Notice2021-22443
Board of Dental Examiners of Alabama; Analysis of Agreement Containing Consent Order To Aid Public Comment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 14, 2021
Issuing agencies
Federal Trade Commission
Abstract
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order--embodied in the consent agreement--that would settle these allegations.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 196 (Thursday, October 14, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Notices]
[Pages 57145-57147]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22443]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 191 0153]
Board of Dental Examiners of Alabama; Analysis of Agreement
Containing Consent Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
-----------------------------------------------------------------------
SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair methods of competition.
The attached Analysis of Proposed Consent Order to Aid Public Comment
describes both the allegations in the complaint and the terms of the
consent order--embodied in the consent agreement--that would settle
these allegations.
DATES: Comments must be received on or before November 15, 2021.
ADDRESSES: Interested parties may file comments online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write: ``Alabama Board
of Dental Examiners; File No. 191 0153'' on your comment, and file your
comment online at <a href="http://www.regulations.gov">www.regulations.gov</a> by following the instructions on
the web-based form. If you prefer to file your comment on paper, please
mail your comment to the following address: Federal Trade Commission,
Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610
(Annex D), Washington, DC 20580; or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Philip Kehl (202-326-2559), Bureau of
Competition, Federal Trade Commission, 600 Pennsylvania Avenue NW,
Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned consent agreement
containing a consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of thirty (30) days. The
following Analysis of Agreement Containing Consent Order to Aid Public
Comment describes the terms of the consent agreement and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC website at
this web address: <a href="https://www.ftc.gov/news-events/commission-actions">https://www.ftc.gov/news-events/commission-actions</a>.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before November 15,
2021. Write ``Alabama Board of Dental Examiners; File No. 191 0153'' on
your comment. Your comment--including your name and your state--will be
placed on the public record of this proceeding, including, to the
extent practicable, on the <a href="http://www.regulations.gov">www.regulations.gov</a> website.
Due to protective actions in response to the COVID-19 pandemic and
the agency's heightened security screening, postal mail addressed to
the Commission will be subject to delay. We strongly encourage you to
submit your comments online through the <a href="http://www.regulations.gov">www.regulations.gov</a> website.
If you prefer to file your comment on paper, write ``Alabama Board
of Dental Examiners; File No. 191 0153'' on your comment and on the
envelope, and mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite
CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024. If possible, submit your paper comment to the
Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible
website at <a href="http://www.regulations.gov">www.regulations.gov</a>, you are solely
[[Page 57146]]
responsible for making sure that your comment does not include any
sensitive or confidential information. In particular, your comment
should not include any sensitive personal information, such as your or
anyone else's Social Security number; date of birth; driver's license
number or other state identification number, or foreign country
equivalent; passport number; financial account number; or credit or
debit card number. You are also solely responsible for making sure your
comment does not include any sensitive health information, such as
medical records or other individually identifiable health information.
In addition, your comment should not include any ``trade secret or any
commercial or financial information which . . . is privileged or
confidential''--as provided by Section 6(f) of the FTC Act, 15 U.S.C.
46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)--including in
particular competitively sensitive information such as costs, sales
statistics, inventories, formulas, patterns, devices, manufacturing
processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request, and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on <a href="http://www.regulations.gov">www.regulations.gov</a>--as legally required by FTC Rule
4.9(b)--we cannot redact or remove your comment from that website,
unless you submit a confidentiality request that meets the requirements
for such treatment under FTC Rule 4.9(c), and the General Counsel
grants that request.
Visit the FTC website at <a href="http://www.ftc.gov">http://www.ftc.gov</a> to read this Notice and
the news release describing this matter. The FTC Act and other laws
that the Commission administers permit the collection of public
comments to consider and use in this proceeding, as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before November 15, 2021. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see <a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.
