Speaking Notes for Janet E. Holmes A/Senior Competition Law Officer

Civil Matters Branch
Competition Bureau

“Open Wide”

College of Dental Hygienists of Ontario
General Council Meeting

Toronto, Ontario

October 19, 2007

(Check against delivery)

“Open wide.”

Our collective experiences with oral health care have been so standardized or defined that that very phrase has come to be iconic - we all know what it means and we all have basically the same picture in our heads when we hear it. We all know what the next line is, too. Today however, we stand at the beginning of a time where in the future, persons who are invited to open wide may have a very different picture. Perhaps my kids, when they hear “open wide”, will not think of the same thing as we do because their experience of oral health care now has the chance to be different than ours has been.

But, why am I, a representative of the Competition Bureau, standing up here talking about the things you already know about? Because I want to start to change the connotations of that iconic phrase just a little. When I say “open wide,” I want to talk about the market for your services.

I’m going to spend the next few minutes telling you a little bit about the Bureau - who we are, how we operate and what our priorities are. It may be that most of you are aware that we have been following developments in your field with great interest over the past few years, and I’ll touch on that, but I want to talk to you about the future as well. You have achieved the right to self-initiate, but there are new challenges for you, and I want to talk about what some of those might be.

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The Role of the Bureau

So, what does the Competition Bureau do?

I hope you can all agree that in principle, competition is a good thing. It offers many benefits that you enjoy every day, including competitive prices, choices for consumers and opportunities to create and grow businesses. Being able to compete is to have the chance to get ahead. We, as a society, value the ability to compete, and like other valuables, we protect it, using the Competition Act, and the agency that enforces that Act, the Competition Bureau.

The Bureau, however, isn’t just some sort of monolithic bureaucracy that decides that it likes the idea of competition. Our work has a very practical bent to it. We are a law enforcement agency and it is our job to safeguard and promote competition in Canada. Generally speaking, we do this in one of two ways. In our law enforcement role, we respond to actual or alleged instances of competitive harm, to determine if the Competition Act has been breached. Practically speaking, this means that we deal with things that affect all of us every day, such as deceptive telemarketing, misleading advertising, criminal conspiracies to fix prices, mergers and large powerful players in a market unfairly keeping the others out by abusing their power. Ultimately, we are able to bring those who harm competition before either the criminal courts, or, in civil cases, the Competition Tribunal. Most often, we seek early and effective resolution of our concerns for the benefit of Canadians.

We also act as a voice for competition. We fulfill this role as competition advocates in a number of ways. It may be that we make formal appearances or interventions before various boards, commissions or tribunals, such as the Canadian Radio-television and Telecommunications Commission. At other times, we are able to act in a less formal supporting role, providing advice to regulators on the impact on competition of proposed legislation, regulations or policies. It is probably in this latter role that many of you have become aware of the Bureau for the first time.

Like everyone else these days, however, we cannot be all things to all people, and given that our mandate covers the breadth of the economy, it is important that we set priorities and remain focussed on those. As a result, the Bureau has clear and publicly articulated priorities.

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The Bureau’s Priorities

The Commissioner of Competition, Sheridan Scott, takes our role as competition advocate very seriously and our priorities reflect the importance of this aspect of what we do. They reflect that self-regulating professions such as your own are crucial players in the economy. As a voice for competition supporting consumers’ rights to choices and competitive prices, and for businesses to be able to fairly participate, the Bureau cares about how professions conduct themselves. Health is also a priority area of interest to the Bureau. When something is identified as a Bureau priority, it flavours the work across our various branches, and so we, through our various teams, have been involved in markets dealing with: hospital construction, medical equipment, service and supplies; pharmaceuticals; many self-regulated professions; and the vast array of products and services bought directly by consumers in the interests of improving their health and well being.

It is with the clear vision in mind of our role, and that of yourselves and other self-regulated professions and the importance of health care in Canada, that I am thankful to be here today.

The Bureau and Dental Hygiene

A few years ago, knowing that both health and professions were priority areas for the Bureau, we became aware of the creeping momentum of the emerging profession of dental hygiene. We also learned more about some of the particular obstacles that you have been facing.

As is our habit, we looked to our international colleagues to gain some understanding of the global context. We found that you are a hot topic for competition authorities around the globe.

