OCTOBER TERM, 1998
Syllabus
CALIFORNIA DENTAL ASSOCIATION
v. FEDERAL TRADE
COMMISSION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 97-1625. Argued January 13, 1999-Decided May 24,1999
Petitioner California Dental Association (CDA), a nonprofit
association of local dental societies to which about three-quarters
of the State's dentists belong, provides desirable insurance and
preferential financing arrangements for its members, and engages in
lobbying, litigation, marketing, and public relations for members'
benefit. Members agree to abide by the CDA's Code of Ethics, which,
inter alia, prohibits false or misleading advertising. The
CDA has issued interpretive advisory opinions and guidelines
relating to advertising. Respondent Federal Trade Commission
brought a complaint, alleging that the CDA violated § 5 of the
Federal Trade Commission Act (Act), 15 U. S. C. § 45, in applying
its guidelines so as to restrict two types of truthful,
nondeceptive advertising: price advertising, particularly
discounted fees, and advertising relating to the quality of dental
services. An Administrative Law Judge (ALJ) held the Commission to
have jurisdiction over the CDA and found a § 5 violation. As
relevant here, the Commission held that the advertising
restrictions violated the Act under an abbreviated rule-of-reason
analysis. In affirming, the Ninth Circuit sustained the
Commission's jurisdiction and concluded that an abbreviated or
"quick look" rule-of- reason analysis was proper in this case.
Held:
1. The Commission's jurisdiction extends to an association that,
like the CDA, provides substantial economic benefit to its
for-profit members. The Act gives the Commission authority over a
"corporatio[n]," 15 U. S. C. § 45(a)(2), "organized to carryon
business for its own profit or that of its members," § 44. The
Commission's claim that the Act gives it jurisdiction over
nonprofit associations whose activities provide substantial
economic benefits to their for-profit members is clearly the better
reading of the Act, which does not require that a supporting
organization must devote itself entirely to its members' profits or
say anything about how much of the entity's activities must go to
raising the members' bottom lines. There is thus no apparent reason
to let the Act's application turn on meeting some threshold
percentage of activity for this purpose or even a softer
formulation calling for a substantial part of the entity's total
activities to be aimed at its members' pecuniary
757
benefit. The Act does not cover all membership organizations of
profit-making corporations without more. However, the economic
benefits conferred upon CDA's profit-seeking professionals plainly
fall within the object of enhancing its members' "profit," which is
the Act's jurisdictional touchstone. The Act's logic and purpose
comport with this result, and its legislative history is not
inconsistent with this interpretation. Pp.765-769.
2. Where any anti competitive effects of given restraints are
far from intuitively obvious, the rule of reason demands a more
thorough enquiry into the consequences of those restraints than the
abbreviated analysis the Ninth Circuit performed in this case.
Pp.769-781.
(a) An abbreviated or "quick-look" analysis is appropriate when
an observer with even a rudimentary understanding of economics
could conclude that the arrangements in question have an
anticompetitive effect on customers and markets. See,
e. g.,
National Collegiate Athletic Assn. v.
Board of Regents of
Univ. of Okla., 468 U. S. 85. This case
fails to present a situation in which the likelihood of
anticompetitive effects is comparably obvious, for the CDA's
advertising restrictions might plausibly be thought to have a net
procompetitive effect or possibly no effect at all on competition.
Pp. 769-771.
(b) The discount and nondiscount advertising restrictions are,
on their face, designed to avoid false or deceptive advertising in
a market characterized by striking disparities between the
information available to the professional and the patient. The
existence of significant challenges to informed decisionmaking by
the customer for professional services suggests that advertising
restrictions arguably protecting patients from misleading or
irrelevant advertising call for more than cursory treatment. In
applying cursory review, the Ninth Circuit brushed over the
professional context and described no anticompetitive effects from
the discount advertising bar. The CDA's price advertising rule
appears to reflect the prediction that any costs to competition
associated with eliminating across-the-board advertising will be
outweighed by gains to consumer information created by discount
advertising that is exact, accurate, and more easily verifiable.
This view mayor may not be correct, but it is not implausible; and
neither a court nor the Commission may initially dismiss it as
presumptively wrong. The CDA's plausible explanation for its
nonprice advertising restrictions, namely that restricting
unverifiable quality claims would have a procompetitive effect by
preventing misleading or false claims that distort the market,
likewise rules out the Ninth Circuit's use of abbreviated
rule-of-reason analysis for those restrictions. The obvious anti
competitive effect that triggers such analysis has not been shown.
Pp. 771-778.
758
Syllabus
(c) Saying that the Ninth Circuit's conclusion required a more
extended examination of the possible factual underpinnings than it
received is not necessarily to call for the fullest market
analysis. Not every case attacking a restraint not obviously
anticompetitive is a candidate for plenary market examination.
There is generally no categorical line between restraints giving
rise to an intuitively obvious inference of anti competitive effect
and those that call for more detailed treatment. What is required
is an enquiry meet for the case, looking to a restraint's
circumstances, details, and logic. Here, a less quick look was
required for the initial assessment of the CDA's advertising
restrictions. Pp. 779-781.
128 F.3d
720, vacated and remanded.
SOUTER, J., delivered the opinion for a unanimous Court with
respect to Parts I and II, and the opinion of the Court with
respect to Part III, in which REHNQUIST, C. J., and O'CONNOR,
SCALIA, and THOMAS, JJ., joined. BREYER, J., filed an opinion
concurring in part and dissenting in part, in which STEVENS,
KENNEDY, and GINSBURG, JJ., joined,
post, p. 781.
Peter M. Sfikas argued the cause for petitioner. With him on the
briefs were Scott M. Mendel, Erik F. Dyhrkopp, and Edward M.
Graham.
Deputy Solicitor General Wallace argued the cause for
respondent. With him on the brief were Solicitor General Waxman,
Assistant Attorney General Klein, Paul R. Q. Wolfson, Debra A.
Valentine, John F. Daly, Joanne L. Levine, and Elizabeth R.
Hilder.*
*Briefs of amici curiae urging reversal were filed for the
American College for Advancement in Medicine by Elizabeth Toni
Guarino, William C. MacLeod, and Robert A. Skitol; for the American
Dental Association et al. by Jack R. Bierig and Virginia A. Seitz;
for the American Society of Association Executives by Jerry A.
Jacobs, Paul M. Smith, and Nory Miller; and for the National
Collegiate Athletic Association by Roy T. Englert, Jr., Donald M.
Falk, Gregory L. Curtner, Stephen M. Shapiro, Michael W McConnell,
Michele L. Odorizzi, and Elsa Kircher Cole.
A brief of
amici curiae urging affirmance was filed for
the State of Arizona et al. by
James E. Ryan, Attorney
General of Illinois,
Don R. Sampen, Assistant Attorney
General,
Betty D. Montgomery, Attorney General of Ohio, and
Thomas G.
Lindgren, Assistant Attorney General, and
by the Attorneys General for their respective jurisdictions as
follows:
Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E.
Lungren
759
JUSTICE SOUTER delivered the opinion of the Court. There are two
issues in this case: whether the jurisdiction of the Federal Trade
Commission extends to the California Dental Association (CDA), a
nonprofit professional association, and whether a "quick look"
sufficed to justify finding that certain advertising restrictions
adopted by the CDA violated the antitrust laws. We hold that the
Commission's jurisdiction under the Federal Trade Commission Act
(FTC Act) extends to an association that, like the CDA, provides
substantial economic benefit to its for-profit members, but that
where, as here, any anticompetitive effects of given restraints are
far from intuitively obvious, the rule of reason demands a more
thorough enquiry into the consequences of those restraints than the
Court of Appeals performed.
I
The CDA is a voluntary nonprofit association of local dental
societies to which some 19,000 dentists belong, including about
three-quarters of those practicing in the State.
In re
California Dental Assn., 121 F. T. C. 190, 196-197 (1996). The CDA
is exempt from federal income tax under 26 U. S. C. § 501(c)(6),
covering "[b]usiness leagues, chambers
of California, Richard Blumenthal of Connecticut, M. Jane Brady
of Delaware, Robert A. Butterworth of Florida, Alan G. Lance of
Idaho, Thomas J. Miller of Iowa, J. Joseph Curran, Jr., of
Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of
Minnesota, Mike Moore of Mississippi, Frankie Sue Del Papa of
Nevada, Philip T. McLaughlin of New Hampshire, Michael F. Easley of
North Carolina, W A. Drew Edmondson of Oklahoma, Hardy Myers of
Oregon, D. Michael Fisher of Pennsylvania, Jose A. Fuentes-Agostini
of Puerto Rico, Jeffrey B. Pine of Rhode Island, John Knox Walkup
of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont,
Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of
West Virginia, and James E. Doyle of Wisconsin.
James S.
Turner and
Betsy E. Lehrfeld filed
a brief for the Consumer Dental Choice Project of the National
Institute for Science, Law and Public Policy, Inc., as
amicus
curiae.
