PUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 12-1172

THE NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, 

Petitioner, 

v. 

FEDERAL TRADE COMMISSION, 

Respondent. 

--------------------------------- 

AMERICAN DENTAL ASSOCIATION; AMERICAN OSTEOPATHIC 

ASSOCIATION; AMERICAN VETERINARY MEDICAL ASSOCIATION; 

AMERICAN ACADEMY OF PEDIATRIC DENTISTRY; AMERICAN ACADEMY OF 

PERIODONTOLOGY; AMERICAN ASSOCIATION OF ORTHODONTISTS; 

AMERICAN ASSOCIATION OF DENTAL BOARDS; FEDERATION OF STATE 

MEDICAL BOARDS; AMERICAN MEDICAL ASSOCIATION; NORTH CAROLINA 

MEDICAL SOCIETY; SOUTH CAROLINA MEDICAL ASSOCIATION; MEDICAL 

SOCIETY OF VIRGINIA; WEST VIRGINIA STATE MEDICAL 

ASSOCIATION; NATIONAL ASSOCIATION OF BOARDS OF PHARMACY; 

NORTH CAROLINA BOARD OF PHARMACY; THE FEDERATION OF STATE 

BOARDS OF PHYSICAL THERAPY; THE FEDERATION OF ASSOCIATIONS 

OF REGULATORY BOARDS; THE ASSOCATION OF SOCIAL WORK BOARDS; 

THE AMERICAN ASSOCIATION OF VETERINARY STATE BOARDS; THE 

FEDERATION OF CHIROPRACTIC LICENSING BOARDS; THE FEDERATION 

OF STATE MASSAGE THERAPY BOARDS; INTERNATIONAL CONFERENCE OF 

FUNERAL SERVICE EXAMINING BOARDS, INCORPORATED; THE NATIONAL 

ASSOCIATION OF LONG TERM CARE ADMINISTRATOR BOARDS; THE 

NATIONAL BOARD FOR CERTIFICATION IN OCCUPATIONAL THERAPY, 

Amici Supporting Petitioner, 

AMERICAN ANTITRUST INSTITUTE, 

Amicus Supporting Respondent. 

Certiorari granted by Supreme Court, March 3, 2014 

Affirmed by Supreme Court February 25, 2015
2

On Petition for Review of an Order of the Federal Trade 

Commission. (No. 9343)

Argued: December 5, 2012 Decided: May 31, 2013

Before SHEDD, KEENAN, and WYNN, Circuit Judges.

Petition denied by published opinion. Judge Shedd wrote the 

opinion, in which Judge Wynn joined. Judge Keenan wrote a 

separate concurring opinion.

ARGUED: Noel Lee Allen, ALLEN, PINNIX & NICHOLS, P.A., Raleigh, 

North Carolina, for Petitioner. Imad Dean Abyad, FEDERAL TRADE 

COMMISSION, Washington, D.C., for Respondent. ON BRIEF: M. 

Jackson Nichols, Catherine E. Lee, Nathan E. Standley, Brenner 

A. Allen, ALLEN, PINNIX & NICHOLS, P.A., Raleigh, North 

Carolina, for Petitioner. Richard A. Feinstein, Director, 

Richard B. Dagen, William L. Lanning, Willard K. Tom, General 

Counsel, John F. Daly, Deputy General Counsel for Litigation, 

FEDERAL TRADE COMMISSION, Washington, D.C., for Respondent. 

Jack R. Bierig, Dale E. Thomas, SIDLEY AUSTIN LLP, Chicago, 

Illinois, for American Dental Association, American Osteopathic 

Association, American Veterinary Medical Association, American 

Academy of Pediatric Dentistry, American Academy of 

Periodontology, American Association of Orthodontists, American 

Association of Dental Boards, and Federation of State Medical 

Boards, Amici Supporting Petitioner. Leonard A. Nelson, 

AMERICAN MEDICAL ASSOCIATION, Chicago, Illinois; Stephen W. 

Keene, NORTH CAROLINA MEDICAL SOCIETY, Raleigh, North Carolina; 

J. Mitchell Armbruster, SMITH, ANDERSON, BLOUNT, DORSETT, 

MITCHELL & JERNIGAN, L.L.P., Raleigh, North Carolina, for The 

American Medical Association and the Medical Associations for 

the States of North Carolina, South Carolina, Virginia, and West 

Virginia, Amici Supporting Petitioner. Matthew W. Sawchak, 

Stephen D. Feldman, ELLIS & WINTERS LLP, Raleigh, North 

Carolina, for The National Association of Boards of Pharmacy and 

The North Carolina Board of Pharmacy, Amici Supporting 

Petitioner. Lee K. Van Voorhis, Jennifer A. Semko, Jeremy W. 

Cline, BAKER & MCKENZIE, LLP, Washington, D.C., for The 

Federation of State Boards of Physical Therapy, The Federation 

of Associations of Regulatory Boards, The Association of Social 

Work Boards, The American Association of Veterinary State 

Boards, The Federation of Chiropractic Licensing Boards, The 
3

Federation of State Massage Therapy Boards, International 

Conference of Funeral Service Examining Boards, Incorporated,

The National Association of Long Term Care Administrator Boards, 

and The National Board for Certification in Occupational 

Therapy, Amici Supporting Petitioner. Richard M. Brunell, 

Director of Legal Advocacy, AMERICAN ANTITRUST INSTITUTE, 

Washington, D.C.; Peter C. Carstensen, UNIVERSITY OF WISCONSIN 

LAW SCHOOL, Madison, Wisconsin; K. Craig Wildfang, Ryan W. 

Marth, Scott M. Kranz, ROBINS, KAPLAN, MILLER & CIRESI L.L.P., 

Minneapolis, Minnesota, for American Antitrust Institute, Amicus 

Supporting Respondent.
4

SHEDD, Circuit Judge:

The North Carolina State Board of Dental Examiners (the 

Board) petitions for review of the Federal Trade Commission 

(FTC) order finding that the Board violated the FTC Act, 15 

U.S.C. § 45, by engaging in unfair competition in the market for 

teeth-whitening services in North Carolina. For the following 

reasons, we deny the petition.

I.

The Board is a state agency, N.C. Gen. Stat. § 90-48, 

created because the “practice of dentistry” in North Carolina 

affects “the public health, safety and welfare,” N.C. Gen. Stat. 

