State governments are often immune from antitrust liability, but
a recent U.S. Supreme case demonstrates that is not always the
case.
The federal government recently brought an antitrust suit
against the North Carolina agency that regulates dentists. The FTC
claimed the agency unfairly attempted to keep non-dentists from
performing cosmetic teeth-whitening procedures, even though
teeth-whitening does not constitute the practice of dentistry or
endanger the public.
In North Carolina State Board of Dental Examiners v. Federal
Trade Commission, the Supreme Court held that state regulatory
agencies run by active market participants may be liable for
antitrust violations unless the "the challenged restraint [is]
clearly articulated and affirmatively expressed as state
policy" and "the policy [is] actively supervised by the
State." The Court held that the North Carolina agency was not
actively supervised by the state when it sought to close down
cosmetic teeth-whitening
