Alabama Teeth-Whitening - Backgrounder

Litigation Backgrounder

Alabama Smiles:

Entrepreneurs Fight Back Against Teeth-Whitening Monopolies

 

The Issue in a Nutshell

Teeth-whitening services are popular and increasingly available at spas, salons and shopping malls. Like many entrepreneurs, Keith Westphal and Joyce Osborn saw this demand and sought to meet it; both sold over-the-counter whitening products and provided a clean, comfortable place for customers to apply the product to their own teeth, just as they would at home. But in Alabama, Keith and Joyce could face jail time and crippling fines for selling the same products sold in stores or online.
 
 
A recent amendment to Alabama’s Dental Practice Act has made it a crime punishable by one year in jail and a $5,000 fine for anyone but a licensed dentist to offer the type of teeth-whitening services Keith and Joyce each offer. Unwilling to risk thousands of dollars in fines and time in jail, Joyce stopped distributing teeth-whitening products in Alabama, and Keith has been prohibited from expanding his North Carolina-based business into the Cotton State.
 
 
There is no health or safety reason to restrict the sale of teeth-whitening products to licensed dentists. In fact, teeth-whitening products are regulated by the FDA as cosmetics, which mean anyone—even a minor—can purchase them and apply them to their own teeth without a prescription and without supervision or instruction.
 
 
The real explanation for Alabama’s new restrictions on teeth-whitening services is old-fashioned special-interest politics. Dentists routinely charge four times as much (or even more) than non-dentists for teeth-whitening services similar to those offered by Keith and Joyce. So the dental cartel, rather than try to compete by lowering prices or improving their services, is teaming up with the government to put their competition out of business.
 

Alabama’s prohibition on non-dentist teeth whitening isn’t just bad policy that harms entrepreneurs and consumers—it’s unconstitutional. The Alabama Constitution protects the right to earn an honest living free from unreasonable regulations designed solely to benefit special interests. That’s why on April 30, 2013, the Institute for Justice teamed up with teeth-whitening entrepreneurs Keith Westphal and Joyce Osborn to file a constitutional lawsuit in Alabama state court to vindicate their right to earn an honest living.
 
 
With Alabama’s unemployment rate above seven percent, this case raises a constitutional question of vital importance: May the government prohibit entrepreneurs from selling safe, over-the-counter products that people use at home every day just to protect a group of politically favored insiders from honest competition?
 
 
 
 
 
Introduction

There has been explosive growth in the market for teeth-whitening services in the United States over the past few years.  Previously available only through dentists, whitening services are increasingly available at spas and salons, and teeth-whitening kiosks and stores are opening up in shopping malls across the country.  The Council for Cosmetic Teeth Whitening estimates that teeth-whitening is now an $11 billion/year industry.
[1]

Although practices vary among companies, teeth-whitening businesses generally provide customers with a prepackaged, peroxide-based teeth-whitening product and a comfortable, clean environment in which to use the product.  Most companies do not actually touch their customers, but instead instruct their customers on how to apply the products to their own teeth, just as they would at home.  These businesses sometimes also position (or allow the customer to position) a safe LED “enhancing light” in front of a customer’s teeth.

When performed in this manner, teeth whitening is unquestionably safe.  The FDA regulates teeth-whitening products as cosmetics, meaning that anyone is permitted to purchase them and apply them to their own teeth without a prescription and without supervision or instruction.  The American Dental Association states that the most common side effects are temporary tooth sensitivity or gum irritation[2] and at least one study has concluded that orange juice is more damaging to tooth enamel than are common teeth-whitening products.[3]  Teeth whitening is also far safer than other cosmetic oral procedures like tongue piercing, which the American Dental Association advises can lead to infections or cracked teeth[4] and which are generally unregulated.  More importantly, whatever minimal risks teeth whitening carries are the same whether a customer applies the product to their teeth at home, at a salon or at a shopping mall. 

The increasing availability of teeth-whitening services has benefited consumers, because these businesses offer effective whitening services at a much lower cost than dentists do.  In Alabama, dentists often charge more than four times as much for teeth-whitening services than do non-dentists who offer whitening services in malls or salons.  The growth of teeth whitening has been great for entrepreneurs, too, whether as the basis of a stand-alone business in a mall storefront or kiosk, or as an extra income stream for the owners of spas and salons.


