Justices: Dentists can't decide who whitens your teeth

Richard Wolf | USA TODAY

WASHINGTON — Dentists can make your teeth sparkling white, but they can't decide who else can, the Supreme Court said Wednesday.

The justices ruled 6-3 that a North Carolina state board dominated by dentists acted illegally by excluding non-dentists from the business of teeth whitening — a business that had been offered at reduced rates in shopping malls, spas and stores.

Justice Anthony Kennedy, writing for the majority, said state boards composed mostly of active market participants run the risk of self-dealing.

"This conclusion does not question the good faith of state officers but rather is an assessment of the structural risk of market participants' confusing their own interests with the state's policy goals," he said.

"If a state wants to rely on active market participants as regulators, it must provide active supervision," Kennedy wrote. In this case, he said, the dental board did not deserve the same immunity from federal antitrust laws granted to states.

Justice Samuel Alito, joined by fellow conservatives Antonin Scalia and Clarence Thomas, dissented. They held that the dental board was properly administering state licensing requirements.

"As a result of today's decision, states may find it necessary to change the composition of medical, dental and other boards, but it is not clear what sort of changes are needed to satisfy the test that the court now adopts," Alito wrote.

The case was brought by the Federal Trade Commission, which charged the state Board of Dental Examiners with antitrust activities by engaging in unfair competition for its members' personal benefit. The board had issued "cease and desist" letters to non-dentists who dared to whiten teeth.

A federal appeals court agreed that the board had acted as a group of private practitioners, not as a state agency.

During oral arguments in October, that appeared to be a problem the majority of justices would not brush aside: Why should dentists who profit from teeth whitening get to push non-dentists who offer less expensive services out of business?

"Is this party, this board of all dentists, is there a danger that it's acting to further its own interests rather than the governmental interests of the state?"Justice Elena Kagan asked. "And that seems almost self-­evidently to be true."

Some justices warned that a ruling against the dental board should not sweep in all professional boards, lest experts refuse to serve. The dental board's lawyer, Hashim Mooppan, argued that with too much supervision, "no one will serve on these boards." As a result, states would lose the expertise they seek and value.

A number of states employ hybrid agencies composed mostly of experts in their fields — including many who stand to profit from agency decisions. Several justices agreed in October that there is a role for such experts, so long as they don't wield exclusive power.

Kennedy noted that sentiment in his opinion but said most professionals adhere to the Hippocratic Oath and ethical standards.

"There is ... a long tradition of citizens esteemed by their professional colleagues devoting time, energy, and talent to enhancing the dignity of their calling," he said.