760
of commerce, real-estate boards, [and] boards of trade,"
although it has for-profit subsidiaries that give its members
advantageous access to various sorts of insurance, including
liability coverage, and to financing for their real estate,
equipment, cars, and patients' bills. The CDA lobbies and litigates
in its members' interests, and conducts marketing and public
relations campaigns for their benefit.
128 F.3d
720, 723 (CA9 1997).
The dentists who belong to the CDA through these associations
agree to abide by a Code of Ethics (Code) including the following §
10:
"Although any dentist may advertise, no dentist shall advertise
or solicit patients in any form of communication in a manner that
is false or misleading in any material respect. In order to
properly serve the public, dentists should represent themselves in
a manner that contributes to the esteem of the public. Dentists
should not misrepresent their training and competence in any way
that would be false or misleading in any material respect." App.
33.
The CDA has issued a number of advisory opinions interpreting
this section,l and through separate advertising
1 The advisory opinions, which substantially mirror parts of the
California Business and Professions Code, see Cal. Bus. & Prof.
Code Ann. §§ 651, 1680 (West 1999), include the following
propositions:
"A statement or claim is false or misleading in any material
respect when it:
"a. contains a misrepresentation of fact;
"b. is likely to mislead or deceive because in context it makes
only a partial disclosure of relevant facts;
"c. is intended or is likely to create false or unjustified
expectations of favorable results and/or costs;
"d. relates to fees for specific types of services without fully
and specifically disclosing all variables and other relevant
factors;
761
guidelines intended to help members comply with the Code and
with state law the CDA has advised its dentists of disclosures they
must make under state law when engaging in discount
advertising.2
Responsibility for enforcing the Code rests in the first
instance with the local dental societies, to which applicants for
CDA membership must submit copies of their own advertisements and
those of their employers or referral services to assure compliance
with the Code. The local societies also actively seek information
about potential Code violations by applicants or CDA members.
Applicants who refuse to withdraw or revise objectionable
advertisements may be denied membership; and members who, after a
hearing, remain
"e. contains other representations or implications that in
reasonable probability will cause an ordinarily prudent person to
misunderstand or be deceived.
"Any communication or advertisement which refers to the cost of
dental services shall be exact, without omissions, and shall make
each service clearly identifiable, without the use of such phrases
as 'as low as,' 'and up,' 'lowest prices,' or words or phrases of
similar import.
"Any advertisement which refers to the cost of dental services
and uses words of comparison or relativity-for example, 'low
fees'-must be based on verifiable data substantiating the
comparison or statement of relativity. The burden shall be on the
dentist who advertises in such terms to establish the accuracy of
the comparison or statement of relativity."
"Advertising claims as to the quality of services are not
susceptible to measurement or verification; accordingly, such
claims are likely to be false or misleading in any material
respect."
128 F.3d
720, 723-724 (CA9 1997) (some internal quotation marks
omitted).
2 The disclosures include:
"1. The dollar amount of the nondiscounted fee for the
service[.]
"2. Either the dollar amount of the discount fee or the
percentage of
the discount for the specific service[.]
"3. The length of time that the discount will be offered[.] "4.
Verifiable fees[.]
"5. [The identity of] [s]pecific groups who qualify for the
discount or any other terms and conditions or restrictions for
qualifying for the discount."
Id., at 724.
762
similarly recalcitrant are subject to censure, suspension, or
expulsion from the
CDA. 128 F. 3d, at 724.
The Commission brought a complaint against the
CDA,
alleging that it applied its guidelines so as to restrict truthful,
non deceptive advertising, and so violated § 5 of the FTC Act, 38
Stat. 717, 15 U. S. C. § 45.3 The complaint alleged that the
CDA had unreasonably restricted two types of advertising:
price advertising, particularly discounted fees, and advertising
relating to the quality of dental services. Complaint ~ 7. An
Administrative Law Judge (ALJ) held the Commission to have
jurisdiction over the
CDA, which, the ALJ noted, had itself
"stated that a selection of its programs and services has a
potential value to members of between $22,739 and $65,127," 121 F.
T. C., at 207. He found that, although there had been no proof that
the
CDA exerted market power, no such proof was required to
establish an antitrust violation under
In re Mass. Bd. of
Registration in Optometry, 110 F. T. C. 549 (1988), since the
CDA had unreasonably prevented members and potential members
from using truthful, nondeceptive advertising, all to the detriment
of both dentists and consumers of dental services. He accordingly
found a violation of § 5 of the FTC Act. 121
The Commission adopted the factual findings of the ALJ except
for his conclusion that the
CDA lacked market power, with
which the Commission disagreed. The Commission treated the CDA's
restrictions on discount advertising as illegal
per se. 128
F. 3d, at 725. In the alternative, the Commission held the price
advertising (as well as the nonprice) restrictions to be violations
of the Sherman and FTC Acts
3 The FTC Act's prohibition of unfair competition and deceptive
acts or practices, 15 U. S. C. § 45(a)(I), overlaps the scope of §
1 of the Sherman Act, 15 U. S. C. § 1, aimed at prohibiting
restraint of trade,
FTC v.
Indiana Federation of
Dentists, 476 U.
S. 447, 454-455 (1986), and the Commission relied upon Sherman
Act law in adjudicating this case,
In re California Dental
Assn., 121 F. T. C. 190, 292, n. 5 (1996).
763
under an abbreviated rule-of-reason analysis. One Commissioner
concurred separately, arguing that the Commission should have
applied the
Mass. Bd. standard, not the
per se
analysis, to the limitations on price advertising. Another
Commissioner dissented, finding the evidence insufficient to show
either that the restrictions had an anticompetitive effect under
the rule of reason, or that the
CDA had market power. 128 F.
3d, at 725.
The Court of Appeals for the Ninth Circuit affirmed, sustaining
the Commission's assertion of jurisdiction over the
CDA and
its ultimate conclusion on the merits.
Id., at 730. The
court thought it error for the Commission to have applied
per
se analysis to the price advertising restrictions, finding
analysis under the rule of reason required for all the
restrictions. But the Court of Appeals went on to explain that the
Commission had properly
"applied an abbreviated, or 'quick look,' rule of reason
analysis designed for restraints that are not per se unlawful but
are sufficiently anticompetitive on their face that they do not
require a full-blown rule of reason inquiry. See [National
Collegiate Athletic Assn. v. Board of Regents of Univ. of
Okla., 468 U. S.
85, 109110, and n. 39 (1984)] ('The essential point is that the
rule of reason can sometimes be applied in the twinkling of an
eye.' [Ibid. (citing P. Areeda, The "Rule of Reason" in
Antitrust Analysis: General Issues 37-38 (Federal Judicial Center,
June 1981) (parenthetical omitted)).] It allows the condemnation of
a 'naked restraint' on price or output without an 'elaborate
industry analysis.' Id., at 109." Id., at 727.
The Court of Appeals thought truncated rule-of-reason analysis
to be in order for several reasons. As for the restrictions on
discount advertising, they "amounted in practice to a fairly
'naked' restraint on price competition itself,"
ibid. The
CDA's procompetitive justification, that the re-
764
strictions encouraged disclosure and prevented false and
misleading advertising, carried little weight because "it is simply
infeasible to disclose all of the information that is required,"
id., at 728, and "the record provides no evidence that the rule has
in fact led to increased disclosure and transparency of dental
pricing,"
ibid. As to nonprice advertising restrictions, the
court said that
"[t]hese restrictions are in effect a form of output limitation,
as they restrict the supply of information about individual
dentists' services. See Areeda & Hovenkamp, Antitrust
Law ~ 1505 at 693-94 (Supp. 1997) .... The restrictions may
also affect output more directly, as quality and comfort
advertising may induce some customers to obtain nonemergency care
when they might not otherwise do so .... Under these circumstances,
we think that the restriction is a sufficiently naked restraint on
output to justify quick look analysis." Ibid.
The Court of Appeals went on to hold that the Commission's
findings with respect to the CDA's agreement and intent to restrain
trade, as well as on the effect of the restrictions and the
existence of market power, were all supported by substantial
evidence.
Id., at 728-730. In dissent, Judge Real took the
position that the Commission's jurisdiction did not cover the CDA
as a nonprofit professional association engaging in no commercial
operations.
Id., at 730. But even assuming jurisdiction, he
argued, full-bore rule-ofreason analysis was called for, since the
disclosure requirements were not naked restraints and neither fixed
prices nor banned nondeceptive advertising.
Id., at
730-731.
We granted certiorari to resolve conflicts among the Circuits on
the Commission's jurisdiction over a nonprofit professional
association 4 and the occasions for abbreviated
4 Compare
In re American Medical Assn., 94 F. T. C. 701,
983-984, aff'd,
638 F.2d
443 (CA2 1980), aff'd by an equally divided Court,
455 U. S. 676 (1982)
(per curiam), and
FTC v.
