Teeth Whitening at the Supreme Court: The Antitrust Limits of Professional Sovereignty

The Supreme Court's 6-3 opinion in North Carolina State Board of Dental Examiners vs. FTC is out and, as expected, it leaves important information about how state medical and dental licensing boards should be populated and operated to be determined in the future but it does, in an unexpected way, paint with a broad brush in delineating antitrust's limits on the states' powers to regulate, de-regulate, and out-source regulation to a "non-sovereign actor."

North Carolina State Dental Board, as configured,with its majority dominant practicing dentists who directly compete with those non-dentists the Board seeks to reign in on tooth whitening practices despite the lack of any statutory authorization to define tooth whitening as dentistry has ended up as a poster child for the clear articulation and active supervision standards required to determine whether an anticompetitive policy is indeed the policy of a given state and entitled to immunity from Sherman.  A nonsovereign entity controlled by active market participants must meet both the of Midcal's prongs to rest easy in immunity from the Sherman Act's reach.

North Carolina's Dental Board functioned more as a trade association with super powers granted to it by the state — apparently with an open-ended portfolio of responsibilities relating to dentistry in the state. Like it or not, the dissent argues the delegation was valid and the Sherman Act does not sit to second guess the wisdom or even fairness of the delegation.  

Whatever you think of the dissent, Justice Alito is spot on when he notes that the majority opinion is potentially quite disruptive for state medical licensing boards, entities that the dissent notes have long been under full sway of the regulated health professions themselves.  Of course, the story about how that came to be in the United States is also a story about the professionalization of medicine.  As Paul Starr has noted, "Professional medicine drew its authority in part from the changing beliefs people held about their own abilities and understanding." Professional licensing boards left in the unfettered control of providers may tap into the same transformation.

The rise to respectability as a separately licensed medical specialty of American dentistry is an amazing story.  Self-licensing, ascendent since the late 19th century, was the outcome of political compromise and not solely the seemingly inevitable result  of deference to professional authority traced in today's opinions.

It is true, however, that we have almost no tradition of genuine state regulation of doctors, dentists, and optometrists other than the North Carolina Dental Board model or something like it. If we aim to take it over it will not be a taking it back, but a taking it on — an invention out of whole cloth.

 

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