How a Tooth-Whitening Lawsuit Landed before the Supreme Court

—and why their decision will have far-reaching ramifications for state licensing boards.
Last year we told you about the Federal Trade Commission’s investigation of the North Carolina dental board. The FTC decided the board had attempted to monopolize the teeth whitening business, and found it had illegally thwarted competition through cease-and-desist letters. The board—composed mainly of private dentists—had sent the letters to businesses that were offering teeth whitening services, claiming that they were practicing dentistry without a license. Spas and salons were offering tooth whitening services from $75 to $125, as compared to between $400 and $1300 at a dentist’s office.
The US Court of Appeals agreed with the FTC, and now the case is in front of the Supreme Court, where oral arguments were heard last month.
The justices made some excellent points during their questioning. Justice Breyer said, “The object of antitrust laws is to prevent private individuals who compete with each other in business from getting together and making agreements…That kind of interest seems present here.” And Justice Ginsberg thought the cease-and-desist letters were out of bounds: “Why should there be an antitrust exemption for conduct that is not authorized by state law?” she asked. “The objection here was that this board was issuing a whole bunch of cease-and-desist orders. They had no authority to do that. No authority at all.”
The Supreme Court decision, once it is issued, will have implications that run far beyond the North Carolina dental board. As one FTC commissioner stated, “This is a case about whether professional associations—dentists, doctors, lawyers, title insurers, movers—can hide behind professional boards to restrict competition.”
We have long criticized state allopathic medical boards’ targeting of integrative and alternative doctors, usually done to protect their monopoly on the practice of medicine. Under the guise of “protecting the public,” medical licensure and state medical boards have been described as a self-regulating cartel; Milton Friedman, among other economists, argued that state licensure restricts the supply of physicians and stifles competition. We detailed many such abuses in our article last year.
State dietetic boards have conducted widespread surveillance (including undercover sting operations) and started aggressive investigations in an attempt to consolidate their monopoly over nutrition counseling services, reserving them for Registered Dietitians alone and excluding other credentialed nutrition specialists. The state dietetics organizations have been working to do the same through legislation—trying to create state dietetic boards that exclude nutritionists.
We don’t tolerate monopolies in other businesses—why is it OK when it comes to nutrition?