On October 14, the U.S. Supreme Court heard arguments about teeth whitening that has sparked debate about the power of licensing boards.
The hearing was on an appeal from the federal antitrust lawsuit brought by the Federal Trade Commission (FTC) against the North Carolina Board of Dental Examiners in 2010, which alleges that the board hurt competing, non-dentist-owned businesses offering teeth-whitening services.
The FTC maintains the board, which is made up primarily of dentists, was motivated by financial self-interest when it tried to prevent non-dentists from performing so-called cosmetic teeth whitening at lower prices. For example, cease and desist orders were sent to owners of shopping mall kiosks, hair salons, day spas, etc. that were offering teeth-whitening products and/or services.
The N.C. Board countered that it is immune from an antitrust suit because it is a government body, even though it is made up of private professionals.
During the hour-long hearing Oct. 21, there were back and forth arguments for and against the N.C. Board’s action. For example, Justice Anthony Kennedy pointed out that if dentists, doctors and other professionals can be sued over decisions about industry regulations, then no one with expertise would agree to serve on a government licensing board. Justice Kennedy told a government lawyer, “That’s going to be the consequence of the rule you advocate.”
Justice Stephen Breyer expressed his opinion that it was important that medical specialists should be the ones deciding regulations on matters such as who is qualified to practice brain surgery. He added, “I don’t want a group of bureaucrats deciding that. I would like brain surgeons to decide that.”
In the FTC’s lawsuit, the commission claims that the dental board was not immune from antitrust suit because the state government did not closely supervise the board.
Justice Ruth Bader Ginsburg was sympathetic, saying the Board had no authority to send the cease and desist letters.
The decision is forthcoming in 2015.
So, what do we take from this brouhaha? Is it a government intrusion on states’ rights on how a state manages their own agencies? Or is it an occupational licensing board acting with self-interest to protect its monopoly? The latter was the comment made by Chief Justice John Roberts.
Its Not the Principal of the Thing, Its the Principle of the Thing
I’m sure there are strong arguments on both sides of the issue. The thought that comes to my mind is the old adage, “If you only get paid for what you do with your hands, somebody will do it cheaper.”
If dental care is only a commodity, then we will be in competition with other vendors of commodity services.
It was inevitable that the argument has been raised, about who should be allowed to perform this cosmetic procedure. Dentistry is a profession, which is a label that is cherished because it suggests a special status. However, many occupations claim to be professions with statements of core values and even “codes of ethics.” Some of the codes drafted are advertising, chiropractic, computing, direct marketing, fund-raising, law enforcement, lobbying, mining, the ministry, newspaper editing, organ playing, pharmacy, realty, social work, trial law, and dentistry.
Maybe we should start by having a conceptual analysis of the term “professional” and then decide who should be legitimately included.
In my view, the mouth is an organ system. One inch away is a medical specialty (otolaryngology) and 2 inches away is another medical specialty (ophthalmology). Should tooth whitening be viewed as any other procedure performed in a dental office? In other words, before bleaching shouldn’t there be a health history, comprehensive examination, differential diagnosis, and treatment plan? Shouldn’t teeth-whitening be part of a thorough, all-inclusive program for each patient’s long-term oral health?
With the oral/systemic connection validating the diagnosis and treatment of oral disease to enhance total health, shouldn’t we as a profession promote the reason for our professional education? Should we as the dental profession decide what we stand for, or should we let unelected, unaccountable bureaucrats make the decision for us?
Care, skill and judgment come to mind, not only smile and sparkle.
(Attribution: Journal of the Canadian Dental Association, September 2004, Vol. 70, No. 8 529, Jos V.M.Welie, JD, PhD.)