Are State AGs Following a Recent Supreme Court Ruling?
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Three public interest groups sent letters to find out if states are holding professional licensing and regulatory agencies to antitrust regulations.
Public interest groups are pressuring every state attorney general to uphold a U.S. Supreme Court decision handed down in February that subjects many state licensing and professional regulatory boards to antitrust regulations.
In North Carolina State Board of Dental Examiners v. FTC, the high court ruled that state agencies run by the professionals they regulate aren’t entitled to the antitrust exemption for “state action.”
In the North Carolina case, the Federal Trade Commission alleged the state dental board’s exclusion of non-dentists from teeth-whitening businesses constituted unfair competition.
The Citizen Advocacy Center, Consumers Union and Center for Public Interest Law at the University of San Diego School of Law sent letters to state AGs asking how they’re adhering to the ruling and requested documented evidence under each state’s public records act.
“The fox has been guarding the chicken coop for too long,” David Swankin, CAC president and CEO, said in a statement. “The decision exposes the conflict of interest inherent in the current way we regulate many professions and occupations.”
“Hopefully the fallout will be to cause licensing boards and state governments to re-examine and reform how they do business,” Swankin continued.
The public interest group suggests agency composition be changed to include mostly “non-conflicted ‘public members’” or else another “state supervision mechanism” be put in place.
State agencies unsupervised by state officials can no longer engage in anticompetitive behavior without risking criminal charges or civil suits, and decisions about who may practice and supply control will be met with more scrutiny.
“We do not dispute the value of expertise and contribution from an industry, but they do not properly control their own regulation and take over the entire public function, as they have,” USD Law professor Robert Fellmeth said in a statement. “In fact, we have not just a naked king nobody will acknowledge, but 1,000 of them wearing no clothes—most state level regulation.
“The Supreme Court, in a democracy defending and restoring decision, has unclothed them all.”
Read the public interest groups' letter to the AGs here.
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