Dentists vs. Smiles

Lisa Martinez is an entrepreneur from Ledyard, Conn. Looking for a job that would let her be her own boss and give her a flexible schedule to spend time with her young children, Lisa opened up a teeth-whitening boutique in a shopping mall. There she sold an over-the-counter teeth-whitening product and instructed her customers on how to apply it to their own teeth, just as they would at home. This was a boon for her customers, because Lisa charged only about 25 percent of what a dentist would charge for similar services.

Any longtime IJ supporter can probably guess what happened next.

In a classic example of economic protectionism, the Connecticut Dental Commission issued a declaratory ruling that only licensed dentists may offer teeth-whitening services. Violating the ruling could get Lisa charged with the unlicensed practice of dentistry, a felony offense punishable by up to five years in jail, per customer, or up to $25,000 in civil fines.

Even though millions of Americans use identical teeth-whitening products at home every day, Lisa had no choice but to close down her successful business. Lisa now works as a flight attendant, a job that pays less and requires her to spend time away from her family.

Lisa’s story is, unfortunately, not unique; dental boards across the country have started cracking down on non-dentist teeth whitening in an effort to monopolize this lucrative subfield.

But when the Connecticut Dental Commission went after Lisa, they may have bitten off more than they can chew. Now, with help from the Institute for Justice, Lisa is fighting back. On November 15, 2011, IJ filed a lawsuit in federal court on behalf of Lisa and Smile Bright, a teeth-whitening company owned by Connecticut entrepreneurs Steve Barraco and Tasos Kariofyllis, to strike down Connecticut’s dental monopoly on teeth whitening.

The Dental Commission’s ruling violates the 14th Amendment to the U.S. Constitution, which protects the right to earn an honest living subject only to reasonable government regulation. And the Dental Commission’s ruling is patently unreasonable. The FDA regulates teeth-whitening products as cosmetics, which means that anyone, even a child, can buy the strongest commercially available teeth-whitening product and apply it to his or her own teeth with no prescription, no supervision and no instruction.

These products are also safe; the American Dental Association states that the most common side effects are temporary tooth or gum sensitivity. More importantly, whatever minor risks come along with teeth whitening are exactly the same whether a person applies those products to his or her own teeth at home or at a shopping mall or salon.

The real reason for the Dental Commission’s ruling is to protect licensed dentists from honest competition. But, as IJ has established in our groundbreaking litigation on behalf of hairbraiders, casket retailers and others, that is not a legitimate use of government power.

Although Lisa’s fight is just beginning, the case has already garnered national media attention, including coverage in The Wall Street Journal and Associated Press, and dental boards across the country are on notice that IJ is watching them. As a result, a victory in this case could have implications for teeth-whitening entrepreneurs nationwide. Now that’s something to smile about.

Paul Sherman is an IJ attorney.