§ 90-22(1)(a). The eight-member Board is comprised of six 

licensed dentists, one licensed dental hygienist, and one 

consumer member. N.C. Gen. Stat. § 90-22(b). Dentists elect 

the six dental members, and dental hygienists elect the 

hygienist member. Id. § 90-22(c). If an election ends in a 

tie, the candidates are allowed to describe their positions on 

issues that will come before the Board before a revote is held. 

The Governor appoints the consumer member. The Board is funded 

by fees paid by licensed dentists and dental hygienists in North 

Carolina. Board members—other than the consumer member—are 

required to maintain an active dentistry practice while serving, 

and during the relevant time frame, several Board members 

provided teeth-whitening services.
5

North Carolina’s Dental Practice Act provides that it is 

unlawful for an individual to practice dentistry in North 

Carolina without a license from the Board. See N.C. Gen. Stat. 

§ 90-29(a). Under the Dental Practice Act, a person “shall be 

deemed to be practicing dentistry” if that person, inter alia, 

“[r]emoves stains, accretions or deposits from the human teeth.” 

N.C. Gen. Stat. § 90-29(b)(2). The Board has the “power” to (1) 

refuse to issue a license to practice dentistry; (2) refuse to 

renew a license; (3) revoke or suspend a license; or (4) take 

other disciplinary measures “against a licensee as it deems fit 

and proper.” N.C. Gen. Stat. § 90-41. If the Board suspects an 

individual of engaging in the unlicensed practice of dentistry, 

it may bring an action to enjoin the practice in North Carolina 

Superior Court or may refer the matter to the District Attorney 

for criminal prosecution. See N.C. Gen. Stat. § 90-40.1. This 

power is hardly unique, however, because such actions may also 

be maintained by the “Attorney General for the State of North 

Carolina, the district attorney of any of the superior courts,” 

or “any resident citizen.” Id. Moreover, the Board does not 

have the authority to discipline unlicensed individuals or to 

order non-dentists to stop violating the Dental Practice Act. 

This case involves the market for teeth-whitening services 

in North Carolina. Teeth-whitening is a popular cosmetic dental 

procedure that is available in North Carolina, as in most 
6

states, in several forms, including as an in-office dental 

treatment, as dentist-provided take-home kits, as over-thecounter products, and as services provided by non-dentists at 

salons, mall kiosks, and other locations. Each of these teethwhitening services involves applying peroxide to the teeth by 

means of a gel or strip, which triggers a chemical reaction that 

results in whiter teeth. The services differ, however, in the 

immediacy of the results, the ease of use, the necessity of 

repeat applications, the need for technical support, and price. 

Not surprisingly, in-office dentist whitening procedures are 

fast, effective, and usually do not require repeated 

applications, but they are also the “most costly” offering. 

(J.A. 146). In contrast, over-the-counter whitening products 

typically contain lower concentrations of peroxide and may 

require multiple applications to achieve results, but they cost 

far less.

Beginning in the 1990s, dentists started providing 

whitening services throughout North Carolina. In about 2003, 

non-dentists also started offering teeth-whitening services, 

often at a significantly lower price than dentists. Shortly 

thereafter, dentists began complaining to the Board about the

non-dentists’ provision of these services.

Relevant here, after receiving complaints from dentists, 

the Board opened an investigation into teeth-whitening services 
7

performed by non-dentists. A case officer (a dentist board 

member) spearheaded the investigation, leading an investigatory

panel consisting of the Board’s Deputy Operations Officer, an 

Investigator, and on occasion the Board’s legal counsel. 

Although permitted to do so, neither the consumer member nor the 

hygienist member participated in any of the teeth-whitening 

investigations. During meetings, the Board discussed the 

increasing number of complaints regarding non-dentist teethwhitening services and indicated to practicing dentists that the 

Board was attempting to shut down these non-dentist providers. 

As a result of the investigations, the Board issued at 

least 47 cease-and-desist letters to 29 non-dentist teethwhitening providers. The letters were issued on official 

letterhead and requested that the target cease and desist “all 

activity constituting the practice of dentistry.” (J.A. 159). 

Several letters indicated that the sale or use of teethwhitening products by a non-dentist is a misdemeanor. These 

letters effectively caused non-dentists to stop providing teethwhitening services in North Carolina and also caused 

manufacturers and distributors of teeth-whitening products used 

by these non-dentist providers to exit or hold off entering 

North Carolina. The Board also sent letters to mall operators 

in an effort to stop malls from leasing kiosk space to nondentist teeth-whitening providers; additionally, the Board 
8

contacted the North Carolina Board of Cosmetic Art Examiners to 

request that the Cosmetic Board inform its members and licensees 

to refrain from providing teeth-whitening services. 

In sum, the Board successfully expelled non-dentist 

providers from the North Carolina teeth-whitening market. On 

June 17, 2010, the Federal Trade Commission issued an 

administrative complaint against the Board, charging it with 

violating 15 U.S.C. § 45, the FTC Act, by excluding non-dentist 

teeth whiteners from the market. The Board moved to dismiss the 

complaint, arguing that the FTC lacked jurisdiction over it and, 

alternatively, that it was exempt from the federal antitrust 

laws under the “state action” doctrine. An Administrative Law 

Judge (ALJ) denied the motion, and the FTC affirmed. 

Interlocutory Order In re North Carolina State Bd. of Dental 

Exam’rs, 151 F.T.C. 607, 2011 WL 3568990 (FTC February 3, 2011) 

(Interlocutory Order). In response, the Board filed a federal 

declaratory action, raising the same grounds and requesting that 

a federal court stop the administrative proceeding against it. 

The district court dismissed that action as an improper attempt 

to enjoin ongoing administrative procedure.1

 North Carolina 

 1 The Board has appealed that decision. See North Carolina 

State Bd. of Dental Exam’rs v. FTC, No. 11-1679. In light of 

our opinion in this petition for review, we have dismissed that 

appeal as moot. 
9

State Bd. of Dental Examiners v. FTC, 768 F. Supp.2d 818 

(E.D.N.C. 2011). 

The ALJ then held a merits trial and issued an opinion 

finding that the Board violated the FTC Act. On appeal, the 

FTC—applying a de novo standard of review—affirmed and entered a 

final order against the Board that included a cease-and-desist 

order enjoining the Board from, inter alia, continuing to 

unilaterally issue extra-judicial orders to teeth-whitening 

providers in North Carolina. In re North Carolina State Bd. of 

Dental Exam’rs, 2011-2 Trade Cases P 77705, 2011 WL 6229615, at 

*2-5 (FTC December 7, 2011) (Final Order). 

