1. Aftershocks: What’s next regarding the FTC?
Brian Blankenship
Deputy General Counsel
North Carolina Medical Board.

2. Any opinions are my own and not the North Carolina Medical Board.
Disclaimer
Any opinions are my own and not the North Carolina Medical Board.

3. Key Takeaway
AVOID OVERREACTION

4. NC Dental Board Case: Background
Starting in 2006, the NC Dental Board issued 47 cease and desist orders to non-dentists about teeth whitening, explaining criminal penalties for “practice of dentistry”.
In 2010, the FTC charged the Dental Board with violating the FTC Act and the Sherman Act
The FTC prevailed before an administrative law judge, the full commission, the 4th Circuit Court of Appeals and finally the U.S. Supreme Court
Since we’re talking about what’s next, presume that everyone is somewhat familiar with how we got here, specifically, the United State Supreme Court’s decision in FTC v. NC Dental Board.
2010: FTC charged Board with violating the FTC Act and the Sherman Act
FTC Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices.”
Sherman Act prohibits “every [unreasonable] contract, combination or conspiracy in restraint of trade”, and any “monopolization, attempted monopolization, or conspiracy or combination to monopolize.”
Importantly, the ALJ found no health or safety issues present in the case.

5. NC Dental Board: Supreme Court Ruling
“State agencies are not simply by their governmental character sovereign actors for purposes of state-action immunity. Immunity for state agencies Requires more than a mere façade of state involvement.” States must “accept political accountability for anticompetitive conduct they permit and control.”
State Action Doctrine:
Parker v. Brown (1943)
Supreme Court carved out an exception from federal antitrust laws “to confer immunity on anticompetitive conduct by the States when acting in their sovereign capacity.”

6. NC Dental Board: Supreme Court Ruling
Where regulatory power is delegated to active market participants, immunity requires:
Clear articulation
Active state supervision

7. NC Dental Board: Key Factors
Dental Board controlled by dentists elected by “market participants”.
Did not have explicit authority to issue “cease and desist letters.”
Did not engage in rule-making
Did not employ judicial process
Court troubled by possibility that Dental Board could be motivated by economic self-interest.

8. Open Issues To which decisions does NC Dental apply?
Licensing/Applications?
Discipline?
Unauthorized practice?
What constitutes “control” by market participants?

9. Open Issues What constitutes active supervision?
“have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy.”
“supervisor must have the power to veto or modify particular decisions to ensure that they accord with state policy.”
Need not entail day-to-day involvement in an agency’s operations or micromanage every decision.

10. Active Supervision Must be: Substantive, not merely procedural
Exercised, not merely potential
Must have veto
Not an active market participant

11. Other Considerations
The “focus of U.S. competition law” is “on protection of competition rather than competitors.” Spectrum Sports, Inc. v. McQuillan 506 U.S. 447 (1993)
“Suppose a market with several hundred licensed electricians. If a regulatory board suspends the license of one electrician for substandard work, such action likely does not unreasonably harm competition.” FTC Guidance, citing Oksanen v. Page Mem’l Hosp., 945 F.2d 696 (4th Cir. 1991)

12. North Carolina Proposed Bill

13. North Carolina Proposed Bill

14. North Carolina Proposed Bill

15. North Carolina Proposed Bill

16. Going Forward
Do things for the right reason. Stay true to your core functions.
Avoid non-relevant labels, such as age, bd. certification, integrative medicine, telemedicine, teleradiologist, etc.
Don’t get baited into taking marginal, unlicensed practice of medicine cases or getting enmeshed in politically charged scope of practice disputes unless there is a clearly demonstrable public heath reason to do so and significant public harm would result in the absence of intervention.

17. Key Takeaway
AVOID OVERREACTION