On May 31, the Federal Trade Commission (FTC) recorded yet
another victory in its continuing efforts to limit the scope and
application of antitrust immunity under the state action
doctrine. The Fourth Circuit ruled that the North Carolina
State Board of Dental Examiners’ efforts to block
non-dentists from providing teeth-whitening services was not
entitled to antitrust immunity because the Board’s activities
were not actively supervised by the state. North Carolina
State Board of Dental Examiners v. Federal Trade Commission,
Case No. 12-1172 (4th Cir. May 31, 2013).
The case focused on the activities of the North Carolina state
agency, which is composed of several practicing dentists, a dental
hygienist and a consumer representative. The Board licenses
dentists in the state and is otherwise empowered to take
disciplinary measures against licensees. Beginning in
approximately 2003, in response to complaints from dentists
practicing in the state, the Board opened
