By Kathy Kincade, Editor in Chief, Donna Domino, DrBicuspid.com features editor

April 30, 2013 -- A growing number of state laws are giving dentists a monopoly on providing teeth-whitening services in the U.S., according to a report released Tuesday by the Institute for Justice (IJ) and a related lawsuit filed by two nondentists who were prohibited from offering these services in Alabama.

As the teeth-whitening industry has expanded, so has the push for laws and regulations that control who can and can't offer teeth-whitening services, according to the IJ, a U.S. civil liberties law firm founded in 1991. The IJ's report claims this expansion of dental licensing is a form of "economic protectionism."

"In recent years, teeth whitening has exploded into an $11 billion industry encompassing products like gum and toothpaste, as well as services offered by dentists, salons, spas, and mall kiosks," the report states. "At the same time, state dental boards and dental associations have pushed for laws and regulations that would enable licensed dentists and hygienists to capture a greater share of that market by banning anyone else from offering teeth-whitening services."

Since 2005, at least 14 states have changed their laws or regulations to exclude all but licensed dentists, hygienists, or dental assistants from offering teeth-whitening services, according to the IJ. In addition, at least 25 state dental boards have ordered teeth-whitening businesses to shut down, while nine states have brought legal actions against such businesses.

To examine the risks of teeth-whitening businesses, the IJ reviewed complaints filed with state agencies over a five-year period.

"Consistent with scholarly research, the complaints show that risks are minimal," the IJ stated. Of 97 complaints provided by 17 states, only four reported consumer harm, according to the IJ. The rest of the complaints came primarily from dentists, state boards, dental associations, and hygienists.

"Since 2005, at least 30 states have taken action to shut down nondentist teeth whiteners," said Angela Erickson, the IJ researcher who wrote the report, in a news release. "The evidence is overwhelmingly clear that the pressure for this didn't come from consumers, it came from dentists and dental associations who have a financial stake in keeping others out of business."

Second related lawsuit

In a related lawsuit filed today in the Circuit Court for the 10th Judicial Circuit for Jefferson County, Alabama, two nondentists who were banned from offering whitening services to the public claim their entrepreneurial rights are being violated.

In 2011, Alabama amended the state's Dental Practice Act to declare teeth whitening to be the practice of dentistry, making it a crime, punishable by one year in jail and a $5,000 fine, for nondentists to offer teeth-whitening services.

Plaintiffs Keith Westphal and Joyce Osborn Wilson say the state banned them from offering Alabamans "a comfortable and clean place" to use the prepackaged teeth-whitening products they sell to customers. As a result, Wilson shut down her business and Westphal did not expand his North Carolina teeth-whitening business into Alabama.

Westphal and Wilson are "entrepreneurs who wish to sell legal, over-the-counter teeth-whitening products and provide customers with a clean, comfortable environment in which to apply those products to their own teeth," the suit states, noting that "It is perfectly legal to sell these products to customers who will use them at home without supervision or instruction." Wilson currently sells whiteners over the Internet, and her products are in lawful use in salons and spas in California, Florida, New York, Ohio, Pennsylvania, and Texas, according to the complaint.

Westphal wants to expand his teeth-whitening business from North Carolina to Alabama, but claims he cannot do so without risking fines and jail time because he is not a licensed dentist. He offers whitening services that cost $79 to $129. Westphal's products have a 16% concentration of hydrogen peroxide, but many commercially available products have hydrogen peroxide concentrations of 35% or higher, the suit states.

Teeth-whitening products are regulated by the U.S Food and Drug Administration as cosmetics and no prescription is required to buy them, according to the plaintiffs.

"Teeth whitening is safer than other oral procedures that are not regulated as the practice of dentistry, such as tongue piercing, which the ADA advises can lead to infections or cracked teeth," the suit states. "There is no evidence that Alabama's prohibition on nondentist teeth-whitening protects consumers or advances any other legitimate governmental interest. Rather, the primary effect of the law is to protect dentists who offer teeth-whitening services from competition, and "harms consumers by reducing competition and driving up prices."

Zach Studstill, executive director of the Alabama Dental Association, declined to comment, saying he hadn't seen the lawsuit yet.

"Alabama's prohibition on nondentist teeth whitening has nothing to do with protecting consumers and everything to do with protecting monopoly profits for dentists," said Arif Panju, an attorney at the IJ Texas chapter. "Teeth-whitening products are safe, and whatever minimal risks they carry are the same whether customers apply those products to their own teeth at home or at a mall or salon."

This is IJ's second lawsuit challenging a state teeth-whitening prohibition. In 2011, IJ filed a federal lawsuit challenging Connecticut's similar prohibition. That lawsuit is still ongoing.

Several other states, including Tennessee, Georgia, New Jersey, and New Mexico, have enacted similar legislation. And in North Carolina, the issue went so far that in 2010 the U.S. Federal Trade Commission (FTC) charged the state dental board with anticompetitive conspiracy. The board then sued the FTC, which subsequently ruled that the board had acted illegally. The board has since appealed that decision.


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