No Active State Supervision, No Antitrust Immunity For North Carolina State Dental Board

On February 25, 2015, in a 6-3 decision authored by Justice Kennedy, the Supreme Court upheld the Federal Trade Commission's (FTC) decision finding that the North Carolina Board of Dental Examiners (Board), although a state agency, was not exempt from federal antitrust laws when it sent 47 official cease-and-desist letters to non-dentist teeth whitening service providers. North Carolina State Board of Dental Examiners vs. FTC, No. 13-354, slip op. (U.S. Feb. 25, 2015). In doing so, the Court made clear that the antitrust laws would apply to — and the state action exemption would not protect — activities of state agencies or boards made up of market participants, absent active state supervision of the Board's challenged conduct. The Supreme Court affirmed the United States Court of Appeals for the Fourth Circuit's opinion upholding the FTC's ruling that state-action immunity was inapplicable.