To settle FTC charges that its actions violated the antitrust laws, the Board of Dental Examiners of Alabama has agreed to stop requiring on-site supervision by licensed dentists of alignment scans of prospective patients’ mouths seeking to address misaligned teeth or gaps between teeth. These scans are routinely administered by dental hygienists and other non-dentist practitioners; the Dental Board’s decision limited consumer choice and excluded new providers in the state of Alabama.
According to the complaint, the Board is a state agency comprised of six licensed dentists and one licensed dental hygienist, who administer dental licensing in Alabama. In 2017 – after startups such as SmileDirectClub, Candid Co., and SmileLove LLC had begun offering lower cost clear aligner therapy through teledentistry platforms – the board amended a rule to prohibit dental hygienists and other non-dentist practitioners from performing scans inside a patient’s mouth without on-site dentist supervision. After the Board sent a letter to SmileDirectClub demanding it stop using non-dentist personnel to take scans of patients’ mouths, SmileDirectClub abandoned plans to open additional locations in Alabama.
The complaint alleges that the Board unreasonably excluded from competition providers of teledentistry-based teeth alignment products and services, and that it did this without adequate active supervision from neutral state officials, in violation of the FTC Act. Under the terms of the proposed settlement, the Board must no longer impede clear aligner platforms, or dental professionals affiliated with them, from providing clear aligner therapy through remote treatment.
Braces and removable, fabricated molds called clear aligners are used to straighten teeth, and in recent years, several new firms have launched platforms that provide clear aligners using teledentistry. These firms typically offer clear aligner therapy at significantly lower prices than those charged for braces or clear aligners that are supplied by a dentist or orthodontist in a traditional office setting, the complaint states. For reasons of price and convenience, many consumers prefer clear aligner therapy supplied through a teledentistry model.
According to the complaint, state regulatory boards comprised of active market participants can violate antitrust law by publicizing and enforcing rules that harm competition in the industry in which board members participate. Because the Board is controlled by active market participants, they must be actively supervised by the state, and they were not, the complaint alleged.
Further details about the proposed consent order – which the Board is required to share with members, employees, certain dentists, and clear aligner platforms – are set forth in the analysis to aid public comment for this matter. The proposed order also requires the Board to notify the FTC about any changes to its rules related to intraoral scanning or clear aligner platforms.
The Commission vote to issue the complaint and accept the proposed consent order for public comment was 5-0. The FTC will publish the consent agreement package in Federal Register shortly. Instructions for filing comments appear in the published notice. Comments must be received 30 days after publication in the Federal Register. Once processed, comments will be posted on Regulations.gov.