¹ SmileDirectClub, https://smiledirectclub.com/why-smile-direct-club/?utm_content=brandhero (last visited Aug. 15, 2021).

² Id.

³ See SmileDirectClub, LLC v. Ga. Bd. of Dentistry, No. 18-cv-02328, 2019 WL 3557892, at *1 (N.D. Ga. May 8, 2019) (“SmileDirect alleges that … subparagraph (3)(aa) makes it virtually impossible for SmileDirect … lawfully to conduct business in Georgia without making costly and prohibitive changes to SmileDirect’s current business model.”).

⁴ See id. at *1–2 (“SmileDirect … asserts claims against the Georgia Board of Dentistry … seeking injunctive relief and damages for violations of 15 U.S.C § 1 … ”); Sulitzer v. Tippins, No. CV 19-8902, 2020 WL 6115197, at *1 (C.D. Cal. Apr. 22, 2020).

⁵ Named for Parker v. Brown, 317 U.S. 341 (1943); for the “state action doctrine” in general, see Earl W. Kintner et al., 10 Federal Antitrust Law § 76 (2019).

⁶ N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 511–12 (2015) (“The Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy … [the] active supervision requirement in order to invoke state-action antitrust immunity.”).

⁷ See Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *5–6; Sulitzer, 2020 WL 6115197, at *1.

⁸ Sherman Act of 1890, 15 U.S.C. § 1.

⁹ See generally Mark Fenwick et al., Regulation Tomorrow: What Happens when Technology Is Faster than the Law?, 6 Am. U. Bus. L. Rev. 561 (2017).

¹⁰ Edward H. Angle, The Latest and Best in Orthodontic Mechanism, 71 Dental Cosmos: A Monthly Record of Dental Science 164 (1929).

¹¹ Henry I. Nahoum, The Vacuum Formed Dental Contour Appliance, 30 N.Y. State Dental J. 385 (1964).

¹² William R. Proffit et al., Contemporary Orthodontics 316 (6th ed. 2018).

¹³ SmileDirectClub, https://smiledirectclub.com/about/ (last visited Nov. 5, 2021).

¹⁴ See SmileDirectClub, LLC v. Jacqueline I. Fulop, D.M.D., P.C., No. 19-CV-9582, 2020 WL 1322838, at *2 (S.D.N.Y. Mar. 19, 2020) (“[SDC] contends that its direct-to-consumer clear aligner treatment ‘has disrupted … traditional, higher-cost orthodontic delivery models … .’”); SmileDirectClub, LLC v. Candid Care Co., 505 F. Supp. 3d 340, 343 (D. Del. 2020) (“[T]he invention claimed by the #522 patent is … . [t]o use the words of [SDC’s] Complaint … a ‘business model,’ … and ‘revolutionary workflow’ … ”).

¹⁵ Invisalign, https://www.invisalign.com/how-invisalign-works (last visited Dec. 26, 2021) (“[H]ow does Invisalign … treatment work? … Step 1[:] meet with your doctor … .”); see Invisalign, https://www.invisalign.com/frequently-asked-questions (last visited Dec. 26, 2021) (“[T]he cost of Invisalign treatment is similar to the cost of braces. Your doctor will determine the cost of your treatment … .”).

¹⁶ But see Invisalign, https://www.invisalign.com/invisalign-cost/how-to-pay-for-invisalign (last visited Dec. 26, 2021) (using the “My Invisalign app” to apply for consumer credit with which to pay the dentist).

¹⁷ The American Association of Orthodontists phrases its concern as for the public welfare, because “[i]n some instances direct-to-consumer orthodontic companies do not involve the in-person evaluation and/or in-person supervision of … treatment by an orthodontist … which could lead to potentially irreversible and expensive damage such as tooth and gum loss, changed bites, and other issues.” Consumer Alert: What You May Be Missing with Direct-to-Consumer Orthodontic Treatment, Am. Ass’n of Orthodontists, http://www.aaoinfo.org/wp-content/uploads/2021/04/AAO-Consumer-Alert-2021.pdf, (last visited Sept. 26, 2021). SDC, however, describes such statements as “nothing more than … unevidenced and misleading attempts by dental trade organizations … to thwart legitimate competition.” Smile Direct Club Issues Statement on Organized Dentistry’s Anti-Competitive Legal Actions, SmileDirectClub (Oct. 4, 2019), https://investors.smiledirectclub.com/node/6526/pdf.