Dentistry and dental hygiene have been the subject of studies, reports and anti-trust enforcement by many of our international colleagues. For example, the UK and Ireland have each issued reports that have identified restrictions found in the market that limit the ability of the consumer to choose and have other anti-competitive effects. Reports such as these are good examples of advocacy for competition at work.

For an example of enforcement work, we can turn our gaze south. Just this past summer, the US FTC arrived at a settlement of charges brought in 2003 against the South Carolina Board of Dentistry.¹ It was alleged that competition was unlawfully restrained when dentists adopted a rule that required a dentist to examine every child before a hygienist could provide preventative care in schools. They adopted this rule after the legislature had specifically eliminated this requirement from the books. By the terms of the agreement, the Board must affirm and publicize its support for the state legislative policy. On an interesting note, the Board must also provide written notice to the Federal Trade Commission prior to the adoption of any action, including rules, regulations, policies and disciplinary actions relating to the provision of preventative dental services by dental hygienists in public health settings.

That is just a bit of the international context in which we undertook our work in this area.

Many of you have been working for many years to help your profession reach its full potential. When we turned our attention to hygienists, we found that the solid foundation and groundwork that you had laid in years past, coupled with a mounting impetus for change had resulted in a number of exciting opportunities for the Bureau to become involved.

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When we set out to learn how your profession functions across Canada, we found a patchwork of various challenges in different provinces. As you know, in some provinces hygienists are not even self-regulated. In others, like here, you have had self-regulation for quite some time, and yet the profession faces other types of barriers and restrictions. When we started looking at your situation, it was not long before we recognized that many of the same issues that our international counterparts found notable were also of issue here.

Late in 2005, we learned that Alberta, Nova Scotia, and New Brunswick were in the process of modifying their regulations to establish self-regulation for dental hygienists. The Bureau sent letters to all three governments laying out the Bureau’s perspective on professional self-regulation and the legal structure under which it functions. In those letters we set down general guiding principles which governments should recognize when creating self-regulating organizations. I won’t list them here, but in general they address such issues as market access, transparency, impartiality and periodic reassessment.

At its most basic, our message is:

• some form of regulation, especially social and safety regulations, are inevitable and often desirable;
  
  
• however, regulation should interfere minimally with the marketplace; and
  
  
• in short - regulate only when necessary and consider the costs of regulation.

This was, for us, an important opportunity to act as an advocate for competition. It allowed us the chance to offer the governments involved a bit of a framework within which to make their choices.

It is with pleasure and anticipation that we have watched the province of Alberta adopt a regime that allows for a competitive market and we look forward to Albertans receiving the benefits of competition. We are hopeful that Nova Scotia will be the next market to see change and we also hope that New Brunswick will find value in the advice we have offered when they make their decisions.

And then, there is Ontario.

Our examination of Ontario yielded a clear example of what we refer to as a barrier to entry to the market. Again we found that the ground work by the professions involved, together with the impetus for change by the government provided us with an opportunity to fulfill our role as an advocate for competition. In January of this year, we were able to offer a competition-based analysis of proposed legislative and regulatory amendments that would permit dental hygienists to better offer consumers choice and access to their services. That letter, like the others is available on our Web site and it later became our submission to the Ontario Legislature’s Standing Committee on Social Policy. Like you, we were glad to see the order requirement go from being a seemingly unsurmountable barrier to becoming a footnote in the history of dental hygiene in Ontario.

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The Bureau and Professions

Our work in the field of dental hygiene has been undertaken within the context of a larger interest we have in self-regulated professions. We look at professions from the point of view of regulation or restriction and competition rubbing up against each other, and we examine that friction. Professions are regulated - that is their nature, and there are important and sound reasons for that. We do not necessarily think that it should be otherwise. What we are concerned with however, is the quality of that regulation and whether the way in which a profession is regulated acts as a restriction on competition.

Our interest lies in both long established professions, and those that are emerging or becoming more autonomous, such as your own. For the incumbent professions in a market, we would challenge them to consider whether the rules by which they govern themselves are still necessary and relevant. Do they restrict competition unnecessarily? What are their impact on other professions that are in the same market? What is their impact on consumers? Where once there might have been a good reason for creating a particular restriction, has it evolved or is it applied in a way so as to serve the profession’s own economic self-interests? If you examine a particular rule or restriction, can you make a clear link between it and the reason it exists - is it justifiable?

