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FTC, Dental Board tussle may land in highest court

Ron Haynes, proprietor of Pro White Teeth Whitening in SouthPark Mall in Charlotte, with employee Kate Law at his teeth-whitening kiosk near the mall’s food court. Haynes said he has been running the kiosk in the mall for 20 months and was not among the 40 individuals and entities that received cease-and-desist letters from the North Carolina Board of Dental Examiners. Photo by Paul Tharp

Ron Haynes, proprietor of Pro White Teeth Whitening in SouthPark Mall in Charlotte, with employee Kate Law at his teeth-whitening kiosk near the mall’s food court. Haynes said he has been running the kiosk in the mall for 20 months and was not among the 40 individuals and entities that received cease-and-desist letters from the North Carolina Board of Dental Examiners. Photo by Paul Tharp

As the collision between the Federal Trade Commission and the North Carolina Board of Dental Examiners unfolds in legal slow motion, Ron Haynes sells teeth-whitening supplies and insists he doesn’t understand the fuss.

It’s a fuss that is taking two routes toward the U.S. 4th Circuit Court of Appeals and appears bound for the U.S. Supreme Court.

The Board of Dental Examiners says non-dentist proprietors of teeth-whitening kiosks, such as Haynes, are breaking the law by practicing dentistry without a license. A subsection of G.S. § 90-29(b) defines the practice of dentistry to include the removal of “stains, accretions or deposits from human teeth.”

But Haynes, who runs his Pro White kiosk in SouthPark Mall in Charlotte, told Lawyers Weekly that his employee doesn’t remove stains from anyone’s teeth. The kiosk merely supplies the materials and equipment for teeth-whitening.

Here’s how the drama, from the halls of federal buildings in Washington, D.C., to the malls of North Carolina, is unfolding:

Don’t mess with Dr. F.L. Hunt

Addressing the 36th annual meeting of the North Carolina Dental Society in July, 1910, then-Society President Dr. F.L. Hunt in his opening remarks referred to “Illegal practitioners [who] should be ceaselessly prosecuted until they are driven from our state or until they have become properly qualified both mentally and legally, to practice dentistry in our midst.”

Hunt emphasized the importance of the prosecution and enforcement of state law to “counterbalance… the ruthless and slovenly manner” in which unauthorized practitioners undertook their practice.

Raleigh lawyer A.P. Carlton, who represents the Board, told Lawyers Weekly that in the past 100 years, the North Carolina Board of Dental Examiners has been successful at cleaning up the dental profession.

In fact, the unauthorized practice of dentistry is so rare, Carlton said, that the Board is aware of fewer than five unauthorized-practice prosecutions in the state in the past decade.

Then along came the kiosks

But that same period has seen the arrival in shopping mall of kiosks that the Board has alleged are engaging in the unauthorized practice of dentistry.

The Board is wrong, Ron Haynes said one recent afternoon, as he had his employee, Kate Law, prepare a tray with a tube resembling a syringe (which was clearly not a syringe, Haynes emphasized), a Vitamin E application swab, the teeth-whitening product and a one-size-fits-all packaged mouth-tray.

Haynes said customers open the packets containing the materials and self-apply. They sit in leather reclining chairs resembling those common in a dental office. But the chairs are for customer comfort, Haynes said, while the whitening product works its magic.

LED lights are positioned above the chairs to shine into customers’ mouths, enhancing the newly minted whiteness of their teeth.

‘Cease,’ but then the FTC stepped in

Haynes said his kiosk was monitored for a time by a Board of Dental Examiners’ investigator, but he said he did not receive one of the 40 cease-and-desist letters the Board sent to kiosk operators and their landlords statewide.

After the Board sent the cease-and-desist letters to other kiosk operators in the state, the Federal Trade Commission stepped in.

The Commission filed an antitrust complaint alleging that dentists and the Board of Dental Examiners were colluding to drive out teeth-whiteners and drive up costs for consumers in North Carolina.

And after all, Haynes said, all he and teeth-whitening proprietors want to do is provide a service to customers who might not be able to afford teeth-whitening in a dentist’s office.

“What we did was, we took a product that was once unaffordable for most people and made it affordable and convenient,” Haynes said. “It’s very simple. It’s not rocket science. Anyone can buy it over the counter.”

Collision No. 1

Closing arguments in the antitrust action were held last week in Washington, D.C. Within 70 days of the closing arguments, an administrative law judge will enter findings and a recommended order on the action, Carlton said.

Ultimately the outcome of the antitrust action may be appealed to the full Commission – comprising five presidential appointees, including the FTC chairman – with that hearing likely to occur in September or October, Carlton said.

The Commission would render a decision within 100 days of that hearing, Carlton said. The Board would have the option of appealing an unfavorable result to the 4th Circuit Court of Appeals.

Collision No. 2, or really, Act II of Collision No. 1

Another piece of the same controversy is already on its way there.

In February the Board sued the FTC in the U.S. District Court for the Eastern District of North Carolina, seeking to stay or dismiss the antitrust action.

The Board argued that it was exempt from the FTC’s antitrust action under the “state action exemption” in antitrust law. That doctrine provides that federal antitrust laws do not apply to the activities of a sovereign state.

The Board sought “injunctive relief that would prevent [the FTC]’s continued exercise of jurisdiction in the administrative proceedings,” according to an order entered May 3 by Chief U.S. District Court Judge Louise Flanagan.

Headed to the 4th Circuit …

Flanagan dismissed the Board’s case, ruling that the lawsuit sought “to subvert the established administrative review process set forth in 15 U.S.C. § 45, which vests the circuit courts with exclusive jurisdiction to hear the sort of challenges made [in the lawsuit].”

Judge Flanagan wrote that the court was without jurisdiction to hear what amounted to a “declaratory judgment action seeking to enjoin ongoing administrative proceedings.”

FTC spokesman Mitch Katz wrote in an email to Lawyers Weekly that the FTC was pleased with the result. The FTC declined to offer any further comment.

Carlton said the Board is appealing Flanagan’s ruling to the 4th Circuit. “We believe prospects on appeal are good based on existing law,” Carlton said.

Raleigh attorney M. Keith Kapp, who represented four other North Carolina licensing boards that moved to submit an amicus brief supporting the Board of Dental Examiners’ position, said the question of whether an agency like the Board would be exempt from FTC antitrust actions would be a matter of first impression under the state action doctrine.

… and maybe one step beyond

That issue may be one that ultimately lands in the United States Supreme Court, both Kapp and Carlton said.

Or, all the lawyers and federal officials could stop arguing and listen to Ron Haynes:

“The Dental Board stuff is complete nonsense. An 8-year-old kid can go online and buy the same stuff I sell. It’s all self-applied. How can they call this the practice of dentistry?”


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