Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—SCSupCt: Issuing Regulation Not “Trade or Commerce” Under South Carolina Statute, (Jun 14, 2013)

By Jody Coultas, J.D.

A corporation employing dental hygienists could not state a South Carolina Unfair Trade Practices Act (UTPA) claim against the South Carolina Board of Dentistry for issuing an allegedly unfair regulation restricting unsupervised preventative procedures that hygienists may perform in school settings, the South Carolina Supreme Court has held (Health Promotion Specialists, LLC v. South Carolina Board of Dentistry, June 12, 2013, Beatty, D.).

In 2000, the South Carolina General Assembly amended the Dental Practice Act to impose fewer restrictions on dental hygienists performing preventive dental services in schools. The Board then enacted a regulation concerning the authorization required for certain procedures performed by dental hygienists in school settings. A trial court held that the corporation was not entitled to UTPA protection because the Board was not a "person" under the UTPA or engaged in trade or commerce.

To state a UTPA claim, a party must show an unfair or deceptive act in the conduct of trade or commerce, the act affected the public interest, and a monetary or property loss as a result of the unfair or deceptive act.

Because the Board's action was the promulgation of a regulation, the court found that the action was not undertaken in the course of "trade or commerce." Even if the Board qualified as a person, an issue the court did not rule on, the issuing of the regulation did not involve advertisement, sale, or distribution of services or property within a business context.

The court also held that the Board was immune from tort claims under the South Carolina Tort Claims Act (TCA). The TCA provides that "[t]he State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages.” Whether an entity is entitled to immunity under the TCA, the court looked at whether the Board functioned statewide, whether the Board performed the work of the state, whether the Board was created by the legislature, and whether the Board was subject to local control.

The Board constituted a governmental entity that may invoke the protections of the TCA as it was created by the General Assembly as the statewide regulatory authority for dentists and dental hygienists. The individual members of the Board were also entitled to immunity for actions performed in the course of their official duties for the Board.

The case is No. 2011-200626.

Attorneys: Desa Allen Ballard (Ballard Watson Weissenstein) for Health Promotion Specialists, LLC. Andrew F. Lindemann (Davidson & Lindemann, PA) for South Carolina Board of Dentistry.

Companies: South Carolina Board of Dentistry

Cases: StateUnfairTradePractices SouthCarolinaNews