Just Because You Sit On A State Board Doesn’t Mean You Enjoy Immunity From Antitrust Laws.

North Carolina’s Dental Practice Act provides that the state’s Board of Dental Examiners is “the agency of the State for the regulation of the practice of dentistry,” and it principal duty is to oversee the licensing of dentists. The Board issued cease and desist letters to nondentists who were cleaning teeth at a lower cost than dentists charge. The Federal Trade Commission [FTC] filed a complaint against the Board, alleging a concerted action to exclude nondentists from the teeth whitening market. An administrative law judge denied the Board’s claim of state-action immunity, and the FTC sustained that ruling, reasoning that if the Board had acted pursuant to a clearly articulated state policy to displace competition, the Board must be actively supervised by the State to claim immunity, which was not so in this case. The United States Supreme Court held that because a controlling number of the Board’s decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action immunity only if it was subjected to active supervision by the State and here that requirement was not met. (N.C. State Bd. of Dental Exam’rs v. FTC (U.S. Sup. Ct.; February 25, 2015) ___U.S.___ [135 S.Ct. 1101, 191 L.Ed.2d 35].)