Evolution of a Cartel in Alabama
 

There’s one group, however, that isn’t smiling about the increasing availability of low-cost teeth-whitening services:  dentists.  Teeth whitening is a lucrative component of many dental practices.  According to a 2008 Gallup Poll, more than 80 percent of dentists offer teeth-whitening services[5] and the American Academy of Cosmetic Dentists reports that in 2006 AACD dentists performed an average of 70 teeth-whitening procedures each year for average annual revenue of $25,000.[6]  That works out to more than $350 per procedure. 
 

With non-dentist teeth-whitening businesses charging $150 or less for similar services, dentists are feeling the pinch, and state dental associations have lobbied hard to shut down their low-cost competitors.  In response, dental boards in several states have ruled that only
dentists may provide teeth-whitening services.[7]

The Alabama Board of Dental Examiners is one of the latest state boards to crack down on teeth-whitening by non-dentists.  As is typical of such boards, Alabama’s is made up primarily of practicing dentists; six of the seven positions on the Board are reserved for dentists, with an additional position for a dental hygienist.[8]  Of the six dentists currently serving on the Board, only two—an orthodontist and a retired dentist—don’t offer teeth-whitening services.  So it’s not surprising that in 2008 the Board began ordering non-dentists to stop offering teeth-whitening services. 
 

In 2011, the Alabama legislature ratified the Dental Board’s position by amending the Alabama’s Dental Practice Act to effectively give dentists a monopoly on the provision of teeth-whitening services. The new law prohibits the “bleaching of the human teeth” by non-dentists, and even makes it illegal if a non-dentist “instructs the public … in the use of any teeth bleaching product.”[9]  That means that a non-dentist who simply sells customers an over-the-counter product and instructs them on how to apply it to their own teeth is engaged in the unlicensed practice of dentistry—a crime in Alabama punishable by up to one year in jail and civil fines of up to $5,000 per customer.[10]


Alabama Entrepreneurs Under Attack
 

Keith Westphal is a teeth-whitening entrepreneur from North Carolina who wants to expand his successful business throughout the south, starting with Alabama.  Like other non-dentist entrepreneurs, Keith offers his customers a prepackaged teeth-whitening product for as low as $79 and instructs them on how to apply the product to their own teeth.  He also provides his customers with a comfortable chair to sit in while using the product, including an enhancing light, which the customers position in front of their own teeth.  His company has loads of satisfied customers and he was planning on offering his services to customers in Alabama.  But in response to Alabama’s ban on non-dentist teeth whitening, Keith has had to put his plans on hold.

Alabama resident Joyce Osborn Wilson has a similar story.  Joyce has been a pioneer in the teeth-whitening business since 2004.  She is also the current president of the Council for Cosmetic Teeth Whitening, an industry group that represents the interests of non-dentists teeth whiteners and opposes efforts by dental boards to monopolize the industry.  Before the Alabama Board of Dental Examiners began enforcing its prohibition on non-dentist teeth whitening, her company, Bright White, provided teeth-whitening products to entrepreneurs throughout the state.  Like Keith, Joyce’s teeth-whitening services were limited to providing customers a prepackaged teeth-whitening product, instructions on how to apply the product to their own teeth, a chair to sit in while using the product, and an enhancing light.

Keith and Joyce want to compete in the marketplace and bring jobs to Alabama, but not if it means risking tens of thousands of dollars in fines and potentially serving time in jail. At a time when unemployment in Alabama is rising above seven percent,[11] government should be getting out of the way of entrepreneurs like Keith and Joyce, not shutting them down to benefit licensed dentists.


Teeth-Whitening Protectionism: A Nationwide Problem

Unfortunately, Alabama isn’t alone in granting licensed dentists a lucrative monopoly teeth whitening.  In a new report, “White Out: How Dental Industry Insiders Thwart Competition from Teeth-Whitening Entrepreneurs,” the Institute for Justice has documented the nationwide growth of laws that prohibit teeth-whitening services like Keith’s and Joyce’s.[12]  Through analysis of records from dental boards, dental associations and state legislatures, the report documents that, overwhelmingly, dental-industry interests, not consumers, are lobbying for restrictions that shut down teeth-whitening businesses in malls and salons.
 

Since 2005, at least 14 states have changed laws or regulations to exclude all but licensed dental professionals from offering teeth-whitening services.  Meanwhile, at least 25 state dental boards have ordered teeth-whitening businesses to shut down, often with the threat of criminal penalties and fines, while nine states have brought legal actions against entrepreneurs.
 
