A decade later, state licensing boards still rig the system—and courts may be next to act
Ten years ago, the U.S. Supreme Court ruled in N.C. State Board of Dental Examiners v. FTC that licensing boards controlled by industry insiders couldn’t operate like an exclusive club for its members’ own financial gain — or they’d face federal antitrust liability. The decision was intended to curb anti-competitive practices and ensure these boards served the public, not just their members. At the time, legal experts believed that the decision would result in an upheaval in how regulatory boards were organized and operated. A decade later, little has changed.
New research published by Pacific Legal Foundation, of which I am a co-author, suggests that many regulatory boards are more controlled by industry insiders than ever. In other words, licensing boards are still controlled by the very professionals they are supposed to regulate.
The result is a tale as old as time. Rather than listening to the public, boards double down on their role as gatekeepers, ensuring they dampen any potential competition. They do this by creating unnecessary barriers to entry, blocking innovation, and keeping prices high. These policies favor established providers over consumer access to and affordability of the regulated services.
The Supreme Court’s ruling was clear: state boards controlled by industry insiders violate antitrust laws unless there is significant state supervision. As the Court put it, antitrust policy does “not authorize the states to abandon markets to the unsupervised control of active market participants.”
In the decade since, most states have done little to implement meaningful oversight beyond designating a government official to rubber stamp all decisions from its regulatory boards. But, as the Court has made clear, this superficial review is insufficient to provide immunity from liability under federal law.
The reality remains that boards are largely run by the same practitioners with a vested interest in limiting competition. These industry insiders are especially harsh on allowing innovative or lower-cost providers. Take the dental industry in particular — the very subject of the N.C. Dental case. A comparison between state dental boards now and those in place at the time of the Court’s opinion reveals how little states have done in response to the Court’s ruling. Zero state dental boards have reduced (link) the percentage of active market participants on their boards. And three states increased the insiders on their boards.
The consequences of this failure to reform are far-reaching. Anti-competitive practices in licensing boards don’t just stifle economic opportunity — they restrict access to care and drive up costs. In the dental industry, for example, this means fewer affordable options for routine care, fewer providers in underserved areas, and continued resistance to new models of service delivery. This stagnation discourages new entrants into the profession, deterring innovation and restricting career opportunities for aspiring practitioners.
As states continue to shirk this responsibility a decade after the Supreme Court’s decision, they also risk inviting antitrust lawsuits that challenge anti-competitive regulatory board behavior.
It’s time for courts and lawmakers to step in. State legislatures should reevaluate how licensing boards are structured and ensure that oversight mechanisms are substantive rather than perfunctory. Congress and federal agencies like the FTC should start scrutinizing states that fail to comply with the Supreme Court’s ruling. Finally, those affected can sue anti-competitive state boards, which — without antitrust immunity —face liability in federal court. The longer states resist making necessary changes, the more consumers and potential professionals will suffer under a system built to protect insiders rather than promote progress. And the more legal risk for state boards.
A decade of inaction has proven that reliance on self-regulation is a failed experiment. Without real accountability and reform, state licensing boards will continue to function as protectionist bodies rather than public servants. The Supreme Court provided the incentive for change — it’s time to follow through.
