In late 2015, the FTC released a guidance document titled FTC Staff Guidance on Active Supervision of State
Regulatory Boards Controlled by Market Participants. The
guidance responds to requests from state officials for clarity on
the state action immunity doctrine in the wake of the recent U.S.
Supreme Court decision in North Carolina State Board of Dental
Examiners v. FTC, where the Court refused to shield the dental
board from a lawsuit alleging that the board's prohibition on
non-dentist providers of teeth whitening services unlawfully
restrained competition. Recently, a federal district court denied
the Texas Medical Board's motion to dismiss a private
plaintiff's antitrust challenge to the board's new rules on
telemedicine (see Jones Day
Antitrust Alert). Also, as reported in our last issue of the
Digital Health Law Update, the Alabama Board of Medical
Examiners repealed its telehealth rules, citing concerns posed by
the Supreme Court's decision. Although nonbinding, the FTC
staff guidance discusses the N.C. Dental case and provides
the agency staff's perspective on the clear articulation and
active supervision elements of the state action defense. Among
other things, the guidance states that active supervision is
required when a controlling number (not necessarily a majority) of
decision-makers on a professional regulatory board comprises active
market participants. The guidance also references several
structures that do not constitute active supervision, such as a
state official participating in deliberations of a professional
regulatory board but lacking actual authority to disapprove
anticompetitive acts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
