New Report: State licensing boards continue to ignore Supreme Court’s decade-old antitrust warning

Washington, DC; February 19, 2025: In North Carolina Board of Dental Examiners v. FTC (2015), the U.S. Supreme Court ruled that state professional licensing boards that are mostly made up of industry insiders — so-called “active market participants” — are not automatically immune from federal antitrust law. A decade later, a new report finds that state dental boards remain just as susceptible to antitrust litigation, continuing to operate as industry-controlled entities that suppress competition.

The report, published by Pacific Legal Foundation, finds that despite the Supreme Court’s ruling, nearly all state dental boards still fail to meet the standards set in NC Dental. On average, 85 percent (more than four of every five) of dental board seats across the U.S. are held by licensed dental professionals, with no state taking meaningful steps to reduce the dominance of industry insiders. In some states, industry associations maintain direct control over board nominations, further entrenching their influence.

The report examines how much industry incumbents influence state dental boards and evaluates whether the NC Dental decision has impacted board structure and operations over the past decade. Among the key takeaways:

Key Finding #1: No state has changed its laws to decrease the control of dental boards by active market participants. 

Key Finding #2: Georgia, Michigan, and North Dakota have added more industry members to their boards, while Texas reduced public seats, further entrenching market participants’ control. 

Key Finding #3: Eight states mandate that governors select dental board members solely from lists provided by dental associations, ensuring industry control over nominations. 

“Failing to reform state licensing boards is not just bad policy; it exposes these boards to serious legal risk,” said Joshua Polk, an attorney at Pacific Legal Foundation. “Instead of heeding the Supreme Court’s ruling, states have ignored it and doubled down on anti-competitive practices. It’s time for courts to reaffirm NC Dental and for advocates of economic liberty to demand accountability.” 

With regulatory transparency and competition at stake, this report serves as a call to action for lawmakers, courts, and federal regulators.

Read the full report, “Guardians or Gatekeepers? Industry Capture of Dental Boards 10 Years after NC Dental.”

For media inquiries or to schedule an interview with the authors, please contact media@pacificlegal.org.