The Board petitions for review of the FTC’s final order, 

raising three arguments: that it is exempt from the antitrust 

laws under the state action doctrine; that it did not engage in 

concerted action under § 1 of the Sherman Act; and that its

activities did not unreasonably restrain trade under § 1. We 

address each in turn. 

II.

A.

We begin with the Board’s contention that it is exempt from 

the antitrust laws under the “state action” doctrine.2

 Under 

 2 The Board also argues that the FTC lacked jurisdiction 

over it because it is not a “person” under the FTC Act, 15 

U.S.C. § 45(a)(2). We find this argument to be without merit. 

(Continued)
10

this doctrine, the antitrust laws do “not apply to 

anticompetitive restraints imposed by the States ‘as an act of 

government.’” City of Columbia v. Omni Outdoor Adver., Inc., 

499 U.S. 365, 370 (1991) (quoting Parker v. Brown, 317 U.S. 341, 

352 (1943)). In Parker, the Supreme Court announced this 

doctrine after recognizing that “nothing in the language of the 

Sherman Act or in its history . . . suggests that its purpose 

was to restrain a state or its officers or agents from 

activities directed by its legislature.” 317 U.S. at 350-51. 

The Parker Court cautioned, however, that a state cannot “give 

immunity to those who violate the Sherman Act by authorizing 

them to violate it, or by declaring that their action is 

lawful.” 317 U.S. at 351. 

There are “three situations in which a party may invoke the 

Parker doctrine.” South Carolina State Bd. of Dentistry v. FTC, 

455 F.3d 436, 442 (4th Cir. 2006). First, a state’s own actions 

 

The Supreme Court has held that a state is a “person” under the 

Sherman Act and the Clayton Act. Jefferson Cnty. Pharm. Ass’n 

v. Abbott Labs., 460 U.S. 150, 155 (1983) (Clayton Act); City of 

Lafayette v. La. Power & Light Co., 435 U.S. 389, 395 (1978) 

(Sherman Act). In Jefferson County, the Court noted it did not 

“perceive any reason to construe the word ‘person’ in [the 

Sherman] Act any differently than we have in the Clayton Act.” 

Jefferson Cnty., 460 U.S. at 156. Given the similarities 

between the FTC Act and the Clayton and Sherman Acts, we 

likewise find that the Board is a “person” under the FTC Act. 
11

“ipso facto are exempt” from the antitrust laws.3 Hoover v. 

Ronwin, 466 U.S. 558, 568 (1984). Second, private parties can 

claim the Parker exemption if acting pursuant to a “clearly 

articulated and affirmatively expressed as state policy” and

their behavior is “actively supervised by the State itself.” 

California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 

445 U.S. 97, 105 (1980) (internal quotation marks omitted). 

Third, as the Supreme Court recently reaffirmed, municipalities 

and “substate governmental entities do receive immunity from 

antitrust scrutiny when they act pursuant to state policy to 

displace competition with regulation or monopoly public 

service.” FTC v. Phoebe Putney Health Sys., Inc., 133 S.Ct. 

1003, 1010 (2013) (internal quotation marks omitted). 

Municipalities are not required to show the active-supervision 

prong of the Midcal test, because, “[w]here the actor is a 

municipality, there is little or no danger that it is involved 

 3 The Board repeatedly asserted at oral argument that it is 

“sovereign” within the meaning of Parker. The Supreme Court has 

recognized two entities as “sovereign” under Parker—the state 

legislature and the state supreme court when “acting 

legislatively.” Hoover v. Ronwin, 466 U.S. 558, 567-68 

(1984)(citing Parker, 317 U.S. at 351 (legislature); and Bates 

v. State Bar of Arizona, 433 U.S. 350, 360 (1977) (state supreme 

court)). The actions of these entities are “ipso facto” exempt 

from the antitrust laws. Id. at 568. It is obvious that a 

state agency comprised of privately employed dentists is not the 

“sovereign” equivalent of the state legislature or state supreme 

court.
12

in a private price-fixing arrangement.” Town of Hallie v. City 

of Eau Claire, 471 U.S. 34, 47 (1985) (emphasis in original).4 

The Court’s rationale stemmed from the fact that a 

municipality’s conduct is “likely to be exposed to public 

scrutiny” and “checked to some degree through the electoral 

process.” Id. at 45 n.9. Thus, “at the end of the day a 

municipality shares the state’s ‘immunity’ when but only when it 

 4 The Hallie Court also included the following footnote 

addressing state agencies: 

In cases in which the actor is a state agency, it is 

likely that active state supervision would also not be 

required, although we do not here decide that issue. 

Where state or municipal regulation by a private party 

is involved, however, active state supervision must be 

shown, even where a clearly articulated state policy 

exists. 

Town of Hallie v. City of Eau Claire, 471 U.S. 34, 46 n.10 

(1985). Relying on this footnote, the Board maintains that, 

because it is categorized as a state agency by North Carolina, 

it, too, is not required to show active supervision. This 

footnote, however, does not bear quite the weight the Board 

suggests. First, in Southern Motor Carriers Rate Conference, 

Inc. v. United States, 471 U.S. 48, 57 (1985), issued the same 

day as Hallie, the Court stated that Midcal continued to define

“most specifically” the situations in which “state agencies” 

were entitled to the Parker exemption. Second, as the FTC 

explained in rejecting the Board’s argument, “the dicta in 

footnote 10 of Hallie must be reconciled with the Court’s other 

language and reasoning in that same decision,” including its 

discussion of Goldfarb v. Virginia State Bar, 421 U.S. 773 

(1975), which we discuss infra at 15-16. Interlocutory Order, 

151 F.T.C. at 625. Although we find the dicta in Hallie

inapplicable in the instant case, where the “state agency” is 

composed entirely of private market participants, our opinion 

should not be read as precluding more quintessential state 

agencies from arguing that they need not satisfy the active 

supervision requirement. 
13

is implementing anticompetitive policies authorized by the 

state.” Kay Elec. Coop. v. City of Newkirk, 647 F.3d 1039, 1042 

(10th Cir. 2011).

While Parker is available in these three circumstances, in 

Phoebe Putney the Court cautioned that “given the fundamental 

national values of free enterprise and economic competition that 

are embodied in the federal antitrust laws, ‘state-action 

immunity is disfavored, much as are repeals by implication.’” 

Phoebe Putney, 133 S.Ct. at 1010 (quoting FTC v. Ticor Title 

Ins. Co., 504 U.S. 621, 636 (1992)). Thus, “we recognize stateaction immunity only when it is clear that the challenged 

anticompetitive conduct is undertaken pursuant to a regulatory 

scheme that ‘is the State’s own.’” Id. (quoting Ticor, 504 U.S. 

at 635).

