Teeth Whitening Permitted by Nondentists in North Carolina

You officially don’t have to be a dentist in North Carolina to perform teeth whitening.

The North Carolina State Board of Dental Examiners lost an appeal to the US Federal Trade Commission that backed the rights of nondentists to perform teeth whitening tasks. The U.S. Court of Appeals made this decision on May 31.

The original complaint stemmed from June 2010, when the board sent numerous letters to try to block the nondentists from performing teeth whitening based on the idea that the nondentists were performing illegal dentistry. The board also did all it could to stop the nondentists from opening teeth whitening businesses.

The FTC claims that the dental board urged malls not to allow these businesses to open.

In November 2010 the dental board then wanted the FTC charges to be dismissed. In February 2011, a lawsuit was filed by the dental board regarding this issue. Later in the month, the FTC rejected the dental board’s motion to dismiss the FTC complaint.

In July 2011, a judge determined that the dental board’s course of action was “unreasonable restraint of trade and an unfair method of competition.” One month later there was an appeal, but the FTC upheld the ruling in December of that year. Another appeal was made and this decision shoots down the latest appeal.

“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 37 than a private consortium of dentists, chose to regulate dental health in this manner at the expense of robust competition for teeth whitening services,” Circuit Judge Barbara Milano Keenan wrote in the denial. “Accordingly, the Board’s actions are those of a private actor and are not immune from the antitrust laws under the state action doctrine.”