However, Jay L. Levine, a Washington, D.C.-based healthcare antitrust lawyer and a partner at Porter Wright Morris & Arthur LLP, says the FTC has built a strong case that has already been affirmed by lower courts. "If I had to place a bet, it would be on the FTC winning," Levine told me. "The courts have stressed that exemptions are narrowly applied. The FTC has a fair argument and I don't think the state action doctrine is one that the Supreme Court is looking to expand."
A ruling in favor of the FTC could have far ranging effects beyond the ability to limit teeth-whitening procedures in mall kiosks, which explains the interest in case from the AMA and other provider associations.
"There are a number of quasi governmental bodies that license professions that are made up of the professionals themselves. So, this is not merely teeth whitening," Levine says. "The question is: If you have boards like the North Carolina Dental Board made up of essentially private citizens who are in the professions, who are otherwise competitors in the given profession, and they enact rules and regulations that keep out would be entrants, is that conduct subject to antitrust laws or not? In a number of professions, and especially in healthcare, that is going to be a very big deal."
The board of dentistry case marks the second time in less than two years that the high court has taken on a case involving antitrust issues within healthcare. In February 2013 in FTC v. Phoebe Putney Health System, Inc. a unanimous Supreme Court ruled that the appeals court had "loosely" interpreted a Georgia law cited by Phoebe Putney to justify a merger that would give the consolidated health system control of about 85% of the market in the Albany, GA service region.