National Comm'n on Egg
Nutrition, 517
765
rule-of-reason analysis.5 524 U. S. 980 (1998). We now vacate
the judgment of the Court of Appeals and remand.
II
The FTC Act gives the Commission authority over "persons,
partnerships, or corporations," 15 U. S. C. § 45(a)(2), and defines
"corporation" to include "any company ... or association,
incorporated or unincorporated, without shares of capital or
capital stock or certificates of interest, except partnerships,
which is organized to carry on business for its own profit or that
of its members," § 44. Although the Circuits have not agreed on the
precise extent of this definition, see n. 4,
supra, the
Commission has long held that some circumstances give it
jurisdiction over an entity that seeks no profit for itself. While
the Commission has claimed to have jurisdiction over a nonprofit
entity if a substantial part of its total activities provides
pecuniary benefits to its members, see
In re American Medical
Assn., 94 F. T. C. 701, 983-984 (1980), respondent now advances
the slightly different formulation that the Commission has
jurisdiction "over anticompetitive practices by nonprofit
associations whose activities provid[e] substantial economic
benefits to their for-profit members' businesses." Brief for
Respondent 20.
Respondent urges deference to this interpretation of the
Commission's jurisdiction as reasonable.
Id., at 25-26
(citing
Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984),
Mississippi Power & Light Co. v.
Mississippi ex rel.
Moore, 487 U. S.
354, 380-382
F. 2d 485, 487-488 (CA7 1975), with
Community Blood Bank
v.
FTC, 405
5 Cf. Bogan v. Hodgkins,
166 F.3d
509, 514, and n. 6 (CA2 1999); United States v. Brown
University,
5 F.3d
658, 669 (CA3 1993); Chicago Professional Sports Limited
Partnership v. National Basketball Assn.,
961
F.2d 667, 674-676 (CA7 1992); Law v. National Collegiate
Athletic Assn.,
134 F.3d
1010, 1020 (CAlO 1998); U. S. Healthcare, Inc. v. Healthsource,
Inc.,
986 F.2d
589, 594-595 (CAl1993).
766
(1988) (SCALIA, J., concurring) (Chevron deference applies to
agency's interpretation of its own statutory jurisdiction)). But we
have no occasion to review the call for deference here, the
interpretation urged in respondent's brief being clearly the better
reading of the statute under ordinary principles of
construction.
The FTC Act is at pains to include not only an entity "organized
to carry on business for its own profit," 15 U. S. C. § 44, but
also one that carries on business for the profit "of its members,"
ibid. While such a supportive organization may be devoted to
helping its members in ways beyond immediate enhancement of profit,
no one here has claimed that such an entity must devote itself
single-mindedly to the profit of others. It could, indeed, hardly
be supposed that Congress intended such a restricted notion of
covered supporting organizations, with the opportunity this would
bring with it for avoiding jurisdiction where the purposes of the
FTC Act would obviously call for asserting it.
Just as the FTC Act does not require that a supporting
organization must devote itself entirely to its members' profits,
neither does the Act say anything about how much of the entity's
activities must go to raising the members' bottom lines. There is
accordingly no apparent reason to let the statute's application
turn on meeting some threshold percentage of activity for this
purpose, or even satisfying a softer formulation calling for a
substantial part of the nonprofit entity's total activities to be
aimed at its members' pecuniary benefit. To be sure, proximate
relation to lucre must appear; the FTC Act does not cover all
membership organizations of profit-making corporations without
more, and an organization devoted solely to professional education
may lie outside the FTC Act's jurisdictional reach, even though the
quality of professional services ultimately affects the profits of
those who deliver them.
There is no line drawing exercise in this case, however, where
the CDA's contributions to the profits of its individual
767
members are proximate and apparent. Through for-profit
subsidiaries, the CDA provides advantageous insurance and
preferential financing arrangements for its members, and it engages
in lobbying, litigation, marketing, and public relations for the
benefit of its members' interests. This congeries of activities
confers far more than
de minimis or merely presumed economic
benefits on CDA members; the economic benefits conferred upon the
CDA's profit-seeking professionals plainly fall within the object
of enhancing its members' "profit," 6 which the FTC Act makes the
jurisdictional touch-
6 This conclusion is consistent with holdings by a number of
Courts of Appeals. In
FTC v.
National Comm'n on Egg
Nutrition, the Court of Appeals held that a nonprofit
association "organized for the profit of the egg industry," 517 F.
2d, at 488, fell within the Commission's jurisdiction. In
American Medical Assn. v.
FTC, 638
F.2d 443 (CA2 1980), the Court of Appeals held that the
"business aspects," id., at 448, of the AMA's activities brought it
within the Commission's reach. These cases are consistent with our
conclusion that an entity organized to carryon activities that will
confer greater than
de minimis or presumed economic benefits
on profit-seeking members certainly falls within the Commission's
jurisdiction. In
Community Blood Bank v.
FTC, the
Court of Appeals addressed the question whether the Commission had
jurisdiction over a blood bank and an association of hospitals. It
held that "the question of the jurisdiction over the corporations
or other associations involved should be determined on an ad hoc
basis," 405 F. 2d, at 1018, and that the Commission's jurisdiction
extended to "any legal entity without shares of capital which
engages in business for profit within the traditional meaning of
that language,"
ibid. (emphasis deleted). The Court of
Appeals also said that "[a]ccording to a generally accepted
definition 'profit' means gain from business or investment over and
above expenditures, or gain made on business or investment where
both receipts or payments are taken into account," id., at 1017,
although in the same breath it noted that the term's "meaning must
be derived from the context in which it is used," id., at 1016. Our
decision here is fully consistent with
Community Blood Bank,
because the CDA contributes to the profits of at least some of its
members, even on a restrictive definition of profit as gain above
expenditures. (It should go without saying that the FTC Act does
not require for Commission jurisdiction that members of an entity
turn a profit on their membership, but only that the entity be
organized to carryon business for members' profit.) Nonetheless, we
do not, and indeed, on the facts here, could
768
stone. There is no difficulty in concluding that the Commission
has jurisdiction over the CDA.
The logic and purpose of the FTC Act comport with this result.
The FTC Act directs the Commission to "prevent" the broad set of
entities under its jurisdiction "from using unfair methods of
competition in or affecting commerce and unfair or deceptive acts
or practices in or affecting commerce." 15 U. S. C. § 45(a)(2).
Nonprofit entities organized on behalf of for-profit members have
the same capacity and derivatively, at least, the same incentives
as for-profit organizations to engage in unfair methods of
competition or unfair and deceptive acts. It may even be possible
that a nonprofit entity up to no good would have certain
advantages, not only over a for-profit member but over a for-profit
membership organization as well; it would enjoy the screen of
superficial disinterest while devoting itself to serving the
interests of its members without concern for doing more than
breaking even.
Nor, contrary to petitioner's argument, is the legislative
history inconsistent with this interpretation of the Commission's
jurisdiction. Although the versions of the FTC Act first passed by
the House and the Senate defined "corporation" to refer only to
incorporated, joint stock, and sharecapital companies organized to
carry on business for profit, see H. R. Conf. Rep. No. 1142, 63d
Cong., 2d Sess., 11, 14 (1914), the Conference Committee
subsequently revised the definition to its present form, an
alteration that indicates an
not, decide today whether the Commission has jurisdiction over
nonprofit organizations that do not confer profit on for-profit
members but do, for example, show annual income surpluses, engage
in significant commerce, or compete in relevant markets with
for-profit players. We therefore do not foreclose the possibility
that various paradigms of profit might fall within the ambit of the
FTC Act. Nor do we decide whether a purpose of contributing to
profit only in a presumed sense, as by enhancing professional
educational efforts, would implicate the Commission's
jurisdiction.
769
intention to include nonprofit entities.7 And the legislative
history, like the text of the FTC Act, is devoid of any hint at an
exemption for professional associations as such.
We therefore conclude that the Commission had jurisdiction to
pursue the claim here, and turn to the question whether the Court
of Appeals devoted sufficient analysis to sustain the claim that
the advertising restrictions promulgated by the CDA violated the
FTC Act.
III
The Court of Appeals treated as distinct questions the
sufficiency of the analysis of anticompetitive effects and the
substantiality of the evidence supporting the Commission's
conclusions. Because we decide that the Court of Appeals erred when
it held as a matter of law that quick-look analysis was appropriate
(with the consequence that the Commission's abbreviated analysis
and conclusion were sustainable), we do not reach the question of
the substantiality of the evidence supporting the Commission's
conclusion.8
In
National Collegiate Athletic Assn. v.
