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Fourth Circuit & FTC: State Dental Board Subject to Federal Antitrust Laws in Teeth-Whitening Case

The health care industry is familiar with the FTC’s enforcement presence for anti-competitive business practices in health care markets. But in a case involving the market for teeth-whitening services in North Carolina, it seems that state boards might now have to watch their steps too. Attorneys from Mintz Levin’s Antitrust Practice recently authored an alert entitled, Fourth Circuit Holds State Agencies Operated by Market Participants Are Private Actors for State Action Purposes, that discusses the case and why the Fourth Circuit agreed with the FTC’s determination that the North Carolina State Board of Dental Examiners illegally excluded nondentists from the state’s teeth-whitening market.

The Fourth Circuit held that the dental board is subject to federal antitrust law because it was acting as a private party, not a governmental agency, when it issued cease-and-desist letters to teeth-whitening providers who were not dentists. They also agreed that the dental board is operated by market participants who are elected by market participants. State boards and quasi-governmental agencies should be aware that their activities may not be immune from antitrust enforcement actions.

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Theresa C. Carnegie is a Mintz attorney who advises health care clients on a wide array of transactional, regulatory, compliance, fraud and abuse matters, and health law issues. She counsels health plans, pharmacy benefit managers, pharmacies, device manufacturers, and distributors.