B.

In this case, the FTC first held that the Board was a 

private party required to meet both prongs of Midcal and then 

concluded that the Board could not show it was actively 

supervised by North Carolina. The FTC rejected the Board’s 

argument that, as a state agency, it was a substate governmental 

entity that only had to show its actions were authorized by a 

clearly articulated state policy. While recognizing that state 

agencies may, in some instances, fall within Hallie, the FTC 

found that the “Court has been explicit in applying the 
14

antitrust laws to public/private hybrid entities, such as 

regulatory bodies consisting of market participants” like the 

Board. Interlocutory Order, 151 F.T.C. at 619. The FTC 

explained that the “operative factor is a tribunal’s degree of 

confidence that the entity’s decision-making process is 

sufficiently independent from the interests of those being 

regulated,” and that, because a decisive majority of the Board 

was elected by dentists, it was required to meet the activesupervision requirement. Id. The FTC found this conclusion was 

supported by the policies underlying the state action doctrine:

Decisions that are made by private parties who 

participate in the market that they regulate are not 

subject to these political constraints unless these 

decisions are reviewed by disinterested state actors 

to assure fealty to state policy. Without such 

review, “there is no realistic assurance that a 

private party’s anticompetitive conduct promotes state 

policy, rather than merely the party’s individual 

interests.” Patrick v. Burget, 486 U.S. 94, 101 

(1988). Therefore, allowing the antitrust laws to 

apply to the unsupervised decisions of self-interested 

regulators acts as a check to prevent conduct that is 

not in the public interest.

Id. at 622. 

Having reached this conclusion, the FTC then easily 

determined that the Board was not actively supervised because it 

pointed only to “generic oversight” that did “not substitute for 

the required review and approval of the ‘particular 

anticompetitive acts’ that the complaint challenges.” Id. at 

630 (quoting Patrick, 486 U.S. at 101). 
15

C.

In its petition for review, the Board renews its contention 

that, as a state agency, it is only required to show clear 

articulation. Alternatively, the Board contests the FTC’s 

conclusion that its conduct was not actively supervised. We 

disagree with the Board on both counts. 

First, we agree with the FTC that state agencies “in which 

a decisive coalition (usually a majority) is made up of 

participants in the regulated market,” who are chosen by and 

accountable to their fellow market participants, are private 

actors and must meet both Midcal prongs. Phillip E. Areeda & 

Herbert Hovenkamp, 1A Antitrust Law: An Analysis of Antitrust 

Principles and Their Application ¶ 227b, at 501 (3d ed. 2009).

See also Einer Richard Elhauge, The Scope of Antitrust Process, 

104 Harv. L. Rev. 667, 689 (1991) (concluding that “financially 

interested action is . . . ‘private action’ subject to antitrust 

review”). This result accords with Supreme Court precedent as 

well as our own.

For example, in Goldfarb v. Virginia State Bar, 421 U.S. 

773 (1975), the Court addressed an ethical opinion enforced by 

the Virginia State Bar Association that required attorneys to 

abide by a minimum fee schedule. The Bar was a “state agency by 

law,” id. at 790, with the “power to issue ethical opinions,”
16

id. at 791. The Court still denied the Parker exemption to the 

Bar, concluding that:

The fact that the State Bar is a state agency for some 

limited purposes does not create an antitrust shield 

that allows it to foster anticompetitive practices for 

the benefit of its members. Cf. Gibson v. Berryhill, 

411 U.S. 564, 578-579 (1973). The State Bar, by 

providing that deviation from County Bar minimum fees 

may lead to disciplinary action, has voluntarily 

joined in what is essentially a private 

anticompetitive activity, and in that posture cannot 

claim it is beyond the reach of the Sherman Act.

Id. at 791-92. 

The key, according to the Goldfarb Court, was that the 

Parker exemption did not permit the state agency to “foster 

anticompetitive practices for the benefit of its members.” When 

a state agency and its members have the attributes of a public 

body—such as a municipality—and are subject to public scrutiny 

such that “there is little or no danger that [they are] involved 

in a private price-fixing arrangement,” active supervision is 

not required. Hallie, 471 U.S. at 47. However, when a state 

agency appears to have the attributes of a private actor and is 

taking actions to benefit its own membership—as in Goldfarb—both 

parts of Midcal must be satisfied. Requiring active supervision 

over such entities ensures “the State has exercised sufficient 

independent judgment and control so that the details of the 

[challenged action] have been established as a product of 

deliberate state intervention.” Ticor, 504 U.S. at 634. 
17

We have indicated—prior to Midcal and Hallie—that a state 

agency operated by market participants must show active state 

involvement. See Asheville Tobacco Bd. of Trade, Inc. v. FTC, 

263 F.2d 502, 509 (4th Cir. 1959). In Asheville Tobacco, we 

addressed conduct by a local board of trade comprised of market 

participants. The board was “an administrative agency of the 

State of North Carolina,” id. at 508, that was granted the 

authority under state law to “make reasonable rules and 

regulations” for selling “leaf tobacco at auction,” id. at 505. 

We found that the board was required to show that it was 

adequately supervised by the state because, in function, the 

board was a private actor “organized primarily for the benefit 

of those engaged in the business.” Id. at 509.5 Of particular 

relevance was the fact that the officers were appointed from the 

board’s membership and not by the State—a factor also present in 

this case. Id. at 510. See also Washington State Elec. 

Contractors Ass’n, Inc. v. Forrest, 930 F.2d 736, 737 (9th Cir. 

1991) (noting state regulatory council “may not” qualify as 

“state agency” because it “has both public and private members, 

and the private members have their own agenda”); FTC v. Monahan, 

832 F.2d 688, 689-90 (1st Cir. 1987) (Breyer, J.) (noting state 

 5 In reaching this conclusion, we specifically found that we 

were “not bound by the State court’s characterization of the 

boards.” Asheville Tobacco, 263 F.2d at 509. 
18

pharmacy board’s status as public or private “depends upon how 

the Board functions in practice, and perhaps upon the role 

played by its members who are private pharmacists”).6

In sum, we agree with the FTC that, as here, when a state 

agency is operated by market participants who are elected by 

other market participants, it is a “private” actor. 

Accordingly, it is required to satisfy both Midcal prongs to 

obtain the Parker exemption.

D.

