Ala. Supreme Court upholds teeth-whitening law

By Donna Domino, DrBicuspid.com features editor

June 19, 2015 -- The Alabama Supreme Court upheld a state law restricting nondentists from offering teeth-whitening products and services. The ruling issued on June 5 affirmed an earlier decision that such services are reasonably related to public health and safety.

The case stems from a 2013 lawsuit against the Alabama Board of Dental Examiners by Keith Westphal and Joyce Osborn Wilson, who claimed the law is an unconstitutional attempt by the state's 3,600 dentists to create a monopoly and an illegal restriction on business. The plaintiffs argued that the teeth-whitening agent they sell is available over the counter, and they do not apply the product to the customer's teeth but merely assist the customer in doing so.

In October 2014, an Alabama judge ruled the sale of teeth-whitening products and services constituted the practice of dentistry as defined by the state's Dental Practice Act, and the law's restriction on teeth-whitening is "substantially related to public health and welfare."

Potential adverse effects

In the ruling, the Alabama Supreme Court noted that some people have been injured by whitening chemicals, including peroxide burns and tooth sensitivity.

"Teeth whitening is a form of dental treatment that requires the application of a chemical bleaching agent directly to the customer's teeth. The evidence in the record indicates that the procedure is relatively safe but that it is not without potential adverse effects," according to the decision written by Justice James Allen Main.

Paul Sherman
Attorney Paul Sherman.

However, an attorney for the Institute for Justice (IJ), a U.S. civil liberties law firm that has filed several lawsuits on behalf of nondentists on the issue, said the ruling allows self-serving attempts by dentists to create a monopoly in the lucrative business.

"If you can buy and use these products at home with no prescription, no supervision, and no instructions, you should be allowed to apply these products to your own teeth at a mall or salon." IJ attorney Paul Sherman told DrBicuspid.com. Sherman represented Westphal and Wilson in the lawsuit.

Sherman noted the Alabama dental board's own expert conceded that the safety of applying teeth-whitening products to an individual's own teeth at home is no different than the safety of applying these products to their own teeth at a mall or salon. Sherman noted that testimony isn't mentioned in the opinion, and he is requesting the court to rehear the matter.

Cases differ

The ruling appears to contradict a February ruling by the U.S. Supreme Court, which held that the North Carolina state violated federal antitrust law when it directed nondentists to stop offering teeth-whitening services to their customers. That ruling upheld a complaint by the Federal Trade Commission (FTC), which said the actions of the North Carolina Board of Dental Examiners deprived consumers of the benefits of price competition and a choice of services.

“If you can buy and use these products at home with no prescription, no supervision, and no instructions, you should be allowed to apply these products to your own teeth at a mall or salon.”
— Paul Sherman, attorney, Institute for Justice

The FTC argued that although state entities are usually exempt from federal antitrust laws, the exemption did not apply because the board was not actively supervised by the state and it was made up of self-interested private businesses.

Sherman said the two cases differ because the North Carolina case concerned antitrust claims, and antitrust laws don't apply to state statutes such as Alabama's law.

Alabama's Dental Practice Act was amended in 2011 to expand the definition of "practice of dentistry" to include a person who performs teeth bleaching. Violations of Alabama's law are punishable by up to $5,000 in fines or a year in jail per customer.

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 30 state dental boards have ordered teeth-whitening businesses to shut down, while nine states have brought legal actions against such businesses.

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Last Updated hh 3/23/2016 9:58:53 AM

5 comments so far ...
6/19/2015 11:43:38 AM
MWDavisDDS
I believe attorneys representing the state dental boards are building their cases on abstract points of law, which will be argued against, w/ other abstract points of law. It might be far more effect to go directly to public welfare. 
 
You find a 1/2 dozen or so common citizens, who have developed severe tooth sensitivity after mall kiosk bleaching. We'd expect to see patients w/ gingival recession & root exposure, abfractions, & those w/ cervical caries. Have the DA's office, AG's office or dental board hold an open press conference, & issue press releases of the pain suffered by unsuspecting citizens. 
 
Let the mall victims say things in their own words. "My teeth never had such bad headaches, as after they bleached my teeth". Make the point, that none of this pain & suffering would likely happen w/ a dentist's examination, prior to teeth bleaching. Make the point that a doctor's exam is in the interest of the public safety & public welfare.
 
It's important to not only demonstrate a breach in the current statutes, but the damages to the public at large.
 
Michael W Davis, DDS
Santa Fe, NM 

6/19/2015 1:22:17 PM
Hershey
I don't see why people who are stupid enough to get dental procedures at a mall be allowed to do so. Are WE really afraid of this outcome? I used to think that dentists were free market capitalists, allowing courts and judges to "save" the public sounds more like a nanny state.
Let the stupid be stupid. Stop wasting court time with this crap

6/19/2015 10:03:25 PM
MWDavisDDS
Dear Dr Hirsch,
 
There is no laissez-faire wide open market capitalism, outside of 3rd world nations. Some degree of regulation is essential to protect the public interest. For example, FDA regulation disallows "downers" (already dead cattle) to enter a meat processing plant. We do not permit unlicensed physicians to preform open heart cardiac surgery in the States.
 
In the case of FTC rulings, I seriously doubt their interests center on free trade. Big government enjoys selecting one set of winners in the marketplace, over other interests (crony capitalism). 
 
Free market capitalism for dentistry is a myth. Dentistry is highly regulated, & has been for years. One requires a license, adherence to a state dental practice act & rules of a state dental board, there are federal HIPPA statutes, workplace OSHA requirements, credentialing for Medicaid, insurance carriers, hospital privileges, etc.
 
The government upsets the marketplace, when it imposes one set of rules on one trade group, while dismissing those rules on another trade group. Again, this defines crony capitalism. One trade group is given a substantial marketplace advantage, by government directives, rules & statutes, which it selectively imposes & enforces. 
 
BTW- this is a great discussion, Dr Hirsch. Believe me, this discourse is far beyond the understandings of most government regulators. Sadly, I'm serious. 
 
Michael W Davis, DDS
Santa Fe, NM

6/20/2015 6:06:19 AM
Hershey
No good deed or well intentioned idea goes unpunished.
I agree that composing an article expaining what the dental regulations has done to access and delivery of oral health care services is necessary. I'll agree that regulators are clueless but I'll also throw in that most dentists are not aware of the ramifications of our said monopoly.
Get T Edwrds to connect us. I'll pen something.

4/22/2019 8:01:44 PM
Larrybur
Is any one here familiar with the well known established principal the free and open competition is the only path to lowest costs and highest quality for consumers?