¹⁸ Cf. Mary Anne Bobinski, Law and Power in Health Care: Challenges to Physician Control, 67 Buff. L. Rev. 595, 606 (2019).

¹⁹ See SmileDirectClub, LLC v. Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *1 (“SmileDirectClub … is a dental service organization that provides services to contractually affiliated dentists in Georgia who wish to offer at-home clear teeth aligner treatment … ”).

²⁰ See Bobinski, supra note 18, at 606 (“The doctrine … applies in a majority of states … [and] prohibits corporations from engaging in the practice of medicine by directly employing or otherwise controlling a physician’s practice of medicine.”).

²¹ See, e.g., Galkin v. SmileDirectClub, LLC, No. A-2867-19, 2021 N.J. Super. Unpub. LEXIS 1116, at *2 (N.J. Super. Ct. App. Div. June 11, 2021) (“Leeds [a dentist licensed in New Jersey] is the sole owner of Smile of New Jersey, P.A. (SNJ), a New Jersey company located in Tennessee that places advertisements on behalf of and contracts with dentists in New Jersey, but has no physical office in New Jersey… SDC sources clear aligners … and impression kits … for SNJ.”).

²² Cf. Vicky Nguyen & Lauren Dunn, “Things Didn’t Feel Right”: Some SmileDirectClub Customers Report Health Problems, NBC News (Feb. 18, 2020, 10:49 AM), https://www.nbcnews.com/health/health-news/things-didn-t-feel-right-some-smiledirectclub-customers-report-problems-n1134056 (reporting SDC’s chief legal officer’s statement that “SmileDirectClub’s network of dentists, not the company itself, is responsible for treatment plans”).

²³ See N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 500–01 (2015).

²⁴ See Bobinski, supra note 18, at 600.

²⁵ Id.

²⁶ 129 U.S. 114 (1889).

²⁷ Id. at 123.

²⁸ Id. at 121.

²⁹ Id. at 123.

³⁰ Id. at 122.

³¹ Id. 122-23; see Bobinski, supra note 18, at 603 (“The primary justification for self-regulation is implicit in the Supreme Court’s reasoning in Dent: the complex scientific and practice-oriented aspects of medical practice mean that establishing and applying regulatory standards requires the active involvement of members of the medical profession itself.”).

³² 129 U.S. at 123.

³³ See Bobinski, supra note 18, at 603.

³⁴ Id.

³⁵ Id. at 603-04 (citing Arnold S. Relman, Professional Regulation and the State Medical Boards, 312 New Eng. J. Med. 784, 785 (1985) (“[ T]he medical profession has an implicit contract with the state, which grants it a licensed monopoly and a considerable degree of autonomy in exchange for a commitment to serve patients and maintain its own professional standards.”)).

³⁶ 317 U.S. 111 (1942).

³⁷ 15 U.S.C. § 2.

³⁸ See Spencer Weber Waller, How much of Health Care Antitrust Is Really Antitrust, 48 Loy. U. Chi. L.J. 643, 648 (2017) (citing United States v. E. C. Knight Co., 156 U.S. 1, 16-18 (1895) (holding that manufacturing was intrastate activity not covered by the Sherman Act)); Alexander Volokh, Antitrust Immunity, State Administrative Law, and the Nature of the State, 52 Ariz. St. L.J. 191, 211 (2020) [hereinafter Volokh, Antitrust Immunity and the State] (“Not only would the regulation of … tooth whiteners have been considered beyond Congress’s [constitutional] powers—it wouldn’t even have been subject to the statute in the first place because it wouldn’t have been ‘in restraint of trade or commerce among the several States.’” (quoting 15 U.S.C. § 2)).