               
The report also examines the risks of teeth-whitening businesses by reviewing complaints filed with state agencies over a five-year period.  Consistent with scholarly research on teeth whitening done in dental offices and at home, the complaints show the risks are minimal.  Of the 97 complaints about non-dental teeth whitening provided to the Institute for Justice from 17 state agencies, only four were consumer complaints, all reporting reversible side effects common with teeth whitening wherever it is done.  The remaining 93 complaints came from dentists, hygienists, dental boards, associations and anonymous individuals who alleged not consumer harm, but that these entrepreneurs, by offering teeth-whitening services, were practicing dentistry without a license
.

What’s happening in the teeth-whitening industry is part of a troubling trend of people in licensed occupations using government power to monopolize lucrative sub-fields.  In multiple states, for example, state cosmetology boards have attempted to require eyebrow threaders or African hair-braiders to attend cosmetology school before they can offer their services even though cosmetology schools don’t even teach braiding or threading.[13]  Similarly, a recent study of all 65 dental schools in North America found that not one had any clinicial requirement for teeth whitening, meaning that it is possible to graduate from dental school without ever having performed a single teeth-whitening procedure.[14]


Legal Challenge:  The Constitutional Right to Earn an Honest Living


It may not be surprising that a dental board made up of practicing dentists would enforce a regulation that insulates dentists from competition.  After all, as one federal court observed, “[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”[15]  But just because such special-interest politics is common doesn’t make it constitutional.

The Alabama Constitution protects an individual’s right to earn a living in the occupation of their choice free from arbitrary or unreasonable government interference.  Under the state constitution’s Due Process and Equal Protection guarantees, the Alabama Board of Dental Examiners’ enforcement of the Alabama Dental Practice Act is unconstitutional as applied to services like Keith’s and Joyce’s, which simply involve selling an over-the-counter product that customers apply to their own teeth.

Alabama’s constitution requires that all restrictions on economic liberty be reasonable, meaning there has to be some fit between the harm the government is attempting to prevent and the means it has chosen to prevent that harm.  In 2007, the Alabama Supreme Court applied this test to invalidate an Alabama law that restricted who could offer interior-design services, finding that the law “impose[d] restrictions that [were] unnecessary and unreasonable upon the pursuit of useful activities.”[16]  Similarly, in this case, Alabama’s prohibition on non-dentist teeth whitening is unreasonable because the burdens it imposes on entrepreneurs—requiring them to attain eight years of higher education at a cost of tens of thousands of dollars—bear no reasonable connection to the trivial risks associated with instructing customers on how to use over-the-counter teeth-whitening products.

Alabama’s prohibition on non-dentist teeth whitening also violates the equal-protection provisions of the Alabama Constitution because it draws an irrational distinction between teeth-whitening services performed at a salon, spa, or shopping mall and teeth whitening performed at home.  In both cases it is the customers who apply the product to their own teeth; the only difference is the setting in which the teeth-whitening product is applied.  Yet the Alabama Board of Dental Examiners treats teeth whitening at a mall or salon as the unlicensed practice of dentistry—a crime—while leaving home whitening completely unregulated.

The only interest advanced by the prohibition against teeth-whitening entrepreneurs is in insulating licensed dentists from honest competition.  But that is not a legitimate use of government power.  That’s why Keith and Joyce have joined the Institute for Justice to fight back.  Their case, Westphal v. Northcutt, filed on April 30, 2013, seeks to vindicate not just their right to earn an honest living, but the right of all Alabama citizens to pursue their American Dream in the occupation of their choice.



The Plaintiffs
The plaintiffs in this case are Keith Westphal and Joyce Osborn Wilson.  Keith is a resident of Mooresville, North Carolina.  But for Alabama’s ban against non-dentist teeth-whitening entrepreneurs, Keith would immediately expand his successful business into Alabama and begin providing teeth-whitening services to Alabama customers.  Joyce Osborn Wilson is a resident of Guntersville, Alabama.  If it were not for Alabama’s prohibition against non-dentist teeth-whitening entrepreneurs, she would immediately resume selling her Bright White teeth-whitening products for use in spas and salons.
 


The Defendants
The defendants in this case are J. David Northcutt, III, DMD; Bobby R. Wells, DMD; Stephen R. Stricklin, DMD; Thomas T. Willis, DMD; Sam J. Citrano, Jr. DMD; William Chesser, DMD; and Sandra Kay Alexander, RDH.  They are sued in their official capacities as members of the Alabama Board of Dental Examiners.



