On March 3, 2014, the Supreme Court granted certiorari in North Carolina State Board of Dental Examiners v. FTC, a U.S. Court of Appeals for the Fourth Circuit decision upholding a Federal Trade Commission (FTC) finding that the North Carolina State Board of Dental Examiners did not qualify for antitrust immunity after excluding non-dentists from providing teeth-whitening services. The Supreme Court will determine whether the board is a “private” actor for purposes of the state action doctrine, a designation that heightens the requirements for receiving antitrust immunity. This will mark the second time in two years that the Supreme Court has considered the parameters of the state action doctrine, following nearly two decades of silence on the subject.
If the Supreme Court elects to impose “active supervision” on private regulatory bodies, the decision could have broad implications on the structure and authority of state professional review boards, placing increased costs on states and reducing the incentive of professionals to participate on these boards. At the same time, however, these concerns must be weighed against the risk of allowing established market participants to use state action immunity to harm competition or prevent new competitors from entering the market.
