White Out: Dentists vs. Smiles

June 3, 2013

Everyone wants an attractive smile, which is why teeth whitening is a rapidly growing industry. But thanks to lobbying by licensed dentists, Alabama—like a growing number of states—has made it a crime to sell teeth-whitening products, even if customers apply those products to their own teeth.

Now, two teeth-whitening entrepreneurs are fighting back.

Keith Westphal is a North Carolina entrepreneur who wants to expand his successful teeth-whitening business into Alabama. He sells customers over-the-counter teeth-whitening products and provides customers with a clean, comfortable environment to apply that product to their own teeth, just as they would at home. Joyce Osborn Wilson of Guntersville, Ala., wants to follow the same business model. Joyce has been a pioneer in the teeth-whitening industry and is the president of the Council for Cosmetic Teeth Whitening, a trade group that represents the interests of teeth-whitening entrepreneurs.

Keith and Joyce’s services are popular with consumers. Unfortunately, they are not so popular with the Alabama Legislature, which in 2011 made it a crime punishable by up to one year in jail and a fine of up to $5,000 for non-dentists to offer teeth whitening.

Alabama is not the only state to shut down non-dentist teeth whiteners. In 2011, the Connecticut State Dental Commission outlawed the practice. (IJ is challenging that ruling in federal court.) In fact, as IJ documents in a newly released report, White Out: How Dental Industry Insiders Thwart Competition from Teeth-whitening Entrepreneurs, at least 30 states have tried to shut down teeth-whitening entrepreneurs either through new statutes and regulations or through new interpretations of existing statutes.

The result of these actions is that consumers who want to brighten their smiles are paying higher prices for fewer choices. And they are doing so needlessly. The FDA regulates teeth-whitening products as “cosmetics,” which means that everyone, even minors, can buy the strongest commercially available teeth-whitening product and apply it to their own teeth at home, with no supervision or instruction. There is absolutely no reason why these products, which people legally use at home every day, should be illegal if used at a mall or salon.

But what Alabama has done is not just bad policy—it is unconstitutional. The Alabama Constitution requires that all restrictions on economic liberty have a reasonable fit with the dangers the state is attempting to prevent. And there is nothing reasonable about requiring entrepreneurs like Keith and Joyce to spend tens of thousands of dollars and years of their lives earning dental degrees simply to sell an over-the-counter product that customers apply to their own teeth.

That is why Keith and Joyce have teamed up with IJ to fight back. On April 30, 2013, we filed a lawsuit in state court seeking to strike down Alabama’s prohibition on non-dentist teeth whitening.

A victory for Keith and Joyce would do more than vindicate their right to sell teeth-whitening products; it would provide increased protection for the right of all Alabamans to earn an honest living free from arbitrary or protectionist government regulation. And that is something we should all smile about.

Paul Sherman is an IJ attorney.

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