Board of
Regents of Univ. of Okla., 468 U. S. 85 (1984), we
held that a "naked restraint on price and output requires some
competitive jus-
7 A letter from Bureau of Corporations Commissioner Joseph E.
Davies to Senator Francis G. Newlands, the bill's sponsor and a
member of the Conference Committee, written August 8, 1914, before
the Conference Committee revisions, included a memorandum dated
August 7, 1914, that expressed concern that the versions of the
bill passed by the House and the Senate would not extend
jurisdiction to purportedly nonprofit organizations, which might
"furnish convenient vehicles for common understandings looking to
the limitation of output and the fixing of prices contrary to law."
Trade Commission Bill: Letter from the Commissioner of Corporations
to the Chairman of the Senate Comm. on Interstate Commerce,
Transmitting Certain Suggestions Relative to the Bill (H. R. 15613)
to Create a Federal Trade Commission, 63d Cong., 2d Sess., 3
(1914).
8We leave to the Court of Appeals the question whether on remand
it can effectively assess the Commission's decision for substantial
evidence on the record, or whether it must remand to the Commission
for a more extensive rule-of-reason analysis on the basis of an
enhanced record.
770
tification even in the absence of a detailed market analysis."
Id., at 110. Elsewhere, we held that "no elaborate industry
analysis is required to demonstrate the anticompetitive character
of" horizontal agreements among competitors to refuse to discuss
prices,
National Soc. of Professional Engineers v.
United
States, 435 U. S.
679, 692 (1978), or to withhold a particular desired service,
FTC v.
Indiana Federation of Dentists, 476 U. S. 447, 459 (1986)
(quoting
National Soc. of Professional Engineers, supra, at
692). In each of these cases, which have formed the basis for what
has come to be called abbreviated or "quick-look" analysis under
the rule of reason, an observer with even a rudimentary
understanding of economics could conclude that the arrangements in
question would have an anticompetitive effect on customers and
markets. In
National Collegiate Athletic Assn., the league's
television plan expressly limited output (the number of games that
could be televised) and fixed a minimum price. 468 U. S., at
99-100. In
National Soc. of Professional Engineers, the
restraint was "an absolute ban on competitive bidding." 435 U. S.,
at 692. In
Indiana Federation of Dentists, the restraint was
"a horizontal agreement among the participating dentists to
withhold from their customers a particular service that they
desire." 476 U. S., at 459. As in such cases, quick-look analysis
carries the day when the great likelihood of anticompetitive
effects can easily be ascertained. See
Law v.
National
Collegiate Athletic Assn., 134 F.3d
1010, 1020 (CAlO 1998) (explaining that quick-look analysis
applies "where a practice has obvious anticompetitive effects");
Chicago Professional Sports Limited Partnership v.
National Basketball Assn., 961 F.2d
667, 674-676
(CA7 1992) (finding quick-look analysis
adequate after assessing and rejecting logic of proffered
procompetitive justifications); cf.
United States v.
Brown University, 5 F.3d
658,
677-678 (CA3 1993) (finding full rule-of-reason
analysis required where universities sought to provide financial
aid to needy students and noting by way of contrast that the
agree-
771
ments in
National Soc. of Professional Engineers and
Indiana Federation of Dentists "embodied a strong economic
self-interest of the parties to them").
The case before us, however, fails to present a situation in
which the likelihood of anticompetitive effects is comparably
obvious. Even on JUSTICE BREYER'S view that bars on truthful and
verifiable price and quality advertising are
prima facie
anticompetitive, see
post, at 784-785 (opinion concurring in
part and dissenting in part), and place the burden of
procompetitive justification on those who agree to adopt them, the
very issue at the threshold of this case is whether professional
price and quality advertising is sufficiently verifiable in theory
and in fact to fall within such a general rule. Ultimately our
disagreement with JUSTICE BREYER turns on our different responses
to this issue. Whereas he accepts, as the Ninth Circuit seems to
have done, that the restrictions here were like restrictions on
advertisement of price and quality generally, see,
e. g.,
post, at 785, 787, 790, it seems to us that the CDA's
advertising restrictions might plausibly be thought to have a net
procompetitive effect, or possibly no effect at all on competition.
The restrictions on both discount and nondiscount advertising are,
at least on their face, designed to avoid false or deceptive
advertising 9 in a market characterized by striking disparities
between the information available to the professional and the
patient.10 Cf. Carr & Mathewson, The Eco-
9 That false or misleading advertising has an anticompetitive
effect, as that term is customarily used, has been long
established. Cf. FTC v. Al
goma Lumber Co., 291 U. S. 67, 79-80 (1934)
(finding a false advertisement to be unfair competition).
10 "The fact that a restraint operates upon a profession as
distinguished from a business is, of course, relevant in
determining whether that particular restraint violates the Sherman
Act. It would be unrealistic to view the practice of professions as
interchangeable with other business activities, and automatically
to apply to the professions antitrust concepts which originated in
other areas. The public service aspect, and other features of the
professions, may require that a particular practice, which
could
772
nomics of Law Firms: A Study in the Legal Organization of the
Firm, 33 J. Law & Econ. 307, 309 (1990) (explaining that in a
market for complex professional services, "inherent asymmetry of
knowledge about the product" arises because "professionals
supplying the good are knowledgeable [whereas] consumers demanding
the good are uninformed"); Akerlof, The Market for "Lemons":
Quality Uncertainty and the Market Mechanism, 84 Q. J. Econ. 488
(1970) (pointing out quality problems in market characterized by
asymmetrical information). In a market for professional services,
in which advertising is relatively rare and the comparability of
service packages not easily established, the difficulty for
customers or potential competitors to get and verify information
about the price and availability of services magnifies the dangers
to competition associated with misleading advertising. What is
more, the quality of professional services tends to resist either
calibration or monitoring by individual patients or clients, partly
because of the specialized knowledge required to evaluate the
services, and partly because of the difficulty in determining
whether, and the degree to which, an outcome is attributable to the
quality of services (like a poor job of tooth filling) or to
something else (like a very tough walnut). See Leland, Quacks,
Lemons, and Licensing: A Theory of Minimum Quality Standards, 87 J.
Pol. Econ. 1328, 1330 (1979); 1 B. Furrow, T. Greaney, S. Johnson,
T. Jost, & R. Schwartz, Health Law § 3-1, p. 86 (1995)
(describing the common view that "the lay public is incapable of
adequately evaluating the quality of medical services"). Patients'
attachments to particular professionals, the rationality of which
is difficult to assess, complicate the picture even further. Cf.
Evans, Professionals and the Production Function: Can Competition
Policy Improve Efficiency in the Licensed Professions?, in
Occupational Licensure and Regulation 235-236 (S. Rotten-
properly be viewed as a violation of the Sherman Act in another
context, be treated differently."
Goldfarb v.
Virginia
State Bar, 421 U.
S. 773, 788-789, n. 17 (1975).
773
berg ed. 1980) (describing long-term relationship between
professional and client not as "a series of spot contracts" but
rather as "a long-term agreement, often implicit, to deal with each
other in a set of future unspecified or incompletely specified
circumstances according to certain rules," and adding that "[i]t is
not clear how or if these [implicit contracts] can be reconciled
with the promotion of effective price competition in individual
spot markets for particular services"). The existence of such
significant challenges to informed decisionmaking by the customer
for professional services immediately suggests that advertising
restrictions arguably protecting patients from misleading or
irrelevant advertising call for more than cursory treatment as
obviously comparable to classic horizontal agreements to limit
output or price competition.
The explanation proffered by the Court of Appeals for the likely
anticompetitive effect of the CDA's restrictions on discount
advertising began with the unexceptionable statements that "price
advertising is fundamental to price competition," 128 F. 3d, at
727, and that "[r]estrictions on the ability to advertise prices
normally make it more difficult for consumers to find a lower price
and for dentists to compete on the basis of price,"
ibid.
(citing
Bates v.
State Bar of Ariz., 433 U. S. 350, 364
(1977);
Morales v.
Trans World Airlines, Inc.,
504 U. S. 374,
388 (1992)). The court then acknowledged that, according to the
CDA, the restrictions nonetheless furthered the "legitimate, indeed
procompetitive, goal of preventing false and misleading price
advertising." 128 F. 3d, at 728. The Court of Appeals might, at
this juncture, have recognized that the restrictions at issue here
are very far from a total ban on price or discount advertising, and
might have considered the possibility that the particular
restrictions on professional advertising could have different
effects from those "normally" found in the commercial world, even
to the point of promoting competition by reducing the occurrence of
unverifiable and misleading across-the-board
774
discount advertisingY Instead, the Court of Appeals confined
itself to the brief assertion that the "CDA's disclosure
requirements appear to prohibit across-the-board discounts because
it is simply infeasible to disclose all of the information that is
required," ibid., followed by the observation that "the record
provides no evidence that the rule has in fact led to increased
disclosure and transparency of dental pricing," ibid.
