This fall the U.S. Supreme Court will consider a dispute between the Federal Trade Commission and the North Carolina Board of Dental Examiners. The heart of the antitrust challenge: Can a board of industry insiders with no other government oversight take action to manipulate its own market?
The board in North Carolina sent dozens of cease-and-desist letters to spas and other businesses offering teeth-whitening services. The board also sent threatening notices to the property managers renting to the businesses. The message: You can’t perform this simple cosmetic procedure unless you’re a licensed dentist.
It’s another example of a state licensing board focused on protecting the economic interests of the workers it is supposed to be regulating. And Iowa should pay attention to the Supreme Curt case.
Last year, as part of an ongoing series on job licensing, The Des Moines Register editorial board obtained copies of more than 20 letters sent by the Iowa Dental Board to businesses offering teeth-whitening services. The letters informed owners they were “not licensed in the State of Iowa to practice dentistry” and advised them to “CEASE AND DESIST from this illegal activity.”
(Unlike North Carolina, Iowa law specifies only dentists can whiten teeth, a change in the statute that came about after lobbying by the dental board a few years ago. The statute may prevent an antitrust lawsuit, but it would not necessarily stand up to a constitutional challenge in court.)
Iowa board investigators visited mall kiosks, tanning salons and people’s homes. In some cases investigators posed as customers, asking questions, including whether the worker was certified in CPR, and had the worker walk them through the process. Then they revealed who they were and informed them of the law.
One man who had rented space in a Cedar Rapids mall to offer teeth whitening told investigators he had consulted an attorney and purchased a franchise and was just getting started in his new endeavor. Another was so rattled by the investigators he said “he was closing immediately,” according to reports we obtained.
Whitening teeth is not dangerous. The greatest risks are irritated gums and increased tooth sensitivity. Many people buy a mouth tray and whiten their own teeth with the same products purchased by dentists. Injured Iowans were not complaining to the dental board. This isn’t about protecting the public.
It’s about a board made up of mostly dental professionals ensuring that dentists capture all revenue from a lucrative cosmetic service. It’s about the board using its power to shut out competitors.
Of course this should come as no surprise in Iowa where you can’t style a wig or massage a back without permission from the state. Iowa has mastered the art of devising job licensing requirements that thwart competition, kill small business and make it difficult for new workers to enter many professions.
If state officials aren’t going to bring common sense to the licensing laws, they might find themselves dealing with a court challenge similar to North Carolina’s.