DISCLAIMER: The following is intended as an informational guide for individual dentists and Wisconsin components regarding the application of antitrust laws to dentistry. The information is not intended as legal advice and cannot serve as a substitute for consultation with one’s own attorney.

From individual dentists to professional associations to state dental examining boards, dentistry is coming under the antitrust microscope nationwide.

Generally, antitrust laws focus on maintaining a fair and open marketplace by prohibiting competitors from entering into agreements to fix prices or engage in other anti-competitive conduct. The laws apply to conduct by individuals, partnerships, companies and organizations.

“Recent actions and investigations by the Federal Trade Commission have given a clear indication the administration and Department of Justice are looking more closely at professional associations, including organizations like the Wisconsin Dental Association and its members,” said Charles “Chuck” Jackson, of Michael, Best and Friedrich and WDA attorney in a report to the Board of Trustees at its February 2011 meeting.

FTC actions in North Carolina, Georgia

During the past 12 months, the FTC has taken action against such groups as the North Carolina Board of Dental Examiners for teeth-whitening policies and the Georgia Board of Dentistry for its efforts to require dentist supervision of previously independent dental hygienist practice areas such as applying sealants and fluoride.

The teeth-whitening complaint is currently being contested by the NCBDE before an FTC administrative law judge. The matter is still in the evidentiary/discovery phase. A March 10, 2011 motion by NCBDE counsel sought to preclude involvement by one member of the FTC’s prosecutorial team.

“This kind of preliminary jousting is relatively rare, indicating the parties may be taking this more ‘personally’ than is normal for cases of this type,” Mr. Jackson explains.

Alabama Dental Association investigation

In Alabama, after dental association members at a monthly meeting allegedly discussed ways to curtail expansion of the nonprofit Sarrell Dental Clinic in that state, the University of Alabama–Birmingham terminated a 5-year relationship with the clinic. Sarrell filed a private lawsuit alleging unfair competition, deceptive practices and interference with business relations – claiming their contract with the school was terminated as the result of pressure from alumni dentists.

The FTC followed up on the Sarrell Clinic’s complaint by beginning what it has described as a “nonpublic” investigation into the alleged conduct of the Alabama Dental Association and its members. Given the nature of the investigation, no information on its status is available at the time this article was written.

WDA antitrust statement

Adopted by the WDA House of Delegates, September 2008

It shall be the policy of the Wisconsin Dental Association to be in strict compliance with all Federal and State Anti-Trust laws, rules and regulations.  In order to ensure that the Wisconsin Dental Association and its members comply with anti-trust laws, the following principles will be observed:

  • The Association or any committee, section, chapter, or activity of the Association shall not be used for the purpose of bringing about or attempting to bring about any understanding or agreement, written or oral, formal or informal, expressed or implied, among two or more members or other competitors with regard to prices or terms and conditions of contracts for services or products.  Therefore, discussions and exchanges of information about such topics will not be permitted at Association meetings or other activities.
  • There will be no discussions discouraging or withholding patronage or services from, or encouraging exclusive dealing with any supplier or purchaser or group of suppliers or purchasers of products or services, any actual or potential competitor or group of actual potential competitors or any private or governmental entity.
  • Any discussions of prices or price levels are prohibited.  In addition, 1) no discussion is permitted of cost of operations, supplies, labor or services; 2) allowance for discounts; 3) terms of sale including credit arrangements, and; 4) profit margins and mark ups, provided this limitation shall not extend to discussions of methods of operations, maintenance, and similar matters in which cost or efficiency is merely incidental.
  • There will be no discussions about allocating or dividing geographic or service markets or customers.
  • There will be no discussions about restricting, limiting, prohibiting, or sanctioning advertising or solicitation that is not false, misleading, deceptive, or directly competitive with Association products or services.
  • There will be no discussions about discouraging entry into or competition in any segment of the marketplace.
  • There will be no discussions about whether the practices of any member, actual or potential competitor, or other person are unethical or anti-competitive, unless the discussions or complaints follow the prescribed due process provisions of the Association’s bylaws.
  • Certain activities of the Association and its members are deemed protected from antitrust laws under the First Amendment right to petition government.  The anti-trust exemption for these activities, referred to as the Noerr-Pennington Doctrine, protects ethical and proper actions or discussions by members designed to influence:  1) legislation at the national, state, or local level; 2) regulatory or policy-making activities (as opposed to commercial activities) or a governmental body; or 3) decisions of judicial bodies.  However, the exemption does not protect actions constituting a “sham” to cover anticompetitive conduct.
  • Speakers at committees, educational meetings, or other business meetings of the Association shall be informed that they must comply with the Association’s anti-trust policy in the preparation and the presentation of their remarks.  Meetings will follow a written agenda approved in advance by the Association or its legal counsel.
  • Meetings will follow a written agenda.  Minutes will be prepared after the meeting to provide a concise summary of important matters discussed and actions taken or conclusions reached.

At informal discussions at the site of any Association meeting, all participants are expected to observe the same standards of personal conduct as are required of the Association in its compliance.

It is the policy of this Association that a copy of these Anti-Trust Compliance Policy be given to each officer, director, committee member, official representative of member companies, and Association employees annually and that the same be read, or understood at all meetings of the membership of the Association.

WDA’s proactive efforts

“It has always been WDA policy to be, and to remain, in strict compliance with all federal and state antitrust laws, rules and regulations,” Executive Director Mark Paget notes.

The House of Delegates adopted an Antitrust Statement in 2008 to ensure member dentists and the WDA, its committees, regions, components and activities comply with antitrust law.

This policy addresses all communications, including written, electronic, online, oral, formal or informal, expressed or implied. It has been adopted and included in the WDA Board Manual which is given to every new officer and trustee.

The WDA is committed to providing employees, volunteer leaders, member dentists and dental team members with educational tools to help them avoid antitrust violations.