But these observations brush over the professional context and
describe no anticompetitive effects. Assuming that the record in
fact supports the conclusion that the CDA disclosure rules
essentially bar advertisement of across-theboard discounts, it does
not obviously follow that such a ban would have a net
anticompetitive effect here. Whether advertisements that announced
discounts for, say, first-time customers, would be less effective
at conveying information relevant to competition if they listed the
original and discounted prices for checkups, X-rays, and fillings,
than they would be if they simply specified a percentage discount
across the board, seems to us a question susceptible to empirical
but not
a priori analysis. In a suspicious world, the
discipline of specific example may well be a necessary condition of
plausibility for professional claims that for all practical
purposes defy comparison shopping. It is also possible in principle
that, even if across-the-board discount advertisements were more
effective in drawing customers in the short run, the recurrence of
some measure of intentional or accidental misstatement due to the
breadth of their claims might
llJU8TICE BREYER claims that "the Court of Appeals did consider
the relevant differences."
Post, at 790. But the language he
cites says nothing more than that
per se analysis is
inappropriate here and that "some caution" was appropriate where
restrictions purported to restrict false advertising, see 128 F.
3d, at 726-727. Caution was of course appropriate, but this
statement by the Court of Appeals does not constitute a
consideration of the possible differences between these and other
advertising restrictions.
775
leak out over time to make potential patients skeptical of any
such across-the-board advertising, so undercutting the method's
effectiveness. Cf. Akerlof, 84 Q. J. Econ., at 495 (explaining that
"dishonest dealings tend to drive honest dealings out of the
market"). It might be, too, that acrossthe-board discount
advertisements would continue to attract business indefinitely, but
might work precisely because they were misleading customers, and
thus just because their effect would be anticompetitive, not
procompetitive. Put another way, the CDA's rule appears to reflect
the prediction that any costs to competition associated with the
elimination of across-the-board advertising will be outweighed by
gains to consumer information (and hence competition) created by
discount advertising that is exact, accurate, and more easily
verifiable (at least by regulators). As a matter of economics this
view mayor may not be correct, but it is not implausible, and
neither a court nor the Commission may initially dismiss it as
presumptively wrong.12
In theory, it is true, the Court of Appeals neither ruled out
the plausibility of some procompetitive support for the CDA's
requirements nor foreclosed the utility of an evidentiary
discussion on the point. The court indirectly acknowledged the
plausibility of procompetitive justifications for the
12JUSTICE BREYER suggests that our analysis is "of limited
relevance,"
post, at 791, because "[t]he basic question is
whether this ... theoretically redeeming virtue in fact offsets the
restrictions' anticompetitive effects in this case," ibid. He
thinks that the Commission and the Court of Appeals "adequately
answered that question," ibid., but the absence of any empirical
evidence on this point indicates that the question was not
answered, merely avoided by implicit burden shifting of the kind
accepted by JusTICE BREYER. The point is that before a theoretical
claim of anticompetitive effects can justify shifting to a
defendant the burden to show empirical evidence of procompetitive
effects, as quick-look analysis in effect requires, there must be
some indication that the court making the decision has properly
identified the theoretical basis for the anticompetitive effects
and considered whether the effects actually are anti competitive.
Where, as here, the circumstances of the restriction are somewhat
complex, assumption alone will not do.
776
CDA's position when it stated that "the record provides no
evidence that the rule has in fact led to increased disclosure and
transparency of dental pricing," 128 F. 3d, at 728. But because
petitioner alone would have had the incentive to introduce such
evidence, the statement sounds as though the Court of Appeals may
have thought it was justified without further analysis to shift a
burden to the CDA to adduce hard evidence of the procompetitive
nature of its policy; the court's adversion to empirical evidence
at the moment of this implicit burden shifting underscores the
leniency of its enquiry into evidence of the restrictions'
anticompetitive effects.
The Court of Appeals was comparably tolerant in accepting the
sufficiency of abbreviated rule-of-reason analysis as to the
nonprice advertising restrictions. The court began with the
argument that "[t]hese restrictions are in effect a form of output
limitation, as they restrict the supply of information about
individual dentists' services."
Ibid. (citing P. Areeda
& H. Hovenkamp, Antitrust Law ~ 1505, pp. 693-694 (1997
Supp.)). Although this sentence does indeed appear as cited, it is
puzzling, given that the relevant output for antitrust purposes
here is presumably not information or advertising, but dental
services themselves. The question is not whether the universe of
possible advertisements has been limited (as assuredly it has), but
whether the limitation on advertisements obviously tends to limit
the total delivery of dental services. The court came closest to
addressing this latter question when it went on to assert that
limiting advertisements regarding quality and safety "prevents
dentists from fully describing the package of services they offer,"
128 F. 3d, at 728, adding that "[t]he restrictions may also affect
output more directly, as quality and comfort advertising may induce
some customers to obtain nonemergency care when they might not
otherwise do so,"
ibid. This suggestion about output is also
puzzling. If quality advertising actually induces some patients to
obtain more care
777
than they would in its absence, then restricting such
advertising would reduce the demand for dental services, not the
supply; and it is of course the producers' supply of a good in
relation to demand that is normally relevant in determining whether
a producer-imposed output limitation has the anticompetitive effect
of artificially raising prices,13 see
General Leaseways,
Inc. v.
National Truck Leasing Assn., 744 F.2d
588, 594-595 (CA7 1984) ("An agreement on output also equates
to a price-fixing agreement. If firms raise price, the market's
demand for their product will fall, so the amount supplied will
fall too-in other words, output will be restricted. If instead the
firms restrict output directly, price will as mentioned rise in
order to limit demand to the reduced supply. Thus, with exceptions
not relevant here, raising price, reducing output, and dividing
markets have the same anticompetitive effects").
Although the Court of Appeals acknowledged the CDA's view that
"claims about quality are inherently unverifiable and therefore
misleading," 128 F. 3d, at 728, it responded that this concern
"does not justify banning all quality claims without regard to
whether they are, in fact, false or misleading,"
ibid. As a
result, the court said, "the restriction is a sufficiently naked
restraint on output to justify quick look analysis."
Ibid.
The court assumed, in these words, that some dental quality claims
may escape justifiable censure, because they are both verifiable
and true. But its implicit
13 JUSTICE BREYER wonders if we "mea[n] this statement as an
argument against the anti competitive tendencies that flow from an
agreement not to advertise service quality."
Post, at 791.
But as the preceding sentence shows, we intend simply to question
the logic of the Court of Appeals's suggestion that the
restrictions are anticompetitive because they somehow "affect
output," 128 F. 3d, at 728, presumably with the intent to raise
prices by limiting supply while demand remains constant. We do not
mean to deny that an agreement not to advertise service quality
might have anticompetitive effects. We merely mean that, absent
further analysis of the kind JUSTICE BREYER undertakes, it is not
possible to conclude that the net effect of this particular
restriction is anti competitive.
778
assumption fails to explain why it gave no weight to the
countervailing, and at least equally plausible, suggestion that
restricting difficult-to-verify claims about quality or patient
comfort would have a procompetitive effect by preventing misleading
or false claims that distort the market. It is, indeed, entirely
possible to understand the CDA's restrictions on unverifiable
quality and comfort advertising as nothing more than a
procompetitive ban on puffery, cf.
Bates, 433 U. S., at 366
(claims relating to the quality of legal services "probably are not
susceptible of precise measurement or verification and, under some
circumstances, might well be deceptive or misleading to the public,
or even false"); id., at 383-384 ("[A]dvertising claims as to the
quality of services ... are not susceptible of measurement or
verification; accordingly, such claims may be so likely to be
misleading as to warrant restriction"), notwithstanding JUSTICE
BREYER'S citation (to a Commission discussion that never faces the
issue of the unverifiability of professional quality claims, raised
in
Bates), post, at 785.14
The point is not that the CDA's restrictions necessarily have
the procompetitive effect claimed by the CDA; it is possible that
banning quality claims might have no effect at all on
competitiveness if, for example, many dentists made very much the
same sort of claims. And it is also of course possible that the
restrictions might in the final analysis be anticompetitive. The
point, rather, is that the plausibility of competing claims about
the effects of the professional advertising restrictions rules out
the indulgently abbreviated review to which the Commission's order
was treated. The obvious anticompetitive effect that triggers
abbreviated analysis has not been shown.
14 The Commission said only that" 'mere puffing' deceives no one
and has never been subject to regulation." 121 F. T. C., at 318.
The question here, of course, is not whether puffery may be subject
to governmental regulation, but whether a professional organization
may ban it.
