Dear NCISS members,
In our ongoing series of notifications related to the FTC's investigative activities of state licensing boards for anti-competitive activity, we wanted to inform NCISS members that the US Supreme Court (USSC) recently announced that this Fall's session will contain a decision which could dramatically shape the landscape regarding state licensing board authority.
On October 14, 2014, the U.S. Supreme Court (USSC) is scheduled to hear oral arguments in North Carolina Board of Dental Examiners v. Federal Trade Commission 717 F.3d 359 (4th Cir. 2013), a decision from the 4th Circuit finding that the North Carolina Board of Dental Examiners (the Board) engaged in an unfair restraint of trade by attempting to restrict the practice of teeth whitening to only licensed dentists. The eight-member Board is comprised of six licensed dentists, one licensed dental hygienist, and one consumer member.
After receiving complaints from dentists, the Board opened an investigation into teeth-whitening services performed by non-dentists. After a short investigation, the Board indicated to practicing dentists that it was attempting to shut down these non-dentist providers, then issued at least 47 cease-and-desist letters to 29 non-dentist teeth-whitening providers. Several letters indicated that the sale or use of teeth-whitening products by a non-dentist is a misdemeanor.
These letters effectively caused non-dentists to stop providing teeth-whitening services in North Carolina and also caused manufacturers and distributors of teeth-whitening products used by these non-dentist providers to exit or hold off entering North Carolina. The Board also sent letters to mall operators in an effort to stop malls from leasing kiosk space to non-dentist teeth-whitening providers, and contacted the North Carolina Board of Cosmetic Art Examiners to request that the Cosmetic Board inform its members and licensees to refrain from providing teeth-whitening services.
After an initial hearing and a subsequent review on appeal, in 2011, the FTC issued a final order that the Board had engaged in an unfair restraint of trade. In May 2013, the 4th Circuit upheld the FTC's decision. In March of 2014, the USSC accepted the case for review and decision.
This decision is important because it will likely define the test to which state licensing boards are held when regulating industries they not only oversee, but often participate in, as well.
NCISS urges the Supreme Court to require lower courts to inquire as to whether the regulatory means employed by the licensing board are congruent with a legitimate governmental end. This is the most sensible way to mitigate situations where the fox is literally guarding the henhouse.
We will keep our members apprised of the decision, which is expected by the end of the 2014 calendar year. It could have far-reaching consequences for state-regulated professions like private investigators.
Respectfully,
Robert Heales, President
National Council of Investigative and Security Services
Robert Heales President
National Council of Investigative and Security Services
7501 Sparrows Point Blvd. Baltimore
MD 21219 800-445-8408 Fax: 410-388-9746
E-Mail: nciss@comcast.net
www.nciss.org
