NJDA to appeal ruling in lawsuit against tanning salon
Article Thumbnail ImageJuly 1, 2011 -- Teeth-whitening services offered by nondentists at mall kiosks and beauty salons is a contentious issue across the U.S. While many states are moving to ban the practice, others are pushing nondental businesses to shut down voluntarily.
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Now a legal battle between the New Jersey Dental Association (NJDA) and a New Jersey tanning salon that offers teeth whitening has taken an interesting turn, following a judge's ruling in favor of the tanning salon.

The NJDA filed a lawsuit late last year against Beach Bum Tanning, an East Coast chain with 17 locations in New Jersey that has been offering its clients teeth whitening as well as tanning services.

The key issue in this and similar cases is whether offering teeth whitening in mall kiosks or beauty salons constitutes the practice of dentistry. The Connecticut State Dental Commission recently ruled that teeth whitening is dentistry and can no longer be performed at spas, salons, and shopping malls unless it is done under the supervision of a licensed dentist, and the North Carolina State Board of Dental Examiners has been embroiled in a debate over whether its efforts to keep nondentists from performing teeth-whitening services constitutes anticompetitive conspiracy.

“The NJDA respectfully disagrees with the legal conclusion.”

In its lawsuit, the NJDA alleged unfair competition on behalf of its members and accused Beach Bum salons of practicing dentistry without a license.

"Entities other than dentists that provide teeth-whitening services are engaged in the practice of dentistry," NJDA's attorney Arthur Meisel, told DrBicuspid.com in November. "Those providing that service other than in a properly equipped dental facility by a dentist are engaged in dishonest and unfair competition."

Earlier this month, a New Jersey judge held that "the NJDA as a professional association does not have standing to enforce the provisions of the Dentistry Act through unfair competition claims."

Patient safety or turf war?

Many dental experts have expressed concern about patient safety when it comes to teeth whitening in nondental settings. They say that the personnel at these facilities are not required to have any kind of dental training and that a flawed procedure could lead to allergic reactions, gum irritation, gum recession, and other problems.

They also maintain that teeth whitening should only be done on a healthy mouth and that staff at the mall-based centers cannot do a physical examination to determine that.

The salons argue that they do not engage in dentistry since they don't administer the service.

Beach Bum CEO James Oliver also made the same argument when he told the Star-Ledger in November that Beach Bum Tanning simply sells the product and that their customers can either take the kit home or use a room at the salon equipped with a chair and blue light.

Beach Bum Tanning's legislative victory has been met with enthusiasm in some circles.

"The New Jersey win sets an important precedent for salons nationwide, as various dental groups have begun pursuing legal action in order to prevent tanning professionals from offering the popular ancillary product," according to a blog post on LookingFit.com. "Only time will tell how this affects the proceedings in other states -- as well as the likelihood of similar cases cropping up. However, with this solid win under our belt, the odds on our side have been strengthened."

The NJDA wrote in a statement to DrBicuspid.com that no decision was rendered on the merits of the case.

"The NJDA respectfully disagrees with the legal conclusion of the motion judge and has filed a notice of appeal with the Superior Court of New Jersey, Appellate Division," the NJDA stated.