779
In light of our focus on the adequacy of the Court of Appeals's
analysis, JUSTICE BREYER'S thorough-going,
de novo antitrust
analysis contains much to impress on its own merits but little to
demonstrate the sufficiency of the Court of Appeals's review. The
obligation to give a more deliberate look than a quick one does not
arise at the door of this Court and should not be satisfied here in
the first instance. Had the Court of Appeals engaged in a
painstaking discussion in a league with JUSTICE BREYER'S (compare
his 14 pages with the Ninth Circuit's 8), and had it confronted the
comparability of these restrictions to bars on clearly verifiable
advertising, its reasoning might have sufficed to justify its
conclusion. Certainly JUSTICE BREYER'S treatment of the antitrust
issues here is no "quick look." Lingering is more like it, and
indeed JUSTICE BREYER, not surprisingly, stops short of endorsing
the Court of Appeals's discussion as adequate to the task at
hand.
Saying here that the Court of Appeals's conclusion at least
required a more extended examination of the possible factual
underpinnings than it received is not, of course, necessarily to
call for the fullest market analysis. Although we have said that a
challenge to a "naked restraint on price and output" need not be
supported by "a detailed market analysis" in order to "requir[e]
some competitive justification,"
National Collegiate
Athletic Assn., 468 U. S., at 110, it does not follow that every
case attacking a less obviously anticompetitive restraint (like
this one) is a candidate for plenary market examination. The truth
is that our categories of analysis of anticompetitive effect are
less fixed than terms like
"per se," "quick look," and "rule
of reason" tend to make them appear. We have recognized, for
example, that "there is often no bright line separating
per
se from Rule of Reason analysis," since "considerable inquiry
into market conditions" may be required before the application of
any so-called
"per se" condemnation is justified.
Id., at 104, n. 26. "[W]hether the ultimate finding is the
product of a presumption or actual
780
market analysis, the essential inquiry remains the samewhether
or not the challenged restraint enhances competition."
Id.,
at 104. Indeed, the scholar who enriched antitrust law with the
metaphor of "the twinkling of an eye" for the most condensed
rule-of-reason analysis himself cautioned against the risk of
misleading even in speaking of a "spectrum" of adequate
reasonableness analysis for passing upon antitrust claims: "There
is always something of a sliding scale in appraising
reasonableness, but the sliding scale formula deceptively suggests
greater precision than we can hope for .... Nevertheless, the
quality of proof required should vary with the circumstances." P.
Areeda, Antitrust Law ~ 1507, p. 402 (1986).15 At the same time,
Professor Areeda also emphasized the necessity, particularly great
in the quasi-common law realm of antitrust, that courts explain the
logic of their conclusions. "By exposing their reasoning, judges
... are subjected to others' critical analyses, which in turn can
lead to better understanding for the future."
Id., ~ 1500,
at 364. As the circumstances here demonstrate, there is generally
no categorical line to be drawn between
15 Other commentators have expressed similar views. See,
e. g., Kolasky, Counterpoint: The Department of Justice's
"Stepwise" Approach Imposes Too Heavy a Burden on Parties to
Horizontal Agreements, Antitrust 41, 43 (spring 1998) ("[I]n
applying the rule of reason, the courts, as with any balancing
test, use a sliding scale to determine how much proof to require");
Piraino, Making Sense of the Rule of Reason: A New Standard for
Section 1 of the Sherman Act, 47 Vand. L. Rev. 1753, 1771 (1994)
("[C]ourts will have to undertake varying degrees of inquiry
depending upon the type of restraint at issue. The legality of
certain restraints will be easy to determine because their
competitive effects are obvious. Other restrictions will require a
more detailed analysis because their competitive impact is more
ambiguous"). But see Klein, A "Stepwise" Approach for Analyzing
Horizontal Agreements Will Provide a Much Needed Structure for
Antitrust Review, Antitrust 41, 42 (spring 1990) (examination of
procompetitive justifications "is by no means a full scrutiny of
the proffered efficiency justification. It is, rather, a hard look
at the justification to determine if it meets the defendant's
burden of coming forward with-but not establishing-a valid
efficiency justification").
781
restraints that give rise to an intuitively obvious inference of
anticompetitive effect and those that call for more detailed
treatment. What is required, rather, is an enquiry meet for the
case, looking to the circumstances, details, and logic of a
restraint. The object is to see whether the experience of the
market has been so clear, or necessarily will be, that a confident
conclusion about the principal tendency of a restriction will
follow from a quick (or at least quicker) look, in place of a more
sedulous one. And of course what we see may vary over time, if
rule-of-reason analyses in case after case reach identical
conclusions. For now, at least, a less quick look was required for
the initial assessment of the tendency of these professional
advertising restrictions. Because the Court of Appeals did not
scrutinize the assumption of relative anticompetitive tendencies,
we vacate the judgment and remand the case for a fuller
consideration of the issue.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE KENNEDY, and
JUSTICE GINSBURG join, concurring in part and dissenting in
part.
I agree with the Court that the Federal Trade Commission (FTC or
Commission) has jurisdiction over petitioner, and I join Parts I
and II of its opinion. I also agree that in a "rule of reason"
antitrust case "the quality of proof required should vary with the
circumstances," that "[w]hat is required ... is an enquiry meet for
the case," and that the object is a "confident conclusion about the
principal tendency of a restriction."
Ante, at 780 and this
page (internal quotation marks omitted). But I do not agree that
the Court has properly applied those unobjectionable principles
here. In my view, a traditional application of the rule of reason
to the facts as found by the Commission requires affirming the
Commission-just as the Court of Appeals did below.
782
Opinion of BREYER, J.
I
The Commission's conclusion is lawful if its "factual findings,"
insofar as they are supported by "substantial evidence," "make out
a violation of Sherman Act § 1."
FTC v.
Indiana
Federation of Dentists, 476 U. S. 447, 454-455
(1986). To determine whether that is so, I would not simply ask
whether the restraints at issue are anticompetitive overall.
Rather, like the Court of Appeals (and the Commission), I would
break that question down into four classical, subsidiary antitrust
questions: (1) What is the specific restraint at issue? (2) What
are its likely anticompetitive effects? (3) Are there offsetting
procompetitive justifications? (4) Do the parties have sufficient
market power to make a difference?
A
The most important question is the first: What are the specific
restraints at issue? See,
e. g., National Collegiate Athletic
Assn. v.
Board of Regents of Univ. of Okla., 468 U. S.
85, 98-100 (1984)
(NCAA); Broadcast Music, Inc. v.
Columbia Broadcasting System, Inc., 441 U. S. 1, 21-23 (1979).
Those restraints do
not include merely the agreement to
which the California Dental Association's (Dental Association or
Association) ethical rule literally refers, namely, a promise to
refrain from advertising that is "'false or misleading in any
material respect.'"
Ante, at 760 (quoting California Dental
Code of Ethics § 10 (1993), App. 33). Instead, the Commission found
a set of restraints arising out of the way the Dental Association
implemented this innocent-sounding ethical rule in practice,
through advisory opinions, guidelines, enforcement policies, and
review of membership applications.
In re California Dental
Assn., 121 F. T. C. 190 (1996). As implemented, the ethical
rule reached beyond its nominal target, to prevent truthful and non
deceptive advertising. In particular, the Commission determined
that the rule, in practice:
783
(1) "precluded advertising that characterized a dentist's fees
as being low, reasonable, or affordable," id., at 301;
(2) "precluded advertising ... of across the board discounts,"
ibid.; and
(3) "prohibit[ed] all quality claims," id., at 308.
Whether the Dental Association's basic rule
as
implemented actually restrained the truthful and nondeceptive
advertising of low prices, across-the-board discounts, and quality
service are questions of fact. The Administrative Law Judge (ALJ)
and the Commission may have found those questions difficult ones.
But both the ALJ and the Commission ultimately found against the
Dental Association in respect to these facts. And the question for
us-whether those agency findings are supported by substantial
evidence, see
Indiana Federation, supra, at 454-455-is not
difficult.
The Court of Appeals referred explicitly to some of the evidence
that it found adequate to support the Commission's conclusions. It
pointed out, for example, that the Dental Association's "advisory
opinions and guidelines indicate that ... descriptions of prices as
'reasonable' or 'low' do not comply" with the Association's rule;
that in "numerous cases" the Association "advised members of
objections to special offers, senior citizen discounts, and new
patient discounts, apparently without regard to their truth"; and
that one advisory opinion "expressly states that claims as to the
quality of services are inherently likely to be false or
misleading," all "without any particular consideration of whether"
such statements were "true or false."
128 F.3d
720, 729 (CA9 1997).
The Commission itself had before it far more evidence. It
referred to instances in which the Association, without regard for
the truthfulness of the statements at issue, recommended denial of
membership to dentists wishing to advertise, for example,
"reasonable fees quoted in advance," "major savings," or "making
teeth cleaning ... inexpensive."
784
Opinion of BREYER, J.
121 F. T. C., at 301. It referred to testimony that
"acrossthe-board discount advertising in literal compliance with
the requirements 'would probably take two pages in the telephone
book' and '[n]obody is going to really advertise in that fashion.'"
Id., at 302. And it pointed to many instances in which the
Dental Association suppressed such advertising claims as "we
guarantee all dental work for 1 year," "latest in cosmetic
dentistry," and "gentle dentistry in a caring environment."