Analysis of Agreement Containing Consent Order To Aid Public Comment
I. Introduction
The Federal Trade Commission has accepted, subject to final
approval, a consent agreement with the Board of Dental Examiners of
Alabama (the ``Board''). The Board is an Alabama state agency comprised
of six licensed dentists and one licensed dental hygienist. The Board
is charged with administering dental licensing in Alabama and carrying
out the provisions of the Alabama Dental Practice Act.
The consent agreement contains a proposed order addressing
allegations in the proposed complaint that the Board has unreasonably
excluded competition from providers of teledentistry-based teeth
alignment products and services without adequate supervision from
neutral state officials, in violation of Section 5 of the Federal Trade
Commission Act, 15 U.S.C. 45.
The proposed order has been placed on the public record for 30 days
in order to receive comments from interested persons. Comments received
during this period will become part of the public record. After 30
days, the Commission will again review the consent agreement and the
comments received and will decide whether it should withdraw from the
consent agreement and take appropriate action or make the proposed
order final.
The purpose of this analysis is to facilitate public comment on the
proposed order. It is not intended to constitute an official
interpretation of the complaint, the consent agreement, or the proposed
order, or to modify their terms in any way. The consent agreement is
for settlement purposes only and does not constitute an admission by
the Board that the law has been violated as alleged in the complaint or
that the facts alleged in the complaint, other than jurisdictional
facts, are true.
II. Challenged Conduct
This matter involves allegations that the Board unreasonably
impeded competition from new providers of clear aligner therapy in
Alabama. The Board is a state regulatory agency controlled by
practicing, Alabama-licensed dentists.
Braces and clear aligners (removable, fabricated molds) are
treatment options for misalignment or incorrect relation between teeth
(called malocclusion). Many patients are prescribed braces or clear
aligners following a visit to a dentist's or orthodontist's office.
In recent years, several new firms have launched platforms that
facilitate treatment for malocclusion using teledentistry. These firms
typically offer clear aligner therapy at prices substantially below the
prices associated with treatment using braces or clear aligners
supplied by a dentist or orthodontist in a traditional office setting.
To initiate treatment with a clear aligner platform, a prospective
patient may visit a storefront location, where a non-dentist
professional will perform a digital scan of the patient's teeth and
gums to create a 3D image of the patient's mouth. The results of this
intraoral scan are provided to a dentist working remotely, who
determines whether the patient is a candidate for clear aligner
therapy. For reasons of price and convenience, many consumers prefer
clear aligner therapy supplied through a teledentistry model.
After the entry and expansion of clear aligner platforms in
Alabama, in September 2017, the Board voted to amend Alabama
Administrative Code Sec. 270-X-3.10(o)(2). The Board's interpretation
of that amendment, in conjunction with other existing Board
regulations, operates to prohibit non-dentist personnel from taking
intraoral scans without on-site supervision by a dentist. Following a
Board vote, in September 2018, the Board sent SmileDirectClub, LLC
(``SmileDirectClub''), a clear aligner platform, a letter directing
SmileDirectClub to cease and desist from taking intraoral scans without
on-site dentist supervision.
Because of the Board's conduct, consumers in Alabama have been
deprived of full competition for the treatment of malocclusion. For
example, because of the Board's conduct, SmileDirectClub has halted a
planned expansion of storefronts in Alabama.
III. Legal Analysis
Section 5 of the FTC Act prohibits unfair methods of competition,
including concerted action prohibited by Section 1 of the Sherman
Act.\1\ To establish a violation of Section 1, a plaintiff must show
(1) concerted action that (2) unreasonably restrains competition.\2\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 45; see, e.g., FTC v. Cement Inst., 333 U.S. 683,
693-94 (1948).
\2\ 15 U.S.C. 1; see, e.g., National Collegiate Athletic Ass'n
v. Alston, 141 S Ct. 2141, 2151 (2021); Arizona v. Maricopa County
Med. Soc., 457 U.S. 332, 342-43 (1982).
