Court rules against dental regulators on teeth whitening

In 2010, the Federal Trade Commission told the North Carolina Dental Board it could not regulate teeth-whitening businesses conducted by non-dentists. The board had attempted to shut down businesses like day spas and tanning booths that also offer whitening services.

In its opinion today, the appellate court said the state could pass and enforce a law prohibiting non-dentists from whitening teeth. But, the judges said, the dental board is made up of dentists appointed by other dentists. 

Here, the fact that the Board is comprised of private dentists elected by other private dentists, along with North Carolina’s lack of active supervision of the Board’s activities, leaves us with little confidence that the state itself, rather than a private consortium of dentists, chose to regulate dental health in this manner at the expense of robust competition for teeth whitening services," Judge Barbara Milano Keenan wrote in a concurring opinion. "Accordingly, the Board’s actions are those of a private actor and are not immune from the antitrust laws under the state action doctrine."