Id., at 308-310.
I need not review the evidence further, for this Court has said
that "substantial evidence" is a matter for the courts of appeals,
and that it "will intervene only in what ought to be the rare
instance when the standard appears to have been misapprehended or
grossly misapplied."
Universal Camera Corp. v.
NLRB,
340 U. S. 474,
490-491 (1951). I have said enough to make clear that this is not a
case warranting our intervention. Consequently, we must decide only
the basic legal question whether the three restraints described
above unreasonably restrict competition.
B
Do each of the three restrictions mentioned have "the potential
for genuine adverse effects on competition"?
Indiana
Federation, 476 U. S., at 460; 7 P. Areeda, Antitrust Law ~
1503a, pp. 372-377 (1986) (hereinafter Areeda). I should have
thought that the anticompetitive tendencies of the three
restrictions were obvious. An agreement not to advertise that a fee
is reasonable, that service is inexpensive, or that a customer will
receive a discount makes it more difficult for a dentist to inform
customers that he charges a lower price. If the customer does not
know about a lower price, he will find it more difficult to buy
lower price service. That fact, in turn, makes it less likely that
a dentist will obtain more customers by offering lower prices. And
that likelihood means that dentists will prove less likely to offer
lower prices. But why should I have to spell out the obvious?
To
785
restrain truthful advertising about lower prices is likely to
restrict competition in respect to price-"the central nervous
system of the economy."
United States v.
SoconyVacuum Oil
Co., 310 U. S.
150, 226, n. 59 (1940); cf.,
e. g., Bates v.
State
Bar of Ariz., 433
U. S. 350, 364 (1977) (price advertising plays an
"indispensable role in the allocation of resources in a free
enterprise system");
Virginia Bd. of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 765 (1976). The
Commission thought this fact sufficient to hold (in the
alternative) that the price advertising restrictions were unlawful
per se. See 121 F. T.
C., at 307; cf.
Socony-
Vacuum, supra, at 222-228 (finding agreement among competitors
to buy "spot-market oil" unlawful
per se because of its
tendency to restrict price competition). For present purposes, I
need not decide whether the Commission was right in applying a
per se rule. I need only assume a rule of reason applies,
and note the serious anticompetitive tendencies of the price
advertising restraints.
The restrictions on the advertising of service quality also have
serious anticompetitive tendencies. This is not a case of "mere
puffing," as the FTC recognized. See 121 F. T. C., at 317-318; cf.
ante, at 778. The days of my youth, when the billboards near
Emeryville, California, home of AAA baseball's Oakland Oaks,
displayed the name of "Painless" Parker, Dentist, are long
gone-along with the Oakland Oaks. But some parents may still want
to know that a particular dentist makes a point of "gentle care."
Others may want to know about i-year dental work guarantees. To
restrict that kind of service quality advertisement is to restrict
competition over the quality of service itself, for, unless
consumers know, they may not purchase, and dentists may not compete
to supply that which will make little difference to the demand for
their services. That, at any rate, is the theory of the Sherman
Act. And it is rather late in the day for anyone to deny the
significant anticompetitive tendencies of an agreement that
restricts competition in any legitimate respect, see,
e.
g.,
786
Opinion of BREYER, J.
Paramount Famous Lasky Corp. v.
United States,
282 U. S. 30, 43
(1930);
United States v.
First Nat. Pictures, Inc.,
282 U. S. 44, 54-55 (1930), let alone one that inhibits
customers from learning about the quality of a dentist's
service.
Nor did the Commission rely solely on the unobjectionable
proposition that a restriction on the ability of dentists to
advertise on quality is likely to limit their incentive to compete
on quality. Rather, the Commission pointed to record evidence
affirmatively establishing that quality-based competition is
important to dental consumers in California. 121 F. T. C., at
309-311. Unsurprisingly, these consumers choose dental services
based at least in part on "information about the type and quality
of service."
Id., at 249. Similarly, as the Commission
noted, the ALJ credited testimony to the effect that "advertising
the comfort of services will 'absolutely' bring in more patients,"
and, conversely, that restraining the ability to advertise based on
quality would decrease the number of patients that a dentist could
attract.
Id., at 310. Finally, the Commission looked to the
testimony of dentists who themselves had suffered adverse effects
on their business when forced by petitioner to discontinue
advertising quality of care. See id., at 310-311.
The FTC found that the price advertising restrictions amounted
to a "naked attempt to eliminate price competition."
Id., at
300. It found that the service quality advertising restrictions
"deprive consumers of information they value and of healthy
competition for their patronage."
Id., at 311. It added that
the "anticompetitive nature of these restrictions" was "plain."
Ibid. The Court of Appeals agreed. I do not believe it
possible to deny the anticompetitive tendencies I have
mentioned.
C
We must also ask whether, despite their anticompetitive
tendencies, these restrictions might be justified by other
procompetitive tendencies or redeeming virtues. See 7 Areeda,
787
~ 1504, at 377-383. This is a closer question-at least in
theory. The Dental Association argues that the three relevant
restrictions are inextricably tied to a legitimate Association
effort to restrict false or misleading advertising. The
Association, the argument goes, had to prevent dentists from
engaging in the kind of truthful, nondeceptive advertising that it
banned in order effectively to stop dentists from making
unverifiable claims about price or service quality, which claims
would mislead the consumer.
The problem with this or any similar argument is an
empiricalone. Notwithstanding its theoretical plausibility, the
record does not bear out such a claim. The Commission, which is
expert in the area of false and misleading advertising, was
uncertain whether petitioner had even
made the claim. It
characterized petitioner's efficiencies argument as rooted in the
(unproved) factual assertion that its ethical rule "challenges
only advertising that is false or misleading." 121 F. T. C.,
at 316 (emphasis added). Regardless, the Court of Appeals wrote, in
respect to the price restrictions, that "the record provides no
evidence that the rule has in fact led to increased disclosure and
transparency of dental pricing." 128 F. 3d, at 728. With respect to
quality advertising, the Commission stressed that the Association
"offered no convincing argument, let alone evidence, that consumers
of dental services have been, or are likely to be, harmed by the
broad categories of advertising it restricts." 121 F. T. C., at
319. Nor did the Court of Appeals think that the Association's
unsubstantiated contention that "claims about quality are
inherently unverifiable and therefore misleading" could "justify
banning all quality claims without regard to whether they are, in
fact, false or misleading." 128 F. 3d, at 728.
With one exception, my own review of the record reveals no
significant evidentiary support for the proposition that the
Association's members must agree to ban truthful price and quality
advertising in order to stop untruthful claims. The one exception
is the obvious fact that one can stop un-
788
truthful advertising if one prohibits all advertising. But since
the Association made virtually no effort to sift the false from the
true, see 121 F. T. C., at 316-317, that fact does not make out a
valid antitrust defense. See
NCAA, 468 U. S., at 119; 7
Areeda, ~ 1505, at 383-384.
In the usual Sherman Act § 1 case, the defendant bears the
burden of establishing a procompetitive justification. See
National Soc. of Professional Engineers v.
United
States, 435 U. S.
679, 695 (1978); 7 Areeda, ~ 1507b, at 397; 11 H. Hovenkamp,
Antitrust Law ~ 1914c, pp. 313-315 (1998); see also
Law v.
National Collegiate Athletic Assn., 134
F.3d 1010, 1019 (CAW), cert. denied, 525 U. S. 822 (1998);
United States v.
Brown Univ., 5 F.3d
658, 669
(CA3 1993);
Capital Imaging Associates
v.
Mohawk Valley Medical Associates, Inc., 996 F.2d
537, 543
(CA2), cert. denied, 510 U. S. 947
(1993);
Kreuzer v.
American Academy of Periodontology, 735 F.2d
1479, 1492-1495
(CADC 1984). And the Court of Appeals
was correct when it concluded that no such justification had been
established here.
D
I shall assume that the Commission must prove one additional
circumstance, namely, that the Association's restraints would
likely have made a real difference in the marketplace. See 7
Areeda, ~ 1503, at 376-377. The Commission, disagreeing with the
ALJ on this single point, found that the Association did possess
enough market power to make a difference. In at least one region of
California, the midpeninsula, its members accounted for more than
90% of the marketplace; on average they accounted for 75%. See 121
F. T. C., at 314. In addition, entry by new dentists into the
marketplace is fairly difficult. Dental education is expensive
(leaving graduates of dental school with $50,000$100,000 of debt),
as is opening a new dentistry office (which costs
$75,000-$100,000).
Id., at 315-316. And Dental Association
members believe membership in the Association is
789
important and valuable and recognized as such by the public.
I d., at 312-313, 315-316.
These facts, in the Court of Appeals' view, were sufficient to
show "enough market power to harm competition through [the
Association's] standard setting in the area of advertising." 128 F.