---------------------------------------------------------------------------
State regulatory boards comprised of active market participants can
violate Section 1 by promulgating and
[[Page 57147]]
enforcing rules that harm competition in the industry in which board
members participate.\3\ The Board's rule amendment and cease-and-desist
letter harmed competition by impeding consumer access to a low-cost and
convenient option for the treatment of malocclusion.
---------------------------------------------------------------------------
\3\ See N.C. Bd. of Dental Exam'rs v. FTC, 574 U.S. 494, 510-12
(2015).
---------------------------------------------------------------------------
The state action defense is not applicable here. Active market
participants control the Board. Therefore, for the Board's conduct to
constitute state action, neutral state officials must actively
supervise the Board's conduct. The State's supervision mechanisms must
provide ``realistic assurance that a private party's anticompetitive
conduct promotes state policy, rather than merely the party's
individual interests.'' \4\
---------------------------------------------------------------------------
\4\ Patrick v. Burget, 486 U.S. 94, 101 (1988).
---------------------------------------------------------------------------
Although the Board's rule amendment was reviewed by Alabama's
Legislative Services Agency (``LSA''), that review did not satisfy the
``constant requirements'' of active supervision articulated by the
Supreme Court.\5\ The LSA did not review the substance of the rule
amendment, specifically whether the rule comports with clearly
articulated state policy to displace competition.\6\ Additionally, the
LSA lacked the authority to veto or modify the Board's decisions.\7\
Furthermore, the Board's cease-and-desist letter to SmileDirectClub did
not receive any review by the LSA or any other state officials.
---------------------------------------------------------------------------
\5\ See N.C. Bd. of Dental Exam'rs, 574 U.S. at 515 (``The Court
has identified only a few constant requirements of active
supervision: The supervisor must review the substance of the
anticompetitive decision, not merely the procedures followed to
produce it; the supervisor must have the power to veto or modify
particular decisions to ensure they accord with state policy; and
the mere potential for state supervision is not an adequate
substitute for a decision by the State. Further, the state
supervisor may not itself be an active market participant.'')
(internal citations and quotations omitted).
\6\ Instead, the LSA determined, without explanation, that the
rule amendment ``does not affect competition at all.'' See Exhibit A
to Brief in Support of Motion to Dismiss (Memo to File from Paula M.
Greene, Feb. 12, 2018) at 13, 15, Leeds v. Board of Dental Examiners
of Alabama, No. 2:18-cv-01679, (N.D. Ala. Nov. 21, 2018), ECF No.
33. Because the LSA made this determination, it did not review
whether the rule was made pursuant to a clearly articulated state
policy. See Ala. Code Sec. 41-22-22.1.
\7\ Alabama statutes provide a procedure by which certain Board
action may be reviewed by the Alabama Legislature's Joint Committee
on Administrative Regulation Review. See Ala. Code Sec. 41-22-22.1.
The Joint Committee did not review the actions at issue in this
case.
---------------------------------------------------------------------------
IV. Proposed Order
The proposed order seeks to remedy the Board's anticompetitive
conduct by requiring the Board to cease and desist from requiring on-
site supervision by dentists when non-dentists perform intraoral scans
on prospective patients.
Section II of the proposed order addresses the core of the Board's
anticompetitive conduct. Paragraph II.A. orders the Board to cease and
desist from requiring non-dentists affiliated with clear aligner
platforms to maintain on-site dentist supervision when performing
intraoral scanning. Paragraph II.B. prohibits the Board from impeding
clear aligner platforms, or dental professionals affiliated with clear
aligner platforms, from providing clear aligner therapy through remote
treatment.
Section III requires the Board to provide notice of the proposed
order to Board members and employees, and to certain dentists and clear
aligner platforms. Section IV requires the Board to notify the
Commission of any changes to its rules related to intraoral scanning or
clear aligner platforms. Section IX provides that the Order will
terminate 10 years from the date it is issued.
By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2021-22443 Filed 10-13-21; 8:45 am]
BILLING CODE 6750-01-P
</pre></body>
</html>Indexed from Federal Register on October 14, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.