Part III Administrative Complaint
The FTC issued an administrative complaint on 7/17/2010 alleging that the state dental board in North Carolina 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. In an Initial Decision issued July 14, 2011, the ALJ found 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 had a tendency to harm competition. The ALJ further found that the Dental Board's action had no valid pro-competitive justification and constituted an unreasonable restraint of trade and an unfair method of competition. He accordingly issued an order requiring the Dental Board to stop engaging in the challenged conduct. On July 28, 2011 the parties appealed the ALJ's initial decision. On December 7, 2011, the Commission issued an Opinion concluding that the Dental Board violated of Section 5 of the FTC Act, and agreed with the ALJ that the Dental Board's conduct "constituted concerted action, . . . had a tendency to harm competition and did in fact harm competition," and had no legitimate pro-competitive justification. The Commission concluded that the Dental Board's conduct could be deemed illegal under the "inherently suspect" mode of analysis because the challenged conduct had a clear tendency to suppress competition and lacked any countervailing procompetitive virtue. In addition, the Commission found that there was direct evidence of anticompetitive effects.