³⁹ See Parker, 317 U.S. at 362 (1943) (state regulation of intrastate agriculture is not outside of federal Commerce power even if the regulation’s effect on interstate commerce is “‘indirect’ rather than ‘direct’ … cf. Wickard v. Filburn.”); see also Waller, supra note 38, at 648.

⁴⁰ See Bobinski, supra note 18, at 626–27 (citing Goldfarb v. Va. State Bar, 421 U.S. 773, 786–87 (1975)).

⁴¹ Kintner et al., supra note 5, § 76.2.

⁴² Parker, 317 U.S. at 346, 351 (“[A]n unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.”).

⁴³ See id. at 351 (holding ours “a dual system of government in which, under the Constitution, the states are sovereign,” yet, under the Commerce clause, “Congress may constitutionally subtract from [state] authority”).

⁴⁴ Volokh, Antitrust Immunity and the State, supra note 38, at 210, 212.

⁴⁵ Parker, 317 U.S. at 351 (citing N. Sec. Co. v. United States, 193 U.S. 197, 332, 344–47 (1904)).

⁴⁶ Cf. Patrick v. Burget, 486 U.S. 94, 100 (1988) (physicians on a hospital peer-review committee were not under Oregon’s “active supervision” and consequently were not immune against federal antitrust law).

⁴⁷ Kintner et al., supra note 5, § 76.10 (citing S. Motor Carriers Rate Conf. v. United States, 471 U.S. 48, 56–57 (1985)).

⁴⁸ Kintner et al., supra note 5, § 76.10.

⁴⁹ Parker, 317 U.S. at 351.

⁵⁰ See California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980).

⁵¹ Id. (quoting City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 410 (1978)); see Kintner et al., supra note 5, § 76.10. Some authors distinguish between the state’s own Parker immunity and the “state-action doctrine,” which extends to non-state actors fulfilling both prongs of the Midcal test. E.g., id. at n.159. (“Parker itself only applies to challenges under the antitrust law to conduct of the state or of state officials. The ‘state action’ doctrine, on the other hand, also extends immunity to certain private conduct taken pursuant to state command and supervision.”).

⁵² See Alexandra W. Jabs, Note, North Carolina State Board of Dental Examiners v. FTC: When Will Enough Active State Supervision Be Enough?, 75 Md. L. Rev. Endnotes 44, 57 (2016) (“[T]he Fourth Circuit’s application of Midcal’s active supervision requirement [to the North Carolina board] created a circuit split between it and the Ninth and Fifth Circuits.”); Alexander Volokh, Are the Worst Kinds of Monopolies Immune from Antitrust Law? FTC v. North Carolina Board of Dental Examiners and the State-Action Exemption, 9 NYU J.L. & Liberty 119, 126 (2015) [hereinafter Volokh, The Worst Monopolies] (“[T]he Fourth Circuit’s holding creates a three-way circuit split … ”); Peter C. Carstensen, The Incoherent Justification for Naked Restraints of Competition: What the Dental Self-regulation Cases Tell Us About the Cavities in Antitrust Law, 51 Loy. U. Chi. L.J. 679, 727 (2020) (“Because this decision created a circuit split, the Supreme Court granted review.”).

⁵³ See SmileDirectClub, LLC v. Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *5. (N.D. Ga. May 8, 2019).

⁵⁴ Id. at *6.

⁵⁵ Fed. R. Civ. P. 12(b)(6); see Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *2.

⁵⁶ Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *2.

⁵⁷ See Volokh, Antitrust Immunity and the State, supra note 38, at 194.

⁵⁸ Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *4.

⁵⁹ Id. at *5.

⁶⁰ Id. at *6.

⁶¹ See N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 496 (2015).

