Federal Court Upholds Dental Monopoly on Teeth Whitening

ATLANTA—Today, Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia upheld a policy of the Georgia Board of Dentistry that grants dentists a lucrative monopoly on teeth-whitening services. Georgia’s policy was challenged in a lawsuit filed in December 2014 by teeth-whitening entrepreneur Christina Collins and the Institute for Justice (IJ).

IJ Senior Attorney and lead counsel Paul Sherman said, “The Dental Board’s policy has nothing to do with safety, and everything to do with protecting licensed dentists from honest competition. Today’s ruling is wrong on the law and harms entrepreneurs and consumers throughout the state.”

Until 2014, Christina had a successful teeth-whitening business in Savannah, Ga., selling over-the-counter teeth-whitening products at a salon in which she provided her customers a clean, comfortable place to apply the products to their own teeth. Despite the fact that products identical to those Christina sold are widely available for purchase without a prescription, the Dental Board has said that she and other teeth-whitening entrepreneurs are engaged in “the unlawful practice of dentistry”—a felony punishable by up to five years in jail and up to $500 in fines per customer. In August 2014, the Dental Board ordered Christina to shut down her business or face punishment.

Judge May’s opinion held that the Board’s order did not violate the Constitution. Adopting an extremely expansive view of the state’s regulatory power, the ruling means that non-dentists are prohibited from offering teeth-whitening services in Georgia, even if those services consist of nothing more than selling customers an over-the-counter product and providing them with a clean, comfortable place to apply the product to their own teeth.

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IJ client Christina Holton said, “I was shocked when the Dental Board shut me down, and I really hoped that the court would protect my rights. All I want to do is earn an honest living offering a useful and safe service.”

Georgia is one of a number of states that have granted dentists a lucrative monopoly on teeth whitening. As the Institute for Justice documented in its 2013 report, White Out: How Dental Industry Insiders Thwart Competition from Teeth-whitening Entrepreneurs, at least 30 states have taken action to shut down non-dentist teeth whiteners. In 2015, the U.S. Supreme Court held that the North Carolina State Board of Dental Examiners could be held liable under federal antitrust law for similar efforts to stifle competition by non-dentist teeth whiteners

Sherman said, “What’s happening in Georgia is part of a much larger nationwide problem. Dental boards across the country are using government power, not to protect the public, but to protect themselves from honest competition. That sort of economic protectionism is unconstitutional, and the court’s failure to recognize that is a threat to all entrepreneurs in the state of Georgia.”

IJ will continue to work in Georgia and across the country to cut licensing board red tape through the courts and legislative reform. Hardworking entrepreneurs should be able to earn an honest living free from excessive regulation and economic protectionism.

To learn more about this case, visit http://ij.org/case/georgia-teeth-whitening/. Founded in 1991, the Institute for Justice is the national law firm for liberty

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