Both CPAs and non-licensed accountants should keep an eye on a Supreme Court case involving teeth whitening. Why?  Because the outcome may have a major impact on state boards of accountancy and whether they can decide whether, and to what extent, an individual may refer to themselves as an accountant.

The case is North Carolina Board of Dental Examiners v. Federal Trade Commission. Oral argument before the U.S. Supreme Court was held on October 14 on appeal from a decision of the 4th Circuit Court of Appeals finding for the FTC. 

According to the FTC, dentists complained to the board that non-dentists offered teeth whitening services. It should come as no surprise that non-dentists (e.g., kiosks in shopping malls) charge less than dentists for teeth whitening. The board responded by ordering the non-dentists to stop whitening teeth. The FTC found that the board's actions violated the Sherman Antitrust Act because they constituted a "combination" or "conspiracy, in restraint of trade."

Specifically, the FTC found that the board tried to exclude non-dentists from the market for teeth whitening services, and the dentists who sat on the board stood to gain from excluding competitors from that market. If in the preceding sentence one were to substitute "non-CPAs" for non-dentists and "accounting services" for teeth whitening services and then substitute "CPAs who sat on the board" for dentists who sat on the board, the sentence would read as follows, "the board tried to exclude non-CPAs from the market for accounting services, and the CPAs who sat on the board stood to gain from excluding competitors from that market. One could as easily rewrite the sentence to apply to licensing boards for lawyers, engineers, doctors, beauticians, floral designers, and, yes, fortune tellers. It is easy to see the case involves any state licensing board where a majority of the board members belong to the class of individuals whom the board regulates.

In an analysis of the issues written by Eric M. Fraser for a Supreme Court blog (available here), Fraser wrote that "the central question is whether a state may create a licensing board and set it loose, as North Carolina did, or if instead it must actively supervise the board's actions," especially if, as in this case, "the state licensing regimes have the effects of excluding competitors, raising barriers to entry, reducing supply, and raising prices."
 
Fraser attended the oral argument and writes that the Justices seemed "wary of allowing a state to bestow immunity from federal antitrust laws on a group of professionals regulating themselves without supervision from the state," but that "after an hour of argument, however, the precise boundaries of immunity for state agencies remained far from clear." Fraser concludes that, in the end, the Supreme Court will likely side with the FTC against the dentist board, but that the scope of the ruling is unclear.