Friday, February 04, 2011

Updated: North Carolina Dental Board Files Suit Against the Federal Trade Commission

Now, wait a minute. The Feds have already imposed themselves over Georgia and the hygienists supervision flap. But, now the Federal Trade Commission is telling the sovereign state of North Carolina they cannot regulate who practices dentistry (tooth whitening) in their state?
North Carolina's dental regulatory board filed suit Tuesday to enforce a state law that allows only dentists to perform teeth-whitening procedures.

The state Board of Dental Examiners alleges that the Federal Trade Commission overstepped its authority in trying to determine who can whiten teeth. Last year, the FTC accused the dental board of improperly trying to shut down businesses like day spas and tanning booths that also offer whitening services.

The board wants a federal judge to issue an order upholding its right to determine who can offer whitening services and requiring the FTC to remove all derogatory references to the state board and North Carolina dentists from the FTC website.
North Carolina will win this suit.

If the Obama Administration was smart they would back off their attempt to take over the state regulation of dentistry via federal regulation. Either they will lose in the federal courts or be voted out of office in 2012.


Here is a good summary of the case the North Carolina State Board of Dental Examiners has brought against the Obama Administration's Federal Trade Commission.
The North Carolina State Board of Dental Examiners sued the Federal Trade Commission today in Raleigh federal court, accusing the federal agency of multiple violations of the US Constitution and the sovereignty of North Carolina. The State Board asked Chief US District Judge Louise W. Flanagan to halt an FTC trial scheduled for later this month on charges that the State Board violated federal antitrust law. The State Board argued it is immune from such claims and the FTC has abused its own power in seeking to nullify the acts of a state government agency.

As reported earlier today, the FTC has objected to the State Board’s decision to classify teeth-whitening services as a form of “dentistry” subject to the Board’s licensing requirements. The FTC issued an administrative complaint claiming the State Board exceeded its authority. The Commission ordered a trial before one of its own judges, which is scheduled to begin on February 17. The FTC also appointed the prosecutors trying the case.

In the lawsuit filed today, the State Board said that as “an agency of the sovereign State of North Carolina,” it cannot be tried under federal antitrust law for its official acts: “The Tenth Amendment does not allow, the Sherman Antitrust Act does not authorize, and Article I, § 8 of the U.S. Constitution does not provide the FTC antitrust jurisdiction over the State Board’s enforcement of the [North Carolina] Dental Practice Act against the unauthorized practice of dentistry.”

The State Board went on to note that North Carolina has not waived its sovereign immunity against lawsuit, the FTC is not a lawful court under Article III of the US Constitution, and accoringly, “The FTC is barred by the U.S. Constitution, Article III, § 2, Clause 2 from forcing the State of North Carolina to be tried in a tribunal that is not either the U.S. Supreme Court or a lesser tribunal established by Congress as part of the federal judiciary.”

The lawsuit detailed numerous allegations of due process violations by the FTC in the course of its ongoing administrative proceedings, which the State Board characterized as an attempt to “unilaterally and forcibly expand [the FTC's] jurisdiction despite the contrary will of Congress, seven decades of adverse court precedent, and even Presidential orders.”
Read it all.

A copy of the lawsuit is here.

Again, North Carolina and each state has every right to regulate its own practice of dentistry. This case will most likely be decided in the federal appellate courts.

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