⁶² See id. at 501-02; but see Brief for Petitioner at 7, N.C. State Bd., 574 U.S. 494 (No. 13-534), 2014 WL 2212529, at *7 (arguing that tooth whitening was an activity within North Carolina’s dental practice act); see also N.C. State Bd. of Dental Exam’rs v. FTC, 717 F.3d 359, 364 (4th Cir. 2013) (“Under the Dental Practice Act, a person ‘shall be deemed to be practicing dentistry’ if that person … ‘[r]emoves stains, accretions or deposits from the human teeth.’” (quoting N.C. Gen. Stat. § 90-29(b)(2))).

⁶³ See Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *1. Although SDC, in requesting declaratory judgment, claimed that the board exceeded its statutory authority in regulating SDC, a non-dentist, the district court dismissed this claim because “[SDC’s] acts of taking digital scans of a patient’s mouth for the purpose of … correcting a malposition of the patient’s teeth falls squarely within the definition of the practice of dentistry” under the state’s practice act. Id. at *2.

⁶⁴ N.C. State Bd., 574 U.S. at 514.

⁶⁵ Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *5.

⁶⁶ Id. at *2 (quoting Ga. Code Ann. § 43-11-17(a)(5)). The district court itself noted that regulating “‘attempts to correct a malposition’ of the teeth (such as through the use of orthodontic appliances)” is within the Board’s statutory authority. Id. (quoting Ga. Code Ann. § 43-11-17(a)(2)). The court equated dental scans with traditional dental impressions. See id. (“[D]igital scans of a patient’s mouth for … correcting a malposition of the patient’s teeth [are] squarely within … the practice of dentistry.”).

⁶⁷ N.C. State Bd., 574 U.S. at 504 (quoting California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 97, 105).

⁶⁸ 486 U.S. 94 (1988).

⁶⁹ See id. at 101.

⁷⁰ Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *5.

⁷¹ Id.

⁷² N.C. State Bd., 574 U.S. at 515.

⁷³ See id.

⁷⁴ Ga. Code Ann. § 43-1C-3(a)(1) (2022).

⁷⁵ N.C. State Bd., 574 U.S. at 500–01, 504 (2015) (the Midcal test, which the North Carolina Board failed on the active supervision prong, was triggered in the first place because “[w]hile North Carolina prohibits the unauthorized practice of dentistry … its Act is silent on whether that … prohibition covers teeth whitening,” such that the board needed “active supervision by the state when it interpreted the act as addressing teeth whitening”); cf. Defendants’ Motion To Dismiss Complaint (Fed. R. Civ. P. 12(b)(6)) at 15, Sulitzer, No. CV 19-8902 (C.D. Cal. Mar. 2, 2020) [hereinafter Tentative Ruling, Sulitzer, No. CV 19-8902] (finding an SDC antitrust suit against California regulators failed to state a claim even absent active supervision). Silence of a practice act on whether a specific service is within dental practice is not to be confused with a state’s clearly articulated policy, read broadly, in favor of restricting competition in the dental field, which is a function of the state having a dental practice act in the first place. See N.C. State Bd., 574 U.S. at 504.

⁷⁶ See Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *4.

⁷⁷ SDC’s complaint alleged an “agreement among [the Board members] expressly stated in [the new regulation,] Subparagraph (aa) of Rule 150-9-.02(3),” as “evidence of concerted action” taken to “exclud[e] non-dentists from providing digital scans without the direct supervision of dentists, thereby harming competition in the Relevant Market.” Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *4 (emphasis added). The logical leap SDC’s complaint makes, describing the Board’s vote to pass the new regulation as evidence of conspiracy, amounts to mere speculation, which the district court should have dismissed on its own understanding of the Federal Rules of Civil Procedure. See id. at *2 (setting as the “Legal Standard” for a complaint to survive a Rule 12(b)(6) motion that “[t]he complaint must ‘raise a right to relief above the speculative level’” (quoting Renfroe v. Nationstar Mortg. LLC, 822 F.3d 1241, 1244 (11th Cir. 2016) (quoting Twombly, 550 U.S. at 555))).

