DAYSPA is the magazine of spa management. Spa owners and spa managers turn to DAYSPA for spa management trends, spa management tips and more.
Issue link: https://dayspamagazine.epubxp.com/i/311523
dayspamagazine.com | JUNE 2014 111 potential nationwide effect. Such a ruling could trump regulations established by some of the states—the very ones that the dentists have spent so much time lobby- ing. The decision was challenged in court by the Board of Dental Examiners, but to no avail: the U.S. Court of Appeals for the Fourth District agreed with the original ruling. That left the dentists with one alternative: to ap- peal to the court of last resort, the U.S. Supreme Court. A person appeals to the Supreme Court by fi ling a writ of certiorari, Latin for "to be informed of". About 7,000 writs are fi led with the Supreme Court each year but only about 80 cases are taken for oral argument. Of these, some 50 are decided without any hearing at all. About two-thirds of the cases that the Supreme Court agrees to hear are on appeal from the Federal Circuit Courts, like the dentists' case above. About one-third is heard on appeal from the State Supreme Courts. (If two states get into a disagreement, the Su- preme Court hears those cases directly without any state or lower federal court case having been argued.) It stands to reason that if you get your case before the Supreme Court, it's considered a pretty important is- sue. Why did the Court agree to take the dentists' case? The FTC said the North Carolina Board of Dental Exam- iners was trying to restrain trade in violation of federal anti-trust laws because they were attempting to prevent non-dental professionals from distributing and using teeth-whitening products. However, there's an exception to the anti-trust laws for state and local governments: those entities can engage in certain types of governmen- tal action that would tend to restrain trade for purposes of ensuring public health and safety. This exception to the anti-trust laws is called the State Action exception. The North Carolina Board of Dental Examiners stated that it is a regulatory arm of the State of North Carolina (true) and as such, should be exempt from anti-trust law under the State Action exemption. However, awhile back somebody fi gured out how the game was being played and realized that so-called governmental bod- ies like the North Carolina Board of Dental Examiners were, in effect, functioning as self-interested parties for the dental profession. When an arm of government is populated by people who practice within the profession they are supposed to regulate—and those people engage in anticompetitive practices to protect their own income—they are no longer acting as a governmental regulatory body. Rather, they become more like a private organization with a dayspamagazine.com/freeinfo • Use FreeInfo #42 L e g a l P a d . i n d d 1 1 1 Legal Pad.indd 111 5 / 1 / 1 4 3 : 4 8 P M 5/1/14 3:48 PM