by Mitch Kokai
Senior Political Analyst, John Locke Foundation
One suspects that the American Founders never expected government to get involved in teeth whitening. (Imagine George Washington contemplating that possibility.)
George Leef’s latest Forbes column focuses on a court case emerging from North Carolina that offers another example of regulatory overreach.
Conspiracies to stifle competition never work very well or for long in the absence of government power. Besides, such conspiracies are illegal under the federal antitrust laws.
Therefore, special interest groups desiring to minimize or eliminate competition usually look for ways of using government regulation for their purposes. It is not only far more effective, but also largely immune for antitrust attack. A case the Supreme Court will hear in October, North Carolina State Board of Dental Examiners v. FTC perfectly illustrates the way this nasty little game is played.
Among the many cosmetic services Americans enjoy is teeth whitening. Do-it-yourself kids can be purchased for home use, but some people prefer having the whitening done by beauticians. Who do you suppose finds that unacceptable?
Smile and say, “dentists.”
Not all dentists, of course, but the North Carolina Board of Dental Examiners decided to act on behalf of those who do. Since 2003, the Board has been issuing cease and desist orders to beauty shops or any other business that offered teeth whitening services. The legal basis for such orders is that the “practice of dentistry” is restricted to licensed dentists and the Board decided that teeth whitening falls within that practice. Unless you’re a licensed dentist, you must stop.
Complaints against the unlicensed teeth whiteners came, of course, entirely from dentists, not from customers who paid for the “unauthorized” services. That’s the way it always goes with regulatory crackdowns on unlicensed competition in any field. The impetus for the anticompetitive action comes not from angry consumers who think they were not competently treated, but from practitioners unhappy that consumers took their business elsewhere.