The Institute for Justice:  20 Years of Protecting Economic Liberty
Founded in 1991, the Institute for Justice is the nation’s law firm for liberty.  IJ engages in cutting-edge litigation and advocacy to defend individual rights nationwide, including economic liberty.  Among IJ’s economic liberty victories are: 
  • Saint Joseph Abbey, et al. v. Castille, et al.In August 2010, the Institute for Justice teamed up with the monks of the Saint Joseph Abbey to challenge the constitutionality of Louisiana’s requirement that the monks must be licensed as funeral directors in order to sell their handmade wooden caskets. The Institute won at the trial court level and the decision was upheld by the Fifth U.S. Circuit Court of Appeals.
  • Swedenburg v. Kelly—In May 2005, the Institute for Justice won an important economic liberty case before the U.S. Supreme Court, striking down a protectionist law that granted monopoly power to distribute wine to large, politically connected liquor wholesalers. 
  • Craigmiles v. Giles—The Institute for Justice secured a federal court victory striking down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously in December 2002 by the Sixth U.S. Circuit Court of Appeals and not appealed.  This marked the first federal appeals court victory for economic liberty since the New Deal.
  • Clayton v. Steinagel—In August 2012, the Institute for Justice succeeded in striking down Utah’s hairbraiding law as unconstitutional on behalf of Jestina Clayton.  A Utah federal court ruled that “Utah’s cosmetology/barbering licensing scheme is so disconnected from the practice of African hairbraiding, much less from whatever minimal threats to public health and safety are connected to braiding, that to premise Jestina’s right to earn a living by braiding hair on that scheme is wholly irrational and a violation of her constitutionally protected rights.”

This is IJ’s second challenge to a state teeth-whitening ban.  IJ is also representing teeth-whitening entrepreneurs in Sensational Smiles LLC v. Mullen, a federal constitutional challenge to the Connecticut Dental Commission’s rule that only licensed dentists can offer teeth-whitening services. 



The Litigation Team
The lead attorney in this case is Institute for Justice Attorney Paul Sherman, who litigates economic liberty and First Amendment cases throughout the nation.  He is joined by Institute for Justice Texas Chapter Attorney Arif Panju.  They will be joined by local counsel Charles Paterson, of the law firm Balch & Bingham LLP in Birmingham, Alabama.
 
For more information contact:
 
Shira Rawlinson
Assistant Director of Communications
Institute for Justice
(703) 682-9320 ext. 229


[1] Colleen Shaddox, Dental Board to Rule if Tooth Whitening is Dentistry, Connecticut Health I-Team, March 24, 2011, http://newhavenindependent.org/index.php/health/entry/dental_board_to_rule_/.

[2]  American Dental Association, Statement on the Safety and Effectiveness of Tooth Whitening Products (Feb. 2008), available at http://www.ada.org/1902.aspx.

[3 See Orange Juice Worse For Teeth Than Whitening Agents, Study Finds, ScienceDaily, June 30, 2009, http://www.sciencedaily.com/releases/2009/06/090630132007.htm.

[4] American Dental Association, Oral Health Topics: Oral Piercing, http://www.ada.org/3090.aspx (last visited Nov. 10, 2011).

[5] Complaint Counsel’s Proposed Final Stipulations of Law, Fact, and Authenticity, In re N.C. Bd. Of Dental Exam’rs, at 7 (No. 9343), available at http://www.ftc.gov/os/adjpro/d9343/110208ccproposedfinalstip.pdf.

[6]Complaint Counsel’s Memorandum in Support of its Motion for Partial Summary Decision, In re N.C. Bd. Of Dental Exam’rs, at 6–7 (No. 9343), available at http://www.ftc.gov/os/adjpro/d9343/101108northcarolinacmpt.pdf.

[7] State dental boards have not been unanimous on this.  Ohio’s dental board recently held that teeth-whitening like that described above is generally not the practice of dentistry.  See Ohio State Dental Board, Policy Regarding Bleaching Services Offered in Mall Kiosks & Salons by Non-Licensed Dental Personnel (Feb. 27, 2008), available at http://www.dental.ohio.gov/bleaching.pdf.

[8] Ala. Code § 39-9-40.

[9] Ala. Code § 34-9-6(12).

[10] Ala. Code § 34-9-5.

[11] Antrenise Cole, Alabama’s unemployment rate rose to 7.2 percent, Birmingham Business Journal, March 29, 2013,http://www.bizjournals.com/birmingham/news/2013/03/29/alabamas-unemployment-rate-rose-to.html.

[12] www.ij.org/white-out

[14] Kevin Frazier & Van Haywood, Teaching Nightguard Bleaching and Other Tooth-Whitening Procedures in North American Dental Schools, 64 J Dent. Educ. 357 (2000).

[15] Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).

[16] State v. Lupo, 984 So. 2d 395, 406 (Ala. 2007) (quotation marks and citation omitted).


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