Distribution, Competition, and Antitrust / Intellectual Property (IP) Law

U.S. Supreme Court to Decide When Professional Licensing Bodies Have Antitrust Immunity

teeth whitening

teeth whitening (Photo credit: torbakhopper)

The state action immunity doctrine shields private actors from antitrust liability if their activities are actively supervised by a state.

But arms of the state itself generally don’t have to satisfy the actively-supervised requirement to enjoy the immunity.

What about a state agency that consists of professionals who are regulating their own profession?  Is such an agency an arm of the state, or is it more like a private actor that must meet the actively-supervised requirement to enjoy antitrust immunity?

That’s the issue the Supreme Court will decide in North Carolina State Board of Dental Examiners v. Federal Trade Commission, Case No. 13-534.   The Board had engaged in efforts to block non-dentists from offering tooth-whitening services.  The Fourth Circuit agreed with the FTC that a North Carolina agency made up almost entirely of practicing dentists must satisfy the actively-supervised requirement for the immunity to attach.  See 717 F.3d 359 (4th Cir. 2013).   “[W]hen a state agency is operated by market participants who are elected by other market participants, it is a ‘private’ actor.”  Id. at 370.

Although the issue of the regulation of dentists may be a narrow one, the case has broader implications for the regulation by states of many professions and industries.  

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