FTC Provides Guidance Regarding Antitrust Compliance For State Regulatory Boards

In North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), the Supreme Court held that the North Carolina Board of Dental Examiners ("Board"), a state agency, was not exempt from federal antitrust laws when it prohibited non-dentists from providing teeth whitening services in competition with the state's licensed dentists. The Court, thus, concluded that the antitrust laws apply to state agencies and regulatory boards comprised of market participants if the Board's challenged conduct is not actively supervised by the state (see our prior alert on the decision).

In the wake of that decision, state officials have sought advice from the FTC regarding antitrust compliance for state boards responsible for regulating occupations. In response to such requests, on October 14, 2015, the FTC Staff ("Staff") issued guidance addressing the parameters of the "active supervision" requirement under the state action doctrine and its proper application,