3d, at 730. And that conclusion is correct. Restrictions on
advertising price discounts in Palo Alto may make a difference
because potential patients may not respond readily to discount
advertising by the handful (10%) of dentists who are not members of
the Association. And that fact, in turn, means that the remaining
90% will prove less likely to engage in price competition. Facts
such as these have previously led this Court to find market
powerunless the defendant has overcome the showing with strong
contrary evidence. See,
e. g., Indiana Federation, 476 U.
S., at 456-457; cf.
United States v.
Loew's Inc.,
371 U. S. 38, 45
(1962);
Brown Shoe Co. v.
United States, 370 U. S. 294, 341-344
(1962); accord,
United States v.
Aluminum Co. of
America, 148 F.2d 416, 424
(CA2 1945). I can find no
reason for departing from that precedent here.
II
In the Court's view, the legal analysis conducted by the Court
of Appeals was insufficient, and the Court remands the case for a
more thorough application of the rule of reason. But in what way
did the Court of Appeals fail? I find the Court's answers to this
question unsatisfactory-when one divides the overall Sherman Act
question into its traditional component parts and adheres to
traditional judicial practice for allocating the burdens of
persuasion in an antitrust case.
Did the Court of Appeals misconceive the anticompetitive
tendencies of the restrictions? After all, the object of the rule
of reason is to separate those restraints that "may suppress or
even destroy competition" from those that "merely regulat[e] and
perhaps thereby promot[e] competition."
Board of Trade of
Chicago v.
United States, 246 U. S. 231,
790
Opinion of BREYER, J.
238 (1918). The majority says that the Association's
"advertising restrictions might plausibly be thought to have a net
procompetitive effect, or possibly no effect at all on
competition."
Ante, at 771. It adds that
"advertising restrictions arguably protecting patients from
misleading or irrelevant advertising call for more than cursory
treatment as obviously comparable to classic horizontal agreements
to limit output or price competition." Ante, at 773.
And it criticizes the Court of Appeals for failing to recognize
that "the restrictions at issue here are very far from a total ban
on price or discount advertising" and that "the particular
restrictions on professional advertising could have different
effects from those 'normally' found in the commercial world, even
to the point of promoting competition .... "
Ibid.
The problem with these statements is that the Court of Appeals
did consider the relevant differences. It
rejected the legal
"treatment" customarily applied "to classic horizontal agreements
to limit output or price competition"-i.
e., the FTC's
(alternative)
per se approach. See 128 F. 3d, at 726-727. It
did so because the Association's "policies do not, on their face,
ban truthful nondeceptive ads"; instead, they "have been enforced
in a way that restricts truthful advertising," id., at 727. It
added that "[t]he value of restricting false advertising ...
counsels some caution in attacking rules that purport to do so but
merely sweep too broadly."
Ibid.
Did the Court of Appeals misunderstand the nature of an
anticompetitive effect? The Court says:
"If quality advertising actually induces some patients to obtain
more care than they would in its absence, then restricting such
advertising would reduce the demand for dental services, not the
supply; and ... the producers' supply ... is normally relevant in
determining
791
whether a ... limitation has the anticompetitive effect of
artificially raising prices." Ante, at 776-777.
But if the Court means this statement as an argument against the
anticompetitive tendencies that flow from an agreement not to
advertise service quality, I believe it is the majority, and not
the Court of Appeals, that is mistaken. An agreement not to
advertise, say, "gentle care" is anticompetitive because it imposes
an artificial barrier against each dentist's independent decision
to advertise gentle care. That barrier, in turn, tends to inhibit
those dentists who want to supply gentle care from getting together
with those customers who want to buy gentle care. See P. Areeda
& H. Hovenkamp, Antitrust Law ~ 1505', p. 404 (Supp. 1998).
There is adequate reason to believe that tendency present in this
case. See
supra, at 786.
Did the Court of Appeals inadequately consider possible
procompetitive justifications? The Court seems to think so, for it
says:
"[T]he [Association's] rule appears to reflect the prediction
that any costs to competition associated with the elimination of
across-the-board advertising will be outweighed by gains to
consumer information (and hence competition) created by discount
advertising that is exact, accurate, and more easily verifiable (at
least by regulators)." Ante, at 775.
That mayor may not be an accurate assessment of the
Association's motives in adopting its rule, but it is of limited
relevance. Cf.
Board of Trade of Chicago, supra, at 238. The
basic question is whether this, or some other, theoretically
redeeming virtue in fact offsets the restrictions' anticompetitive
effects in this case. Both court and Commission adequately answered
that question.
The Commission found that the defendant did not make the
necessary showing that a redeeming virtue existed in practice. See
121 F. T. C., at 319-320. The Court of Ap-
792
Opinion of BREYER, J.
peals, asking whether the rules, as enforced, "augment[ed]
competition and increase[d] market efficiency," found the
Commission's conclusion supported by substantial evidence. 128 F.
3d, at 728. That is why the court said that "the record provides no
evidence that the rule has in fact led to increased disclosure and
transparency of dental pricing"which is to say that the record
provides no evidence that the effects, though anticompetitive, are
nonetheless redeemed or justified.
Ibid.
The majority correctly points out that "petitioner alone would
have had the incentive to introduce such evidence" of
procompetitive justification.
Ante, at 776. (Indeed, that is
one of the reasons defendants normally bear the burden of
persuasion about redeeming virtues. See
supra, at 788.) But
despite this incentive, petitioner's brief in this Court offers
nothing concrete to counter the Commission's conclusion that the
record does not support the claim of justification. Petitioner's
failure to produce such evidence itself "explain[s] why [the lower
court] gave no weight to the ... suggestion that restricting
difficult-to-verify claims about quality or patient comfort would
have a procompetitive effect by preventing misleading or false
claims that distort the market."
Ante, at 778.
With respect to the restraint on advertising across-theboard
discounts, the majority summarizes its concerns as follows:
"Assuming that the record in fact supports the conclusion that the
[Association's] disclosure rules essentially bar advertisement of
[such] discounts, it does not obviously follow that such a ban
would have a net anticompetitive effect here."
Ante, at 774.
I accept, rather than assume, the premise: The FTC found that the
disclosure rules did bar advertisement of across-the-board
discounts, and that finding is supported by substantial evidence.
See
supra, at 783784. And I accept as
literally true
the conclusion that the Court says follows from that premise,
namely, that "net anticompetitive effects" do not
"obviously" follow from that
793
premise. But obviousness is not the point. With respect to any
of the three restraints found by the Commission, whether "net
anticompetitive effects" follow is a matter of how the Commission,
and, here, the Court of Appeals, have answered the questions I laid
out at the beginning. See
supra, at 782. Has the Commission
shown that the restriction has anticompetitive tendencies? It has.
Has the Association nonetheless shown offsetting virtues? It has
not. Has the Commission shown market power sufficient for it to
believe that the restrictions will likely make a real world
difference? It has.
The upshot, in my view, is that the Court of Appeals, applying
ordinary antitrust principles, reached an unexceptional conclusion.
It is the same legal conclusion that this Court itself reached in
Indiana Federation-a much closer case than this one. There
the Court found that an agreement by dentists not to submit dental
X rays to insurers violated the rule of reason. The anticompetitive
tendency of that agreement was to reduce competition among dentists
in respect to their willingness to submit X rays to insurers, see
476 U. S., at 456-a matter in respect to which consumers are
relatively indifferent, as compared to advertising of price
discounts and service quality, the matters at issue here. The
redeeming virtue in
Indiana Federation was the alleged
undesirability of having insurers consider a range of matters when
deciding whether treatment was justified-a virtue no less
plausible, and no less proved, than the virtue offered here. See
id., at 462-464. The "power" of the dentists to enforce their
agreement was no greater than that at issue here (control of 75% to
90% of the relevant markets). See id., at 460. It is difficult to
see how the two cases can be reconciled.
***
I would note that the form of analysis I have followed is not
rigid; it admits of some variation according to the circumstances.
The important point, however, is that its allocation
794
Opinion of BREYER, J.
of the burdens of persuasion reflects a gradual evolution within
the courts over a period of many years. That evolution represents
an effort carefully to blend the procompetitive objectives of the
law of antitrust with administrative necessity. It represents a
considerable advance, both from the days when the Commission had to
present and/or refute every possible fact and theory, and from
antitrust theories so abbreviated as to prevent proper analysis.
The former prevented cases from ever reaching a conclusion, cf.
Bok, Section 7 of the Clayton Act and the Merging of Law and
Economics, 74 Harv. L. Rev. 226, 266 (1960), and the latter called
forth the criticism that the "Government always wins,"
United
States v.
Von's Grocery Co., 384 U. S. 270, 301 (1966)
(Stewart, J., dissenting). I hope that this case does not represent
an abandonment of that basic, and important, form of analysis.
For these reasons, I respectfully dissent from Part III of the
Court's opinion.
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