Non-dental launderers claim that this is a classic case of institutional suppression of the freedom to conduct a business under the pretext of protecting public health. They say the American Dental Association (ADA) and various state dental associations are trying to take over the booming market by passing laws that treat teeth whitening as a dental procedure. The fact that dentists` objections to other teeth whitening service providers are based on vested interests – not the public interest – is supported by the fact that of the 97 complaints in 17 states analyzed in the IJ report, only four came from consumers, “all reversible side effects common to teeth whitening wherever performed.” The remaining 93 were all dentists, dental hygienists, dental associations and state dental associations (i.e. , those who had a financial interest at stake) who complained about the alleged “unauthorized practice of dentistry”. Teeth whitening procedures performed in non-dental settings such as kiosks, spas, and salons use chewing gum and rinses containing bleaching agents such as carbamide peroxide and hydrogen peroxide. Procedures can cost $100 or more, but the same procedures performed by dentists incur fees of more than $350. Do you clean dogs` teeth for payment as part of a grooming service? They could clash with the state`s veterinary office, which includes four veterinarians and a veterinary technician. The board treats teeth cleaning with anything but a toothbrush as a veterinary drug — and the unauthorized practice is a crime punishable by up to a year in prison. The February ruling means that “the vast majority of commissions and panels in all 50 states are untenable and illegal,” said Robert Fellmeth, a veteran antitrust expert who is executive director of the Center for Public Interest Law at the University of San Diego School of Law. The court concluded, he said, that “the king has not worn any clothing in the last 72 years.” With so much potential revenue, it`s no wonder dentists and dental associations have lobbied to shut down independent teeth whitening businesses. Since the early 2000s, 14 states have changed their laws and imposed bans on everyone except dentists, hygienists, and licensed dental assistants who perform teeth whitening procedures.
In at least a dozen other states, dental associations have also attempted to pass such laws. The North Carolina case involved a successful attempt by the state dental board to eliminate teeth whitening services by non-dentists. The council called whitening a practice of dentistry and issued 47 cease and desist letters warning vendors that they were committing a crime, and even urged mall operators to evict teeth whitening kiosks from their premises. Commercial services disappeared, but the Dental Association was sued by the Federal Trade Commission. But did you know that teeth whitening in Connecticut, Alabama and many other states can result in several years in prison and thousands of dollars in fines? The Supreme Court`s ruling could introduce sweeping changes to state licensing laws, antitrust immunity for interest groups and the power of private licensing agencies. At the same time, the court must also consider public health and safety issues. If teeth whitening is removed from the jurisdiction of dental offices, it could set a precedent for other cosmetic procedures. Teeth whitening and whitening procedures are driving the growth of the U.S. dental hygiene market. Teeth whitening alone accounts for an $11 billion business.
However, all is not well in this lucrative sector. The battle lines between non-dentists and dentists, first drawn in 2005, are deepening by the day. In the end, the Supreme Court upheld an antitrust lawsuit against the board. The court ruled that a North Carolina dental regulatory board did not enjoy state immunity in an antitrust trial. Decision 6-3 allows the FTC to challenge cease and desist orders from advice on teeth whitening by non-dentists. Teeth whitening services have become an integral part of the health and wellness industry. Entrepreneurs, salon owners and mall kiosk operators are successfully providing basic teeth whitening kits and services. But in recent years, dental associations have encouraged state lawmakers to fend off the explosion of teeth whitening products and services, which represent an $11 billion industry. For Illinois dentists and dentists, however, the battle over who can perform teeth whitening services was largely averted in 2009 with a small change in state law.
Despite strong objections from the Illinois Board of Dentistry, Illinois lawmakers have paved the way for consumers to receive teeth whitening services without going to the dentist. In 2010, the Federal Trade Commission (FTC) ruled that the North Carolina Board of Dental Examiners acted inappropriately to harm competition by sending cease and desist letters to 42 teeth whitening suppliers and deterring mall owners. The State Committee`s decision not to seek judicial intervention and to unilaterally issue injunctions to non-dentists led the FTC to characterize its actions as an “anti-competitive conspiracy.” When people violate North Carolina law by practicing dentistry without a license, the board sends letters to non-dental providers saying their activities constitute an illegal practice of dentistry. They ask these non-dental providers to refrain from doing so. This practice has led to the exclusion of non-dental teeth whiteners in North Carolina. The U.S. Food and Drug Administration classifies peroxide-based teeth whiteners as cosmetics, not controlled substances. A recent study found that out of 97 health and safety complaints filed in 17 states over a five-year period, only 4 reported consumer harm related to teeth whitening products, and all 4 were common, reversible side effects of peroxide product use. Based on this information, the minimal risks associated with teeth whitening in a salon or other store are no different from using a store-bought DIY kit. Perhaps as a result of this clear data, the American Dental Association (ADA) itself no longer comments on or supports state-level attempts to ban teeth whitening services of any kind. This phenomenon is hardly limited to dentists and teeth whitening.
Indeed, in a wide range of professions – from lawyers to interior designers to African hairdressers – it is quite common for complaints about the performance of a particular service to come almost exclusively from practitioners who are afraid of competition – and not from consumers. In the majority opinion (pdf), Justice Kennedy wrote that the board does not have state immunity because North Carolina does not say whether the ban on unauthorized practice of dentistry includes teeth whitening. “If a state agency has a number of active market participants in the composition it regulates,” Kennedy said, “antitrust immunity from government action can only be invoked if two conditions are met: (1) the contested restriction on trade is clearly articulated and expressed affirmatively as state policy, and (2) the policy is actively monitored by the state.” The decision “ignores what should be obvious to everyone: It`s unconstitutional to require someone to have eight years of higher education before they can point a flashlight at someone`s teeth,” said IJ lead counsel Paul Sherman, lead counsel in the case. “Connecticut`s policy had nothing to do with public health and safety and only serves to make life difficult for entrepreneurs who wanted to make an honest living with teeth whitening services.” Trisha Eck, owner of Tooth Fairies Teeth Whitening in Georgia, started her own business to provide a place where customers could buy their products as home kits or apply the products themselves during their visit to the spa. She never performed the treatments on the clients; She simply offered a place to buy the products and, if customers wished, a clean place to apply them. However, state regulators sent Eck a cease and desist order from the Georgia Board of Dentistry after an investigator ruled that his company was an unlicensed dental practice.