Markets Wired

The Federal Trade Commission today initiated an action against the state dental board in North Carolina, alleging that it is harming competition by blocking non-dentists from providing teeth-whitening services in the state. The FTC charged that the North Carolina Board of Dental Examiners (the “Dental Board”) has impermissibly ordered non-dentists to stop providing teeth-whitening services, which has made it harder to obtain these services and more expensive for North Carolina consumers.

According to the FTC’s administrative complaint, teeth-whitening services are much less expensive when performed by non-dentists than when performed by dentists. A non-dentist typically charges between $100 and $150 per whitening session, while a dentist typically charges between $300 and $700, with some dental procedures costing as much as $1,000.

Whitening services provided by non-dentists are often available at salons, retail stores and mall kiosks. Dentists in North Carolina offer whitening services in their offices, and also provide take-home kits.

The Dental Board is a state agency created to regulate the practice of dentistry in North Carolina. It consists of eight members, including six licensed dentists, who collectively control the operation of the Dental Board. Any person who wants to practice dentistry in the state must be licensed by the Dental Board. The Dental Board also may ask a state court to deem a particular conduct an unauthorized practice of dentistry and issue an injunction.

Instead of seeking court orders to block non-dentists from providing teeth-whitening services, which the Dental Board believes constitute unauthorized practice of dentistry under North Carolina law, the Dental Board has unilaterally ordered non-dentists to stop providing whitening services. The Dental Board’s actions, according to the FTC, are improper and harm competition.

“Without active supervision by a disinterested state authority, a regulatory board whose members have a financial interest in the industry it is charged with regulating cannot exclude its competitors from the marketplace,” said Richard Feinstein, Director of the FTC’s Bureau of Competition. “The North Carolina Dental Board does not have authority to decide on its own to limit the whitening services available to North Carolina residents, and its actions have decreased competition and harmed consumers.”

According to the FTC’s complaint, the Dental Board sent 42 letters instructing teeth-whitening providers that they were practicing dentistry illegally and ordering them to stop. In at least six cases, the Dental Board threatened or discouraged non-dentists who were considering opening teeth-whitening businesses. The Dental Board also sent at least 11 letters to third parties – mall owners and property management companies – stating that teeth-whitening services offered in malls are illegal.

The FTC’s complaint alleges that as a result of the Dental Board’s actions, the availability of teeth-whitening service in North Carolina has been significantly diminished. The complaint charges that the Dental Board’s conduct is an anticompetitive conspiracy among the dentist members of the Dental Board in violation of federal law. The FTC seeks to stop the Dental Board’s illegal conduct so that North Carolina consumers can benefit from competition between dentists and non-dentists for teeth-whitening services.

The Commission vote approving the administrative complaint was 4-0-1, with Commissioner Julie Brill recused. It was issued today, and a public version will be available shortly on the FTC’s website and as a link to this press release.

NOTE: The Commission issues or files a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The complaint is not a finding or ruling that the named parties have violated the law.
The administrative complaint marks the beginning of a proceeding in which the allegations will be ruled upon after a formal hearing by an administrative law judge.

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to antitrust@ftc.gov, or write to the Office of Policy and Coordination, Room 394, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Ave, N.W., Washington, DC 20580. To learn more about the Bureau of Competition, read “Competition Counts” at http://www.ftc.gov/competitioncounts.

(FTC File No. 081-0137)
(NC Dental.final)