Referrals

CSI Referrals

In 2015, the United States Supreme Court ruled that the North Carolina State Board of Dental Examiners (NC Board), which was made up primarily of dentists, was subject to federal antitrust law when the NC Board excluded non-dentists from the teeth whitening business. The Court determined that the NC Board was not adequately subject to "active supervision" by the state for its actions which were subject to state or federal antitrust law.

As a result of the Supreme Court decision, the Ohio General Assembly enacted ORC 107.56. This new section of code provides a mechanism through which boards or commissions, or someone affected by an action by a board or commission, may refer to the CSI Office the action that may be subject to state or federal antitrust law. The CSI Office, after review of the matter, will approve or disapprove the action.


FAQs

Who can refer an action or proposed action to the Common Sense Initiative (CSI)?

Any state board or commission that licenses or otherwise regulates an occupation or industry to which one or more members of the body belongs, or a person who is affected by an action or proposed action of such a state board or commission.

What can be reviewed by CSI?

As described in Ohio Revised Code (ORC) section 107.56, any action or proposed action that has any of the following effects:

  • Fixing prices, limiting price competition, or increasing prices in this state for the goods or services that are provided by the occupation or industry regulated by the board or commission;
  • Dividing, allocating, or assigning customers, potential customers, or geographic markets in this state among members of the occupation or industry regulated by the board or commission;
  • Excluding present or potential competitors from the occupation or industry regulated by the board or commission;
  • Limiting the output or supply in this state of any good or service provided by the members of the occupation or industry regulated by the board or commission; and
  • Any other activity that could be subject to state or federal antitrust law if the action were undertaken by a private person.

What cannot be reviewed by CSI?

Denial of license applications or taking disciplinary actions because of an applicant’s or licensee’s lack of compliance with or violation of state law

How do I initiate a referral?

Gather all the facts and pertinent documentation and provide the information requested on the appropriate Referral Analysis form. There is a Referral Analysis form specific to boards and commissions and a form specific to persons affected by board or commissions’ actions. Send the completed Referral Analysis form and any relevant documentation to the CSI Office at CSIReferrals@governor.ohio.gov. If you are an individual submitting a referral, you must first send a copy of the information to the subject board or commission, and then send your referral to CSI along with evidence that you also notified the board or commission. The CSI email address is CSIReferrals@governor.ohio.gov.

Are there any timing limitations?

Yes. If you are an individual making a referral to CSI, you must do so within 30 days after receiving notice of the action or proposed action by a state board or commission.

What does CSI determine in its review?

CSI determines whether the referred action is supported by, and consistent with, a clearly articulated state policy as expressed in statute or rule. If such a clearly articulated state policy supports the action or proposed action, CSI then must determine whether that state policy is merely a pretext that enables the board or commission to regulate in a way that leads to anticompetitive conduct that could be subject to state or federal antitrust law.

What does CSI determine about the referral?

CSI will either approve the action or proposed action and the board or commission may proceed, or it will disapprove the action which will then render the action void.

How will I know when CSI has made a decision on the referral?

The CSI Office will post the Referral Analysis and the Memorandum of Decision on its web site. Further, anyone may inquire about a particular referral by contacting the CSI Office.

How does the CSI review impact legal action?

A person having standing to commence and prosecute a state or federal antitrust action against a board or commission shall exhaust the remedies provided by this section before commencing such an action. This requirement does not apply to the attorney general, a county prosecuting attorney, or any assistant prosecutor designated to assist a county prosecuting attorney.

What statute and rules apply to referrals?

Ohio Revised Code 107.56 defines the actions reviewed by CSI and pending Ohio Administrative Code (OAC) 107-3 defines the scope, purpose and procedures for referrals.

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