NORTH CAROLINA BOARD OF DENTAL EXAMINERS v. FEDERAL TRADE COMMISSION
The North Carolina State Board of Dental Examiners (Board) is a statutorily created agency that regulates the practice of dentistry. It is composed of six dentists⎯who are elected by other dentists in North Carolina⎯one dental hygienist, and one consumer member. The Board may bring an action in the North Carolina Superior Court to enjoin the conduct of any individual the Board suspects of engaging in the unlawful practice of dentistry.
In 2003, non-dentists began offering teeth-whitening services to consumers in mall kiosks and salons across the state. After dentists complained, the Board sent 47 cease and desist letters to 29 non-dentist teeth-whiteners. The non-dentists ceased offering the service, and manufacturers and distributors of over-the-counter teeth-whitening products exited the North Carolina market.
The Federal Trade Commission (FTC) subsequently charged the Board with violating the Federal Trade Act by excluding the non-dentists. An Administrative Law Judge found that the Board had engaged in unfair competition and enjoined the Board from issuing any more cease and desist letters; the FTC upheld that ruling on appeal. The Board petitioned the U.S. Court of Appeals for the Fourth Circuit to review the FTC decision and argued that, as a state agency, it was exempt from federal antitrust laws. The Court of Appeals declined to review the case and held that, when a state agency is operated by market participants who are elected by other market participants, the agency is a private actor and subject to federal antitrust laws.
Is an official state regulatory board whose members are mostly market participants that are elected by other market participants a “private actor” for purposes of federal antitrust laws?