Second, having concluded that the Board must satisfy both 

Midcal prongs, we likewise agree with the FTC that the Board 

cannot satisfy Midcal’s active-supervision prong. In Midcal, 

the Court found that California did not actively supervise the 

wine-selling scheme at issue because California law: (1) “simply 

 6 Although the Board points to several cases concluding that 

a state agency did not have to demonstrate active supervision, 

these cases do not create the bright-line rule that the Board

requests. See Earles v. State Bd. of Certified Public 

Accountants of Louisiana, 139 F.3d 1033, 1041 (5th Cir. 1998); 

Bankers Ins. Co. v. Florida Residential Prop. & Cas. Joint 

Underwriting Ass’n, 137 F.3d 1293, 1296-97 (11th Cir. 1998); 

Hass v. Oregon State Bar, 883 F.2d 1453, 1460 (9th Cir. 1989); 

Gambrel v. Kentucky Bd. of Dentistry, 689 F.2d 612, 620-21 (6th 

Cir. 1982). Instead, in each case, those courts merely 

determined that the particular state agency at issue was more 

akin to a municipality than a private actor. See, e.g., Earles, 

139 F.3d at 1041 (noting the “Board is functionally similar to a 

municipality”); Hass, 883 F.2d at 1460 (review of state 

provisions left “no doubt that the Bar is a public body, akin to 

a municipality for purposes of the state action exemption”). 
19

authorizes price setting and enforces the prices established by 

private parties”; (2) “neither establishes prices nor reviews 

the reasonableness of the price schedules”; (3) does not 

“regulate the terms of fair trade contracts”; (4) and does not 

“monitor market conditions or engage in any ‘pointed 

reexamination’ of the program.” Midcal, 445 U.S. at 105–06. The 

Court reinforced that our national policy in favor of robust 

competition “cannot be thwarted by casting such a gauzy cloak of 

state involvement over what is essentially a private pricefixing arrangement.” Id. at 106. As the Court later noted, 

“[t]he mere presence of some state involvement or monitoring 

does not suffice.” Patrick, 486 U.S. at 101.

North Carolina has done far less “supervision” in this case 

than the Court found wanting in Midcal. Here, the cease-anddesist letters were sent without state oversight and without the 

required judicial authorization. The Board has pointed to 

certain reporting provisions and “good government” provisions in 

North Carolina law, but those fall far short of the type of 

supervision in Midcal that was nonetheless considered deficient. 

As the FTC explained, “[t]his sort of generic oversight, 

however, does not substitute for the required review and 

approval of the ‘particular anticompetitive acts’” challenged by 

the FTC. Interlocutory Order, 151 F.T.C. at 630 (quoting 

Patrick, 486 U.S. at 101). 
20

III.

We next turn to the question of whether the FTC properly 

found that the Board’s behavior violated the FTC Act. The FTC’s 

factual findings are conclusive if supported by substantial 

evidence, Telebrands Corp. v. FTC, 457 F.3d 354, 358 (4th Cir. 

2006), and, while we review legal issues de novo, we “give some 

deference to the Commission’s informed judgment that a 

particular commercial practice is to be condemned as ‘unfair,’” 

FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 454 (1986). 

“The [FTC Act] forbids a court to ‘make its own appraisal of the 

testimony, picking and choosing for itself among uncertain and 

conflicting inferences.’” Id. (quoting FTC v. Algoma Lumber 

Co., 291 U.S. 67, 73 (1934)). 

The FTC Act makes unlawful “[u]nfair methods of 

competition.” 15 U.S.C. § 45(a)(1). In this case, the FTC 

determined that the Board’s conduct violated § 45(a)(1) because 

it was a violation of § 1 of the Sherman Act, which we have 

previously recognized is a “species” of “unfair competition.” 

South Carolina Bd. of Dentistry, 455 F.3d at 443 n.7. 

Accordingly, because the FTC limited its review to whether the 

Board’s conduct violated § 1, we do the same. Section 1 of the 

Sherman Antitrust Act prohibits “[e]very contract, combination .

. ., or conspiracy, in restraint of trade.” 15 U.S.C. § 1. To 

establish a § 1 antitrust violation, a plaintiff must prove “(1) 
21

a contract, combination, or conspiracy; (2) that imposed an 

unreasonable restraint of trade.” Dickson v. Microsoft Corp., 

309 F.3d 193, 202 (4th Cir. 2002). Here, the Board challenges 

both of these requirements, arguing that, under the 

intracorporate immunity doctrine, see Copperweld Corp. v. 

Independence Tube Corp., 467 U.S. 752, 771 (1984), it is 

incapable of conspiring with itself, and that, to the extent 

that doctrine does not apply, the FTC failed to prove a 

combination or conspiracy that imposed an unreasonable restraint 

of trade.

A.

Section 1 of the Sherman Act applies “only to concerted 

action,” American Needle, Inc. v. National Football League, 130 

S.Ct. 2201, 2208 (2010), and “unilateral conduct is excluded 

from its purview,” Oksanen v. Page Memorial Hosp., 945 F.2d 696, 

702 (4th Cir. 1991). In American Needle, the Court recognized 

that “[a]greements made within a firm can constitute concerted 

action . . . when the parties to the agreement act on interests 

separate from those of the firm itself” such that “the intrafirm 

agreements may simply be a formalistic shell for ongoing 

concerted action.” American Needle, 130 S.Ct. at 2215. See

also Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 

212, 224 (4th Cir. 2004) (recognizing “independent personal 

stake exception” to Copperweld). As the American Needle Court 
22

explained, “substance,” not “form” determines whether an “entity 

is capable of conspiring under § 1,” and the key inquiry is 

“whether there is a conspiracy between ‘separate economic actors 

pursuing separate economic interests, such that the agreement 

deprives the marketplace of independent centers of decision 

making.’” Robertson v. Sea Pines Real Estate Co., 679 F.3d 278, 

285 (4th Cir. 2012) (quoting American Needle, 130 S.Ct. at 

2212). 

Applying American Needle, the FTC concluded that “Board 

members were capable of conspiring because they are actual or 

potential competitors.” Final Order, 2011 WL 6229615, at *20.

Specifically, the FTC found that “Board members continued to 

operate separate dental practices while serving on the Board,” 

and that the “Board members had a personal financial interest in 

excluding non-dentist teeth whitening services” because many of 

them offered teeth-whitening services as part of their 

practices. Id. The FTC continued by noting its conclusion was 

“buttressed by the significant degree of control exercised by 

dentist members of the Board with respect to the challenged 

restraints.” Id. at *21. 

