RALEIGH, N.C. -- North Carolina's dentists have filed a lawsuit challenging the Federal Trade Commission's authority to stop them from shutting down tooth-whitening operations at mall kiosks and day spas.
The lawsuit, filed Tuesday in U.S. District Court in Raleigh, alleges constitutional violations last summer when the FTC charged that the state's dental board was squelching competition by targeting the whitening services.
"We are making several constitutional arguments," said A.P. Carlton Jr., a lawyer with the Raleigh law firm Allen & Pinnix. Carlton is representing the North Carolina State Board of Dental Examiners.
Carlton said the FTC is violating the 10th Amendment , which preserves state sovereignty, by injecting its authority in a state matter. The board, which licenses and disciplines dentists, acts as a state agency, Carlton said. As such, he said, the board is also immune from antitrust charges.
"Most people have forgotten that the Constitution is not a granter of power to the federal government," Carlton said. "The Constitution is a delegation of limited authority to the federal government by we the people."
The dental board's lawsuit escalates a disagreement over what constitutes dental practice, and the motivations for making those designations.
Dentists argue that tooth-whitening services are something only a licensed dentist can perform under state law, which stipulates that stain removal is a dental procedure.
Using that law, the dental board in recent years sent letters to whitening operations that had begun proliferating in malls and spas ordering them to stop their services.
The FTC, however, alleged last summer that bleaching teeth is different from stain removal, using a slightly more powerful concentration of chemicals that are widely available in drugstore whitening strips.
It asserted that the motivation for the dental board's action was not public health, but monopolistic control of lucrative whitening services. The dental board is dominated by dentists.
The FTC's case seeks to stop the dentists from shutting down the whitening services. The dentists' lawsuit asks the court to impose limits on federal authority.
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