⁷⁸ Cf. Ga. Bd., 2019 WL 3557892, at *4; see Parker v. Brown, 317 U.S. 341, 352 (1943) (because “the Sherman Act … must be taken to be a prohibition of individual and not state action,” therefore state actions restraining competition are not equated with “conspiracy in restraint of trade,” but are instead “restraint[s] as … act[s] of government which the Sherman Act did not undertake to prohibit”).

⁷⁹ Cf. id. (state actions are not “conspiracy” under the Sherman Act); see N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 500–01, 504 (2015) (North Carolina’s board did not qualify for Parker immunity without active supervision, only because the regulatory undertaking in question was outside the state’s practice act).

⁸⁰ Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *5–6.

⁸¹ Id. at *5.

⁸² Id. (quoting Blue Martini Kendall, LLC v. Miami Dade County, 816 F.3d 1343, 1351 (11th Cir. 2016)).

⁸³ Id. at *2.

⁸⁴ Id. at *5.

⁸⁵ See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S 483, 491 (1955) (because a law banning eye examinations within a “retail store” might be rationally related to a “legislative program which aims to raise the treatment of the human eye to a strictly professional level,” therefore “[w]e cannot say that the regulation … is beyond constitutional bounds.” (citing Semler v. Or. State Bd. of Dental Exam’rs, 294 U.S. 608, 611 (1935) (“[T]he state may deny to corporations the right to practice [dentistry] … ”))).

⁸⁶ See Blue Martini, 816 F.3d at 1351 (“A state is under no obligation to produce evidence supporting the rationality of the legislation and … need not even have actually been motivated by the rational reason presented to the court … .”) (citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314–15 (1993)).

⁸⁷ The district court might have been concerned that SDC’s allegation—of a regulation “designed” merely to protect entrenched business interests—possibly could be true, the court noting that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.” Ga. Bd., 2019 WL 3557892, at *6 (quoting Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002)). Even if this concern were well-founded, however, it is not relevant to a review of this regulation, which passes a rational basis inquiry because, as the district court did not deny, the regulation reasonably addresses the legitimate government interest in public safety. See Williams v. Pryor, 240 F.3d 944, 948 (11th Cir. 2001) (“[I]t is entirely irrelevant for constitutional purposes whether the conceived reason … actually motivated the legislature … .”) (quoting Beach Commc’ns, 508 U.S. at 315).

⁸⁸ See Williams, 240 F.3d at 948 (“[A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” (quoting Beach Commc’ns, 508 U.S. at 315)); see also Tentative Ruling, Sulitzer, No. CV 19-8902 at 22 (“Plaintiffs’ mere ‘speculative and conclusory’ no-legitimate-purpose allegation does not automatically make their claim viable.” (citing Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1209–10 (9th Cir. 2005)).

⁸⁹ See Ga. Bd., No. 18-cv-02328, 2019 WL 3557892, at *5 (citing Blue Martini, 816 F.3d at 1351).

⁹⁰ Id. (quoting Blue Martini, 816 F.3d at1351); Blue Martini, 816 F.3d at 1350 (rational basis review is the proper level of scrutiny for regulations neither “discriminat[ing] against a protected class, nor … implicat[ing] any fundamental constitutional right”). As the Northern District of Georgia found regarding the Board’s authority, “taking digital scans of a patient’s mouth for the purpose of having a dentist … approve of a treatment plan for correcting a malposition of the … teeth falls squarely within the definition of the practice of dentistry as set forth in” the Practice Act. Id. at *2. The court should have found such regulation rationally related to protecting the health and safety of patients from unsupervised dental practice, without recourse to further fact-finding on SDC’s allegation that the scanning procedure itself, in isolation, “present[s] no health or safety risk.” See id. at *6; Williams, 240 F.3d at 948 (the state “must be allowed leeway to approach a perceived problem incrementally,” even if the approach it chooses tends to over-regulate within the legitimate scope of authority (quoting Beach Commc’ns, 508 U.S. at 316)).