We uphold the FTC’s finding that the Board has the capacity 

to conspire under § 1. As American Needle made clear, concerted 

action is satisfied when an agreement exists between “separate 

economic actors” such that any agreement “deprives the 
23

marketplace of independent centers of decision making.” 

American Needle, 130 S.Ct. at 2212 (internal quotation marks 

omitted). The Board members—apart from the consumer member—are 

active dentists who are required, by the Dental Practice Act,

N.C. Gen. Stat § 90-22(b), to be actively engaged in dentistry 

during their Board tenure. As even the Board’s own expert 

recognized,7 the Board members’ active-service requirement can 

create a conflict of interest since they serve on the Board 

while they remain “separate economic actors” with a separate 

financial interest in the practice of teeth whitening. Cf.

Oksanen, 945 F.2d at 706 (noting “a medical staff can be 

comprised of physicians with independent and at times competing 

economic interests” and thus “have the capacity to conspire as a 

matter of law”).8

 Any agreement between the Board members thus 

deprives the market of an independent center of decision making. 

 7 The Board’s expert testified that the Board is concerned 

about the financial interests of dentists, and that there “is a 

financial aspect” to the decision to exclude the non-dentist 

teeth whiteners. (J.A. 580). 

8 The fact that the Board members may have a unity of 

purpose in the particular restraint at issue—expelling nondentist teeth whiteners from the market—does not render them 

incapable of conspiring under § 1, because some “commonality of 

interest exists in every cartel.” Los Angeles Memorial Coliseum 

Comm’n v. NFL, 726 F.2d 1381, 1389 (9th Cir. 1984). The salient 

fact is that the Board members, in their private business, 

remain “separately controlled, potential competitors.” American 

Needle, 130 S.Ct. at 2215. 
24

Moreover, the Board’s status as a single entity is not 

dispositive because “[c]ompetitors ‘cannot simply get around’ 

antitrust liability by acting ‘through a third-party

intermediary or joint venture.’” American Needle, 130 S.Ct. at 

2215-16 (quoting Major League Baseball Properties, Inc. v. 

Salvino, Inc., 542 F.3d 290, 336 (2d Cir. 2008) (Sotomayor, J., 

concurring in judgment)). In Robertson, we rejected the 

argument that the MLS listing service’s status as a “single 

corporation” rendered it incapable of § 1 conspiracy because it 

was “comprised of individual real estate brokerages that are 

separately incorporated and that compete with each other in the 

sale and purchase of real estate.” Robertson, 679 F.3d at 285. 

Importantly, we found implausible the MLS’s contention that the 

realtors could not violate § 1 because the “individual 

brokerages acted only in their capacities as MLS board members.” 

Id. at 284. Likewise, in this case the Board’s members are 

separate economic actors who cannot escape liability under § 1 

simply by organizing under a “single umbrella.” American

Needle, 130 S.Ct. at 2212.

B.

Having determined that the Board is capable of conspiring

under § 1, we next examine whether the FTC’s conclusion that the 

Board engaged in concerted action is supported by substantial 

evidence. Of course, concluding that the Board has the capacity 
25

to conspire “does not mean, however, that every action taken” by 

the Board “satisfies the contract, combination, or conspiracy 

requirement of section one.” Oksanen, 945 F.2d at 706. Thus, 

to be concerted action, the parties must have “a conscious 

commitment to a common scheme designed to achieve an unlawful 

objective.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 

752, 768 (1984). We have indicated there must be “something 

more” than independent action, such as “a unity of purpose or a 

common design and understanding, or a meeting of the minds.” 

Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House 

Group, Inc., 878 F.2d 801, 805-06 (4th Cir. 1989). Concerted 

action may be proven by “direct or circumstantial evidence.” 

Monsanto, 465 U.S. at 768. 

The FTC found both direct and circumstantial evidence to 

support a finding of concerted action. First, the FTC concluded 

that “[o]n several occasions, the Board discussed teeth 

whitening services provided by non-dentists and then voted to 

take action to restrict these services.” Final Order, 2011 WL 

6229615, at *23. Second, the FTC found a “wealth” of 

circumstantial evidence to the same effect—members “engaged in a 

consistent practice of discouraging non-dentist teeth whitening 

services” through their cease-and-desist letters and other 

efforts. Id. The FTC found these communications were “similar” 

and had the “common objective” of closing the market. Id. It 
26

was this “consistency” and “frequency” that pointed to concerted 

action. Id. Substantial evidence supports this conclusion. As 

the FTC found, several of these letters were sent after votes by 

the Board, and the lengthy consistent campaign of sending 

letters and cease-and-desist orders is suggestive of coordinated 

action.9

 Accordingly, we agree with the FTC that the Board 

engaged in a combination or conspiracy under § 1. 

IV.

Finally, the Board challenges the FTC’s conclusion that its 

actions amounted to an unreasonable restraint of trade under 

§ 1. As noted above, we review the FTC’s legal conclusion de 

novo—while giving some deference to its expertise—and we uphold 

its factual findings if supported by substantial evidence. 

Indiana Fed’n of Dentists, 476 U.S. at 454. We have recognized 

three forms of analysis for determining if conduct violates § 1: 

(1) per se; (2) quick-look; and (3) rule of reason. Continental 

Airlines, Inc. v. United Airlines, Inc., 277 F.3d 499, 508-09

(4th Cir. 2002).10 “The boundaries between these levels of 

 9 The Board renews its argument—made with regard to the 

state action doctrine—that enforcement of state law can never be 

an antitrust conspiracy. As previously discussed, the Board was 

acting to regulate third parties in a manner not authorized by 

state law. 

10 The per se analysis, which “permits courts to make 

‘categorical judgments’ that certain practices, including price 

fixing, horizontal output restraints, and market-allocation 

(Continued)
27

analysis are fluid,” and they are “best viewed as a continuum.” 

Id. at 509. “In all cases, however, ‘the criterion to be used 

in judging the validity of a restraint on trade is its impact on 

competition.’” Id. (quoting National Collegiate Athletic Ass’n

v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 104 (1984)). 

The rule of reason applies “if the reasonableness of a 

restraint cannot be determined without a thorough analysis of 

its net effects on competition in the relevant market.” Id. In 

some instances, an examination short of the rule of reason can 

be substituted, that is, when a “quick look” indicates the 

anticompetitive effect of the conduct “but procompetitive 

justifications . . . also exist.” Id. “Rather than focusing 

upon the category to which a particular restraint should be 

assigned,” Polygram Holding, Inc. v. FTC, 416 F.3d 29, 35 (D.C. 

