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State Board Report

March 2016

Licensing problems for D.C. tour guides, the Supreme Court’s decision in the North Carolina Dental Board case and the merits of certification over occupational licensing were all part of the presentations made at the February 2, 2015 hearing held by the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, chaired by Senators Mike Lee (R-UT) and Amy Klobuchar (D-MN). Entitled: "License to Compete: Occupational Licensing and the State Action Doctrine," the session included testimony from Commissioner Maureen K. Ohlhausen of the Federal Trade Commission (FTC), State of Wisconsin Solicitor General Misha Tseytlin, University of Minnesota Professor Morris Kleiner, Council of Economic Advisers (CEA) Chairman Jason Furman and Institute for Justice (IJ) Attorney Robert Everett Johnson. NASBA Legislative and Governmental Affairs Director John Johnson has been summarizing this hearing for the NASBA Regional conference calls.

"After North Carolina Dental [North Carolina Board of Dental Examiners v. FTC, 135 S.Ct. 1101 (2015)] licensing boards may continue to regulate professionals in their respective states and be exempt from antitrust laws, so long as they act pursuant to a clearly articulated state policy and, if they are controlled by market participants, under active supervision by the state," FTC Commissioner Ohlhausen told the subcommittee. She pointed to the October 2015 FTC staff issued guidance on how states can satisfy the "active supervision" requirement. "A one size-fits-all approach to active supervision is neither possible nor warranted. Moreover, deviation from this guidance does not necessarily mean that the state action defense is inapplicable. Or that a violation of the antitrust laws occurred," the Commissioner stated.

CEA Chairman Furman said the Council of State Governments estimates there are over 1,100 occupations that are licensed, certified or registered in at least one state, but fewer than 60 regulated in all states.

Robert Everett Johnson, an attorney for the Institute for Justice, a public interest group that opposes occupational licensing, told the February 2 hearing "Even where proponents of licensing identify legitimate health and safety concerns, those concerns frequently can be addressed through less restrictive alternatives to licensure – including voluntary certification regimes."

The Subcommittee will next hold a hearing on "Oversight of Antitrust Laws" on March 9.

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