⁹¹ Instead of taking at face value the regulation’s classification based on professional licensure status—and its equal application across the dental industry—the district court instead accepted SDC’s allegation that the regulation distinguishes “persons or entities who offer digital scans by [unsupervised] technicians (such as SmileDirect) [from] those who offer digital scans by expanded duty dental assistants acting under the direct supervision of a licensed dentist.” Ga. Bd., 2019 WL 3557892, at *5.

⁹² Id. at *2.

⁹³ Id. (quoting Ga. Code Ann. § 43-11-17(a)(5) (2022)).

⁹⁴ See Williams, 240 F.3d at 948 (quoting Beach Commc’ns, 508 U.S. at 315).

⁹⁵ See id.

⁹⁶ Cal. Bus. & Prof. Code §§ 1800–08 (Deering 2021). For the corporate practice of medicine doctrine, see supra notes 20–21 and accompanying text.

⁹⁷ Tentative Ruling, Sulitzer, No. CV 19-8902, at 1–2.

⁹⁸ Id. at 2–3.

⁹⁹ Id. at 1–2.

¹⁰⁰ Id. at 1.

¹⁰¹ Tentative Ruling, Sulitzer, No. CV 19-8902, at 1 C.D. Cal. Apr. 22, 2020) (dismissing federal claims and declining jurisdiction over state claim).

¹⁰² Tentative Ruling, Sulitzer, No. CV 19-8902, at 13–16.

¹⁰³ Id. at 20 –22. The district court dismissed the Dormant Commerce Clause claim since the Board’s “actions here clearly do not discriminate against out-of-state conduct.” Hearing on Defendants’ Motion To Dismiss Complaint at 3–5, Sulitzer, No. CV 19-8902 (C.D. Cal. Mar. 2, 2020) (hearing via telephone).

¹⁰⁴ Bd. of Dental Examiners v. FTC, 519 F. Supp. 3d 1033 (N.D. Ala. 2021).

¹⁰⁵ Id. at 1036.

¹⁰⁶ Id.

¹⁰⁷ Id.

¹⁰⁸ Id. at 1039. The statute makes only “final agency actions,” but not investigations, “subject to judicial review.” See 5 U.S.C. § 704.

¹⁰⁹ A critic of professional self-regulation notes that North Carolina Board does not itself resolve the conflict between state boards and federal antitrust law. Compare Volokh, The Worst Monopolies, supra note 52, at 136 (“[A]ny doctrine [like Parker] that privileges government action through extra immunities should be viewed with skepticism and limited as far as possible – especially where, as [in the case of a state professional board], the government action involved is monopolization of the most pernicious kind.”), with Volokh, Antitrust Immunity and the State, supra note 38, at 196 (“[W]hether [North Carolina Board] makes a difference depends on how the courts apply it going forward … . In particular, the lower courts are now dealing with … what constitutes ‘active supervision.’”).

¹¹⁰ See Charles M. Key, Preserving Competition in the Context of Professional Self-regulation; North Carolina State Board of Dental Examiners v. FTC, 27 Health. Law. 42, 46 (2015) (“[North Carolina Board] again demonstrates that the antitrust laws … will be applied consistently to protect competition among professionals and within the healthcare industry, just as in the rest of the nation’s economy.”); Carstensen, supra note 52, at 699–700, 730, 741 (North Carolina Board fits the author’s existing explanatory framework for how courts implicitly decide whether to apply antitrust exemptions like state-action immunity).

