Anti-trust and occupational licensing: State approaches

9/18/2017

How Are States Responding to NC Dental?

Supreme Court of the United StatesIn North Carolina State Board of Dental Examiners v. FTC the U.S. Supreme Court held that if the majority of state occupational licensing board members are active market participants, the licensing board is subject to federal antitrust laws.

The court ruled that the antitrust immunity afforded to government activity applies to these majority-practitioner licensing boards only if the state government engages in "active supervision" of the board's regulatory decisions to ensure any anti-competitive behavior is in the interest of the state and not just those in the licensed industry.

To comply with this ruling, some states have reorganized occupational licensing boards to have fewer current professionals as members or established stricter oversight authority within a state agency. Other states have sought to create a legal cause of action for potential licensees to bring cases against licensing boards believed to be acting in an anti-competitive manner, against the public interest.   

Below is a summary of attempted action taken by state legislatures and executives to address the antitrust implications of the NC Dental ruling. Unless otherwise noted, all pieces of legislation mentioned have been passed and signed into law in their respective states. 

 

 

STATE LEGISLATION EXECUTIVE ACTION NOTES
Alabama   EO 2015-7  
Alaska   Sunset Commission  
Arizona SB 1437 EO 2017-03  
Arkansas Act 1258    
California   AG opinion 15-402  
Colorado     Boards already subject to supervision by Department of Regulatory Agencies
Connecticut Act 16-185 Sunset Commission  
Delaware   EO 2016-60  
Georgia HB 952    
Hawaii   Sunrise/Sunset Commission Boards already subject to supervision by Professional and Vocational Licensing Division
Idaho   AG opinion 16-01  
Indiana Act 1-2016    
Iowa HSB 138   Proposed by Governor, died in committee
Maine   Sunrise/Sunset Commission  
Maryland   EO 1.1.15.20  
Massachusetts   EO 567  
Michigan   EO 2017-3  
Minnesota   Sunrise/Sunset Commission  
Mississippi HB 1425    
Missouri HB 609   Awaiting action in committee
Montana SB 390    
Nevada AB 353   Died in committee
North Carolina SBz 9   Committee draft, awaiting introduction
North Dakota HCR 3026    
Ohio HB 289   Awaiting committee action
Oklahoma   EO 2016-39  
South Carolina   AG opinion 4.20.16  
Tennessee Pub. Ch. 1053    
Texas   Sunset Commission  
Utah SB 30    
Vermont   Sunrise Commission  
Virginia   Sunrise/Sunset Commission  
Washington   Sunrise Commission  
West Virginia HB 2984   Awaiting committee action
Wisconsin SB 288 Licensing Reform Committee Awaiting committee action

 

Additional Resources