Cir. 2005), the “‘essential inquiry remains the same—whether or 

not the challenged restraint enhances competition,’” California 

Dental Ass’n. v. FTC, 526 U.S. 756, 780 (1999) (quoting Bd. of 

Regents of University of Oklahoma, 468 U.S. at 104). 

Application of a quick look is appropriate when “the experience 

 

agreements,” are per se violative of § 1, is not at issue in 

this case because the FTC utilized the “quick look” and full 

rule of reason analysis. Continental Airlines, 277 F.3d at 509

(quoting Nw. Wholesale Stationers, Inc. v. Pac. Stationery & 

Printing Co., 472 U.S. 284, 289 (1985)).
28

of the market has been so clear, or necessarily will be, that a 

confident conclusion about the principal tendency of a 

restriction will follow from a quick (or at least a quicker) 

look, in place of a more sedulous one.” Id. at 781. In 

applying this abbreviated analysis, however, a court “must 

carefully consider a challenged restriction’s possible 

procompetitive justifications.” Continental Airlines, 277 F.3d 

at 510. 

In this case, the FTC determined that the Board’s conduct 

violated § 1 under both a quick-look analysis11 and a full rule 

of reason. Final Order, 2011 WL 6229615, at *18 (noting the FTC 

analyzed the Board’s behavior under “the . . . modes of analysis 

endorsed in Indiana Federation of Dentists,” including the quick 

look approach and the rule of reason). Applying the quick look 

approach, the FTC first concluded that the conduct was 

“inherently suspect” because “[t]he challenged conduct is, at 

its core, concerted action excluding a lower-cost and popular 

group of competitors,” id. at *25, and “[n]o advanced degree in 

economics is needed to recognize” that the behavior “is likely 

 11 The FTC referred to the quick look analysis as the 

“inherently suspect” approach, consistent with its earlier 

ruling in In re Polygram Holding, Inc., 136 F.T.C. 310 (2003), 

aff’d Polygram Holding, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 

2005).
29

to harm competition and consumers, absent a compelling 

justification,” id. at *26. 

We affirm the FTC’s mode of analysis and find that its 

conclusion that the Board’s behavior was likely to cause 

significant anticompetitive harms is supported by substantial 

evidence. See Fashion Originators’ Guild of Am., Inc. v. FTC, 

312 U.S. 457, 465 (1941) (holding that manufacturer’s boycott of 

certain retailers “has both as its necessary tendency and as its 

purpose and effect the direct suppression of competition”); Nw.

Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 

472 U.S. 284, 294 (1985) (internal quotation marks omitted) 

(noting “likelihood of anticompetitive effects is clear” in 

group boycotts involving “joint efforts . . . to disadvantage

competitors by either directly denying or persuading or coercing 

suppliers or customers to deny relations the competitors need in 

the competitive struggle”). The Court has made clear that 

practices like group boycotts are amenable to the quick look 

approach—cases in which “an observer with even a rudimentary 

understanding of economics could conclude that the arrangements 

in question would have an anticompetitive effect on customers 

and markets.” California Dental, 526 U.S. at 770. It is not 

difficult to understand that forcing low-cost teeth-whitening 
30

providers from the market has a tendency to increase a 

consumer’s price for that service.12

Of note here, the Supreme Court has cautioned that we

should be hesitant to quickly condemn the actions of 

professional organizations because “certain practices by members 

of a learned profession might survive scrutiny . . . even though 

they would be viewed as a violation of the Sherman Act in 

another context.” Nat’l Soc’y of Prof’l Eng’rs v. United 

States, 435 U.S. 679, 686 (1978). See also Goldfarb, 421 U.S. 

at 788 n.17 (“The fact that a restraint operates upon a 

profession as distinguished from a business is, of course, 

relevant in determining whether that particular restraint

violates the Sherman Act.”). That is, “[t]he public service 

 12 The Board argues that FTC failed to consider its 

justification, that it “acted pursuant to state law,” and was 

“motivated by public protection concerns.” (Appellant’s Br. at 

57). The FTC found that, even assuming these were appropriate 

justifications for anticompetitive behavior, the Board failed to 

adduce factual support. The FTC recounted that the Board 

members pointed to “theoretical” risks of teeth-whitening

services without “any clinical or empirical evidence validating” 

the risks and that the Board could only point to four anecdotal 

cases of consumer injury “over a multi-year period based on 

products considered safe by the FDA and used over a million 

times over the last twenty years.” Final Order, 2011 WL 

6229615, at *33. The FTC likewise noted the “lack of 

contemporaneous evidence that the challenged conduct was 

motivated by health or safety concerns.” Id. We find this 

conclusion supported by substantial evidence. 
31

aspect” of a profession “may require that a particular practice

. . . be treated differently.” Goldfarb, 421 U.S. at 788 n.17.

The Supreme Court has likewise made pellucid, however, that 

anticompetitive acts are not immune from § 1 because they are 

performed by a professional organization. See, e.g., Arizona v. 

Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 347-51 (1982) 

(condemning as a per se § 1 violation maximum fee setting 

agreement by physicians); Indiana Fed’n of Dentists, 476 U.S. at 

459-60 (finding horizontal agreement among dentists to be a § 1 

violation under quick look analysis). We have also noted, “we 

are not inclined to condone anticompetitive conduct upon an 

incantation of ‘good medical practice.’” Virginia Acad. of 

Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 

485 (4th Cir. 1980). In this case, the Board’s status as a 

group of professionals does not condone its anticompetitive 

practices. Accordingly, we conclude that substantial evidence 

supports the FTC’s factual findings regarding the economic 

effects of the Board’s actions and that those findings support 

the conclusion that the Board’s behavior violates § 1. Indiana 

Fed’n of Dentists, 476 U.S. at 465-66. 

V.

In conclusion, we note that our decision today hardly 

sounds the death knell for federal/state balance the Board 

posits. For one, given our conclusion that the Board is a 
32

private actor under the antitrust laws, there is no federalism 

issue. To that end, we note that Board is represented by 

private counsel and the State has never intervened in the 

proceedings on the Board’s behalf. Cf. Maryland Stadium Auth.

v. Ellerbe Beckett, Inc., 407 F.3d 255, 264-65 (4th Cir. 2005) 

(noting representation by state Attorney General was factor in 

determining state control). At the end of the day, this case is 

about a state board run by private actors in the marketplace 

taking action outside of the procedures mandated by state law to 

expel a competitor from the market. Despite these actions, if 

the Board was actively supervised by the State, it would be 

entitled to the Parker exemption. Today’s opinion simply 

reinforces the Court’s admonition that federalism “serves to 

assign political responsibility, not to obscure it.” Ticor, 504 

U.S. at 636. As the FTC summarized:

allowing the antitrust laws to apply to the 

unsupervised decisions of self-interested regulators 

acts as a check to prevent conduct that is not in the 

public interest; absent antitrust to police their 

actions, unsupervised self-interested boards would be 

subject to neither political nor market discipline to 

serve consumers’ best interests.