¹¹¹ See Jeffrey P. Gray, In Defense of Occupational Licensing: A Legal Practitioner’s Perspective, 43 Campbell L. Rev. 423, 445 (2021) (“[North Carolina Board] did not go so far as to define … what state involvement was needed, writing, ‘It suffices to note that the inquiry regarding active supervision is flexible and context dependent.’”); see also Jabs, supra note 52, at 64 (“[T]he Court could not delineate a clear standard for active supervision… . because the Board did not contend that it had active state supervision over its mailing of cease-and-desist letters.”); see also Richard F. Walker III, Cavity Filling or Root Canal? How Courts Should Apply North Carolina State Board of Dental Examiners v. FTC, 66 Emory L. J. 443, 447 (2017) (“[I]t remains to be seen how expansively the FTC and lower courts will apply the decision.”); cf. William M. Sage & David A. Hyman, Antitrust as Disruptive Innovation in Health Care: Can Limiting State Action Immunity Help Save a Trillion Dollars?, 48 Loy. U. Chi. L.J. 723, 737 (2017) (“[T]he Court did not specify the exact meaning of ‘active supervision’ … nor did it definitively resolve the dental board’s legal status as public or private.”); cf. Volokh, Antitrust Immunity and the State, supra note 38, at 196.

¹¹² Some writers advocate that states create actively supervisory “review commissions.” See Jabs, supra note 52, at 72; Key, supra note 110, at 43 & nn.19–20.

¹¹³ See supra notes 75–77, 79 and accompanying text.

¹¹⁴ Cf. Carstensen, supra note 52, at 730, 741 (“active supervision” is but a way to demonstrate a board’s adherence to the state’s “appropriate process”).

¹¹⁵ See, e.g., Sage & Hyman, supra note 111, at 728 (“[O]nce one begins to see the affordability of high-quality professional services as an intrinsic … challenge, the use of antitrust law to constrain self-interest, reduce waste, and enhance consumer choice becomes much more attractive. This is particularly true for our health care system, which wastes approximately $1 trillion every year on overpriced, unnecessary, and ineffective services.”).

¹¹⁶ See Gray, supra note 111, at 475 (“[T]he licensing naysayers may be correct with their various economic theories … but if truth be known the American public may just want their government to protect them regardless.”); Theodosia Stavroulaki, Connecting the Dots: Quality, Antitrust, and Medicine, 31 Loy. Consumer L. Rev. 175, 180 (2019) (“Since opportunistic behavior by physicians harms patients’ trust in their physicians and generates anxieties harmful to the medical enterprise, there is good reason to consider whether a principled basis in competition law for deeming such claims compatible with a competitive regime is necessary.”).

¹¹⁷ See Stavroulaki, supra note 116, at 223 (“[B]ehavioral economics research indicat[es] that human beings in general and patients in particular do not necessarily … make the decisions that serve their interests.”); Gray, supra note 111, at 454–55 (“[A] world without licensing would be frightening … because consumers need protecting.”).

¹¹⁸ See Stavroulaki, supra note 116, at 181–83 (in a truly free market for healthcare, information asymmetry means that patients cannot distinguish poor-quality providers from good-quality providers, therefore cost-cutting and low quality are economically incentivized) (citing George A. Akerlof, The Market for “Lemons”: Quality, Uncertainty and the Market Mechanism, 84 Q.J. ECON., 488, 489 (1970)).

¹¹⁹ See Nguyen & Dunn, supra note 22 (“If customers can show the treatment didn’t work and want a refund outside the return window, SmileDirectClub requires they sign a confidentiality agreement, raising the possibility that there may be more complaints than have been made public.”).

¹²⁰ See id. (“[O]f the complaints [about SDC to the Better Business Bureau] … dozens describe concerns about treatment results … like broken teeth and nerve damage.”).

¹²¹ See Tentative Ruling, Sulitzer, No. CV 19-8902 at 22 (“[T]he ‘silence’ that [SDC] perceives with respect to whether California law actually prohibits what they are engaged in here is a fact that … supports their argument against state-action immunity in connection with their Sherman Act claim. But the Court does not perceive how it helps them in connection with their substantive due process claim.” (citation omitted)).

¹²² See Stavroulaki, supra note 116, at 183 (“[I]f competition authorities have to decide whether a specific form of self-regulation … is pro- or anti- competitive, they should … weigh harm to competition against quality improvements.”).

¹²³ Dent v. West Virginia, 129 U.S. 114, 123 (1889).

¹²⁴ See, e.g., cases cited supra note 14.