April 29, 2014 -- A lawsuit has been filed by a teeth-whitening entrepreneur and the Institute for Justice (IJ) challenging the Georgia Board of Dentistry's rule prohibiting nondentists from doing teeth whitening.
The suit was filed was filed April 2 in the U.S. District Court for the Northern District of Georgia challenging the dental board's "irrational and protectionist monopoly prohibiting nondentists from the business of teeth whitening," according to the IJ.
Similar to businesses that have popped up across the U.S., Trisha Eck's teeth-whitening business in Warner Robbins, GA, sold over-the-counter teeth-whitening products and instructed customers on how to apply the products to their own teeth.
This month, Eck received a cease-and-desist order from the Georgia dental board, ordering her to shut down her business or face up to five years in jail and up to $500 in fines per customer, the IJ said.
"The dental board's actions have nothing to do with safety and everything to do with protecting licensed dentists from honest competition," said IJ attorney Larry Salzman, lead counsel on the case. "The FDA regulates teeth-whitening products as cosmetics. But dentists routinely charge up to five times more for teeth-whitening services than do nondentist teeth-whitening entrepreneurs like Trisha, and that is why she has been targeted."
In recent years, teeth whitening has mushroomed into an $11 billion industry, encompassing products such as gum and toothpaste, as well as services offered by dentists, salons, spas, and mall kiosks, according to a 2013 IJ report.
"I sold the same products that people use at home every day. It is unfair that I was threatened and put out of business for selling teeth-whitening products when anyone can buy them legally in stores and online," Eck said, according to the IJ statement.
Georgia is not the only state to crack down on competition from nondentist teeth whiteners. 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. And at least 25 state dental boards have ordered teeth-whitening businesses to shut down, including Georgia's dental board, according to an IJ report, "White Out."
These restrictions have led to litigation throughout the country, and the IJ is currently representing other teeth-whitening businesses challenging teeth-whitening prohibitions in Connecticut and Alabama.
In March, the U.S. Supreme Court agreed to hear a case brought by the Federal Trade Commission (FTC) against the North Carolina Board of Dental Examiners for violating federal antitrust law by sending cease-and-desist letters to nondentist teeth whiteners.
The North Carolina board has lost several appeals of the FTC's decision, including a May 2013 ruling by the U.S. Court of Appeals in the Fourth Circuit in Richmond, NC, which upheld the right of nondentists to offer teeth-whitening products and services in the state.
The ADA is supporting efforts of the North Carolina dental board in the dispute and has hired an attorney to file briefs to the Supreme Court to review an appellate court's decision. At least 10 state attorneys general have filed briefs to the high court supporting the dental board.
IJ attorney Paul Sherman said, "This is not just a problem in Georgia -- this is a nationwide problem. Across the country, dental boards are using government power to shut down entrepreneurs and insulate themselves from honest competition. When that happens, federal courts have the power and the duty to put a stop to it."
"What Georgia's Dental Board is doing is not just bad policy, it's unconstitutional," Salzman added. "The Constitution protects the right of every American to earn an honest living in the occupation of her choice, subject only to reasonable government regulation. We intend to vindicate that principle to free Trisha and other entrepreneurs in Georgia and across the southeast to pursue their American dream."