Source: X Republic TV

Federal law forbids private parties from engaging in anticompetitive conduct. But what happens when a state regulatory board is staffed by private market participants who use government power to push anticompetitive measures that advance their own economic interests? Does that also count as an antitrust violation?

The U.S. Supreme Court grappled with those questions on Tuesday when it heard oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission, a case arising from that board’s efforts to prevent non-dentists from offering teeth-whitening services. Because six of the board’s eight members are licensed practicing dentists with a direct financial stake in restricting entry to the teeth-whitening market, a lower court deemed the board’s anticompetitive conduct to be illegal under federal law.

Arguing against the dental board before the Supreme Court on Tuesday was Deputy Solicitor General Malcolm Stewart, who began his remarks by describing the board’s members as possessing “an evident self­-interest in the manner in which the dental profession is regulated and in regulations that might keep other people from competing with dentists.”

Yet Justice Antonin Scalia dismissed the notion of a self-interested licensing board out of hand. “Do you really think that the financial interest of the individual members of the board is going to be significantly affected? Of each individual member of the board?” Scalia asked. “My goodness. I—I find that hard to believe.”

Read more: http://reason.com/blog/2014/10/16/a-state-licensing-board-used-government

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