US: FTC releases antitrust guidelines for state agencies

In North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), the Supreme Court held that the North Carolina Board of Dental Examiners (“Board”), a state agency, was not exempt from federal antitrust laws when it prohibited non-dentists from providing teeth whitening services in competition with the state’s licensed dentists.

The Court, thus, concluded that the antitrust laws apply to state agencies and regulatory boards comprised of market participants if the Board’s challenged conduct is not actively supervised by the state.

In the wake of that decision, state officials have sought advice from the FTC regarding antitrust compliance for state boards responsible for regulating occupations. In response to such requests, on October 14, 2015, the FTC Staff (“Staff”) issued guidance addressing the parameters of the “active supervision” requirement under the state action doctrine and its proper application, including the Staff’s perspective on when a state regulatory body requires active supervision in order to invoke the state action defense, and the factors that are relevant to determining whether the active supervision requirement is satisfied.

This guidance is an important tool to help state officials assess – and perhaps revise – the structure and operation of their regulatory boards to ensure they provide the necessary antitrust protection under the more narrow scope of the state action immunity doctrine.

Full content: Federal Trade Commission

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