Request By:
Lowell V. Thompson, Jr., Esq.
401 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask our opinion of whether 201 KAR 8:015 § 6, a regulation of the Kentucky Board of Dentistry, violates the Commerce Clause of the Federal Constitution. This section of the regulation provides:
"Section 6. A dentist may use only the services of a commercial dental laboratory which is duly registered with the Board as required by KRS, Chapter 313, and these regulations. "
Your concern arises from the fact that when this section of the regulation is read with section 7, the result is to require out-of-state dental laboratories to register with the board if they are to provide services or goods to a dentist in Kentucky. 201 KAR 8:015 § 7 provides:
"Section 7. All commercial dental laboratories operating, doing business or intending to operate or do business within this State shall be required to register with the Board and pay a fee as required by the Board. A dental laboratory shall be considered as operating or doing business in this State if its work product is prepared pursuant to a written authorization originating within this State."
The question which you ask is whether the practical effect of section 6, quoted supra, violates the Commerce Clause which provides:
"The Congress shall have the power . . . to regulate commerce . . . among the several states. . . ." U.S. Const. Art.I, § VIII.
Congress has not enacted a statute which regulates the right of a state to control the dental laboratories which a state licensed dentist may use. Thus, there is no question of federal pre-emption of this local matter, cf. Robbins v. Shelby County Taxing Dist., 120 U.S. 489 (1887).
Assuming that section 6 does affect interstate commerce, the issue of what dental laboratories a Kentucky licensed dentist may use is purely a local (state) matter. Thus, this regulation does not offend the Constitution, cf. Maurer v. Hamilton, 309 U.S. 598 (1938). This conclusion is further supported by the fact that section 6 is intended to protect the public from ineptly fabricated dental applicances. In this situation, state regulations which affect interstate commerce but which are intended to protect the public health have been upheld, cf. Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960).
In conclusion, we are of the opinion that 201 KAR 8:015(6) does not offend the Federal Constitution as discussed above. We specifically limit this opinion to its consideration of section 6 of the regulation.