Can someone who isn't a dentist provide teeth-whitening service? The North Carolina Board of Dental Examiners says no. But a federal administrative law judge says yes.
In an initial decision, Chief Administrative Law Judge D. Michael Chappell has concluded that the North Carolina Board of Dental Examiners violated the law by trying to block non-dentists in the state from providing teeth-whitening goods or services.
Ruling that the dental board does not have the authority to order non-dentists to discontinue providing teeth whitening goods or services, Chappell issued an order barring the board from engaging in the same anticompetitive conduct in the future.
The order also requires the board to send follow-up letters to non-dentists whom it had previously warned might be violating state law by providing teeth-whitening services.
The dental board is a state agency created to regulate the practice of dentistry in North Carolina. It consists of eight members, six of them dentists. Any person who wants to practice dentistry in the state must be licensed by the board.
Mall kiosks
In North Carolina, teeth whitening services provided by non-dentists often are available at salons, retail stores, and mall kiosks. The state’s dentists offer whitening services in their offices, and also provide take-home kits.
According to a complaint filed in June 2010, the dental board sent 42 letters instructing non-dentist teeth-whitening providers that they were practicing dentistry illegally, and ordering them to stop. The complaint also alleged that the board sent at least 11 letters to third-parties – mall owners and property management companies – stating that teeth-whitening services offered in malls are illegal.
Chappell wrote that non-dentists compete with dentists to provide teeth-whitening services in North Carolina, and that the Dental board’s “concerted action to exclude non-dentist-provided teeth whitening services from the market constitutes an agreement to exclude rivals, which by its nature has the tendency to harm competition.”
Chappell found that the board’s action had no valid pro-competitive justification, and “constitutes an unreasonable restraint of trade and an unfair method of competition, in violation of Section 5 of the FTC Act.”
If the dental board chooses, it can appeal Chappell's decision to the full Federal Trade Commission (FTC).
