Written By: Eve Pearce
There is a growing storm over the practice of teeth whitening and who should be allowed to administer treatments. Formerly the preserve of dentists and hygienists, the beauty and lifestyle industry has sunk its teeth into offering this service to their customers and it is growing in popularity. It appears that the dental profession is unhappy with this trend and is pushing for state legislation to ban teeth whitening by anyone other than a qualified profession in the dental industry. Since 2005, at least 14 states have made it illegal to offer the service if you are not a dental professional; more than 25 state dental boards have ordered the closure of businesses offering the service and 9 states have brought actions against such businesses.
Lip Service to Free Trade
What lies at the bottom of this would seem to be blatant protectionism on the part of the dental industry, which sees its monopoly on such non-invasive, non-surgical services being eroded by other industries. The figures add up to an US$11 billion windfall which dental associations are determined to retain control over and the only way they can do this is to lobby (successfully) for legislation barring non-professionals from providing the service. However, there may be considerations other than self-preservation on the part of the dental industry and perhaps the question should be asked as to whether or not, in the case of something going wrong with the treatment, a non-dental professional would be able to provide the same assurances and remedial treatment as a dentist or hygienist? Quotezone dental insurance would be a good starting point to find dental companies which would cover the customer for such treatments. Would the customer be covered under their private dental insurance either for the whitening, which is after all a cosmetic procedure and perhaps not considered necessary, or for any work required as a result of such a procedure causing problems with, for instance, the gums? Anyone looking to undergo teeth whitening would be as well to make sure that their dental insurance covered them whether the procedure was to be carried out at a spa or salon or a dental surgery.
Aside from the professional insurance and indemnity angle, the other burning question is whether or not the procedure is safe. A review of complaints received by state agencies over a 5 year period indicated that out of 97 complaints filed by 17 states, a mere 4 were reports of harm to the consumer. The other 93 were primarily from dentists, hygienists, state boards and dental associations. The latest case to hit the headlines is that of a lawsuit taken by Keith Westphal and Joyce Osborn Wilson against the State of Alabama (which incidentally amended state legislation in 2011 to make teeth whitening the sole preserve of dentists) for violating due process and equal protection clauses of Alabama constitution. Law advocates in other states have argued that teeth whitening is a medical procedure and it should be performed by a licensed dentist. This is in the face of the stance of the US Food and Drug Administration, which regulate whitening products and categorizes them as cosmetics which do not require prescription to buy. The suit against the State of Alabama states that teeth whitening is safer than other oral practices which do not require regulation, such as tongue piercing; it also states that there is no evidence to support Alabama’s prohibition that it either protects consumers or advances any other legitimate governmental interest. The suit further says that the primary effect of such prohibition is to harm the consumer by reducing competition and increasing prices.
The Institute for Justice, a US civil liberties law firm founded in 1991, is representing the plaintiffs in the suit against Alabama and is also representing plaintiffs in a similar lawsuit against the State of Connecticut, which was filed in 2011 and is still ongoing. In North Carolina the US Federal Trade Commission (FTC) charged the state dental board with anti-competitive conspiracy for enacting similar legislation. The dental board then sued the FTC and it was subsequently ruled that the board had acted illegally. This decision is currently under appeal.