AMA seeks reversal of FTC ruling

The American Medical Association is not smiling over a Federal Trade Commission ruling involving teeth whitening services that the association contends could impede states' regulation of medical practices. The AMA filed a brief (PDF) with the U.S. Court of Appeals in Richmond, Va., seeking to reverse an FTC order forbidding the state dental board to restrict nondentists from whitening teeth in North Carolina.

"Although the FTC order is geared toward providers of teeth whitening services in North Carolina (and those who provide facilities for those providers) and purports to address only a minor procedural practice of a dental board, the practical effect of the order, if sustained, would be anything but minor," the AMA argued in its brief. "That effect would reach far beyond providers of teeth whitening services, far beyond dental boards, and far beyond North Carolina. In fact, as this brief will demonstrate, affirming the FTC order would greatly impede state regulation of the practice of medicine, with a devastating impact on public health, at least within the Fourth Circuit and perhaps nationally."

The FTC decision (PDF) involves the North Carolina State Board of Dental Examiners' efforts to stop nondentists who, starting around 2003, began offering teeth-whitening services in salons, spas, stores and other facilities without a dentist's supervision. Dentists complained to the board—mostly about the loss of business, according to the FTC opinion—and the board responded with "dozens of cease-and-desist letters."

The board also reportedly sent letters to mall owners and operators urging them not to lease space to nondentists offering teeth-whitening services; many complied. According to the FTC opinion, this amounted to a "concerted action" that harmed competition.

The FTC issued a decision in July 2011 and reaffirmed it with a final order on Dec. 2, which—according to an FTC news release—“specifically does not prohibit the Dental Board from investigating other nondental providers for suspected violations of the State's Dental Practice Act.”

The AMA, in an e-mailed news release, argued that court intervention is necessary to prevent states' rights from being infringed upon.

“It is crucial that licensing boards carry out the responsibilities assigned to them by state legislatures without being intimidated by federal overreach from the FTC,” Dr. Peter Carmel, president of the AMA, said in the release.