign is indicative of intent to monopolize. The panel upheld Commission’s determination that the cease and desist campaigned restrained trade as it is common sense that forcing low cost competitors out of a market will harm consumers. The concurrence observed that the decision is narrow and is driven by the fact that the Board is elected from the regulated dentists and not supervised by the state. Different facts could lead to different outcomes in future cases.

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