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The Professions Study

Last year our Commissioner announced that we would be undertaking a comparative study into a number of self-regulating professions to determine to what extent, if at all, any of them use anti-competitive restrictions that limit access to their profession or to control the competitive conduct of their members. Such restrictions include any bearing on accreditation, mobility, scope of practice, advertising, pricing and business structure. The study covers the legislation, regulations and codes of practice governing a range of professional services offered in all ten provinces and the three territories. The specific professions we have been studying are accountants, lawyers, real estate agents, and in a reflection of our priority to look at health - optometrists and pharmacists.

The goal of this study is not to ask the provinces or the regulatory bodies to deregulate, but rather for them to conduct a critical review of existing regulations and ask themselves are those regulations necessary and are they the least costly way of protecting the public? For example, we are not saying that entry into a profession or conduct should not be regulated, but rather that the regulation should be considered and legitimate - that is, have a clearly articulated goal. The drafters of your recent standard of practice for self-initiation clearly took our advice in this regard to heart as each element of those standards has a clearly articulated rationale.

It is our hope that the recent changes in Ontario and Alberta to the practice of dental hygiene are a hallmark of governments’ willingness to embark on such critical reviews, to the benefit of competition and ultimately, consumers.

On behalf of the Bureau and my colleagues in the Civil Matters Branch, I am proud to say that this study will be released in the coming weeks. Although dental hygienists are not one of the participating professions, the competition-based principles and considerations will necessarily be applicable to many professions, including your own. I would invite you to read our study upon its release. Although all of you are intimately familiar with some types of restrictions, such as supervisory requirements, the study will give you a distinct starting point in identifying other challenges that you will face as an emerging and self- regulated profession both now and in the future.

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A New Reality for Dental Hygiene

The profession of dental hygiene is not a new one. It certainly is not the world’s oldest profession, but it has been around for a long time. That being said, it is unarguably at different stages of development in different places. In some provinces, your colleagues are just starting to establish themselves as self-regulating professionals. In others, you are already well established and might be in danger of becoming complacent.

Regardless of where you find yourselves in your evolution, I challenge you to hold yourselves up to careful and constant scrutiny. Our professions study looks at restrictions on accreditation, mobility, scope of practice, advertising, pricing and business structures. Start there. Ask yourself, do you, as a profession, place restrictions on advertising, or business structures? Will your entrepreneurial members who are stepping out into the market with their new independent practices be able to advertise their prices? Will they be able to go into business with another profession? If the answer is no, ask yourself “ why not?” I am not saying necessarily that there isn’t a good answer to the “why not,” but have you asked yourself the question recently?

What will your reaction be to other emerging professions? If, in upcoming years, Dental Assistants gain the privilege of self-regulation, what will their struggle be like, and what role will you play in it?

How do you address mobility issues? Can a hygienist from the east or west coast move here and practice easily? The answer to that question might be justifiably different if I was posing it to members of the Bar, given that laws vary widely from province to province. Do mouths?

Do you have a fee schedule, and if so, is it mandatory or simply recommended, and do you know the difference as it relates to competition law? Can you identify the pitfalls of anti-competitive conduct such as collusion, refusals to deal, or price maintenance, into which unwitting professions may wander?

Bring the same type of analysis to bear on yourselves as has been used to justify your greater independence. Look through the lens of competition and use it as a mirror. Regulation should clearly and effectively address legitimate concerns without unnecessarily restricting competition. Are your regulations necessary and are they the least costly way of protecting the public? If they were necessary yesterday, are they necessary today and will they still be necessary tomorrow?

This is an exciting time for your profession. You are standing on the edge of a new reality where you can explore new and innovative ways to participate in the market.

As your members do become more competitive market participants, you will necessarily face new challenges. Gaining the ability to compete allows dental hygienists the privilege of running the race. It does not necessarily guarantee a win. Your entrepreneurial members will venture forth. More than 350 of your members have sought the right to self-initiate. Some will succeed, others will fail, for that is the very nature of competition. It is our hope that you gain and maintain the level playing field required, and that by wearing our two hats as advocate for competition, and law enforcement agency, we are able to assist you in bringing the benefits of competition to the market for dental hygiene services, and in so doing, offer Canadians competitive prices, greater choice and access to care. We can work together to see your future “open wide.”

Thank you for both your kind attention, and for the opportunity to join you here today.

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¹ See FTC news release at http://www.ftc.gov/opa/2007/06/dentists.shtm