Interlocutory Order, 151 F.T.C. at 622-23. 

For the foregoing reasons, the Board’s petition for review 

is denied. 

PETITION DENIED
BARBARA MILANO KEENAN, Circuit Judge, concurring:

I am pleased to concur in the majority’s opinion. I write 

separately to emphasize the narrow scope of our holding that the 

North Carolina State Board of Dental Examiners (the Board) is a 

private actor for purposes of the state action doctrine, and to 

discuss the practical implications of our decision. 

Under the Supreme Court’s precedent, private parties are 

immune from the antitrust laws under the state action doctrine 

when two criteria are met. See Cal. Retail Liquor Dealers Ass’n 

v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980) (Midcal). 

First, the challenged restraint must be “clearly articulated and 

affirmatively expressed as state policy,” and, second, that 

policy must be “actively supervised” by the state itself. Id. 

In this context, it is useful to state what our opinion 

does not hold. We do not hold that a state agency must always 

satisfy the active supervision prong of the standard set forth 

in Midcal to qualify for antitrust immunity under the state 

action doctrine. Nor do we hold that a state agency comprised, 

in whole or in part, of members participating in the market 

regulated by that state agency is a private actor subject to 

Midcal’s active supervision prong. Instead, our holding that 

the Board is a private actor for purposes of the state action 

doctrine turns on the fact that the members of the Board, who 

are market participants, are elected by other private 
34

participants in the market. See slip op. at 18 (“[W]hen a state 

agency is operated by market participants who are elected by

other market participants, it is a ‘private’ actor.”). 

If the Board members here had been appointed or elected by 

state government officials pursuant to state statute, a much 

stronger case would have existed to remove the Board from the 

reach of Midcal’s active supervision prong.*

 See FTC v. Phoebe 

Putney Health System, Inc., 133 S. Ct. 1003, 1010 (2013) 

(holding that municipal and certain “substate” entities of 

government receive immunity from antitrust scrutiny when they 

act pursuant to clearly articulated and affirmatively expressed 

state policy to displace competition, without regard to whether 

their activities are actively supervised by the state).

 * The separate features supporting the Board’s position 

included: (1) the North Carolina legislature’s designation of 

the Board “as the agency of the State for the regulation of the 

practice of dentistry in this State,” N.C.G.S. § 90-22(b); (2) 

the designation of Board members as “State employees,” N.C.G.S. 

§ 93B-16(b); (3) the Board members’ entitlement to sovereign 

immunity and legal defense by the state attorney general, 

N.C.G.S. §§ 93B-16(c), 143-300.3; (4) the oath Board members are 

required to take promising to uphold North Carolina’s laws and 

protect the health, safety, and welfare of the public, N.C. 

CONST. art. VI, § 7; (5) the potential that Board members may be 

punished by the North Carolina Ethics Commission if the members 

act in a manner that presents a conflict of interest, N.C.G.S. 

§§ 138A-10, 12(o); and (6) the review powers over the Board 

enjoyed by the North Carolina Joint Legislative Commission on 

Governmental Operations, which has the power to study state 

agency activities regarding “conformity with legislative 

intent,” N.C.G.S. § 120-76(1)(d).
35

I further observe that subjecting the Board to Midcal’s 

active supervision prong does not impose an onerous burden on 

either the Board or the state. The Supreme Court explained that 

“the requirement of active state supervision serves essentially 

an evidentiary function: it is one way of ensuring that the 

actor is engaging in the challenged conduct pursuant to state 

policy.” Town of Hallie v. City of Eau Claire, 471 U.S. 34, 46

(1985) (emphasis added). Accordingly, if a state creates an 

agency and directs that the members of that agency be selected 

in a manner similar to the process employed here, the agency may 

still enjoy antitrust immunity if, for example, the state 

“monitor[s] market conditions or engage[s] in [a] ‘pointed 

reexamination’” of the agency’s actions, Midcal, 445 U.S. at 

106, or if the agency’s actions have been authorized by the 

state’s judiciary or are subject to judicial enforcement 

proceedings, Bates v. State Bar of Arizona, 433 U.S. 350, 361-62 

(1977). 

In this case, I do not doubt that the Board was motivated 

substantially by a desire to eliminate an unsafe medical 

practice, namely, the performance of teeth whitening services by 

unqualified individuals under unsanitary conditions. The Board 

was aware that several consumers had suffered from adverse side

effects, including bleeding or “chemically burned” gums, after 

receiving teeth-whitening services from persons not licensed to 
36

practice dentistry. Additionally, the Board was aware that many 

of the “mall kiosks” where such teeth-whitening services are 

performed lack access to running water. The Board also received 

reports that non-licensed persons performed teeth-whitening 

services without using gloves or masks, thereby increasing the 

risk of adverse side effects. Accordingly, in my view, the 

record supports the Board’s argument that there is a safety risk 

inherent in allowing certain individuals who are not licensed 

dentists, particularly mall-kiosk employees, to perform teethwhitening services.

North Carolina is entitled to make the legislative judgment 

that the benefits of prohibiting non-dentists from performing 

dental services related to stain removal outweigh the harm to 

competition that results from excluding non-dentists from that 

market. That kind of legislative judgment exemplifies the very 

basis of the state action immunity doctrine. However, because 

“state-action immunity is disfavored,” Phoebe Putney, 133 S. Ct. 

at 1010, when the state makes such a judgment, the state must 

act as the state itself rather than through private actors only 

loosely affiliated with the state. 

Here, the fact that the Board is comprised of private 

dentists elected by other private dentists, along with North 

Carolina’s lack of active supervision of the Board’s activities, 

leaves us with little confidence that the state itself, rather 
37

than a private consortium of dentists, chose to regulate dental 

health in this manner at the expense of robust competition for 

teeth whitening services. Accordingly, the Board’s actions are 

those of a private actor and are not immune from the antitrust 

laws under the state action doctrine. With these observations, 

I am pleased to join the majority opinion.