Westphal v. Northcutt
Entrepreneurs Challenge Alabama’s Teeth-Whitening Monopoly
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?