SMILE! Connecticut’s Teeth-Whitening Entrepreneurs Are Open for Business

June 4, 2014

Teeth-whitening entrepreneurs in Connecticut can return to work thanks to a ruling issued on March 31, in Sensational Smiles LLC v. Mullen, the first of IJ’s three lawsuits that aim to beat back dental boards’ efforts to monopolize the safe practice of teeth whitening.

The lawsuit arose out of a 2011 ruling by the Connecticut Dental Commission that banned non-dentists from selling an over-the-counter whitening product and providing a clean, comfortable place for customers to apply the product to their own teeth, just as they would at home. After IJ challenged that ruling in federal court, the Commission back-pedaled and took a much narrower view of the law. The recent federal court ruling binds the Commission to that view, and confirms that it has almost no jurisdiction over teeth whitening as it is commonly practiced in shopping malls and salons.

That ruling will allow IJ’s clients to return to work, offering almost all of the services they previously offered, with just one exception. Over the course of the litigation, the Dental Commission adopted the absurd position that, although it was legal for non-dentists to make LED teeth-whitening lights available to their customers, they could not position those lights in front of their customers’ mouths. Instead, the customers have to position the light themselves. The district court upheld that restriction despite the fact that IJ presented unrebutted expert testimony that the LED lights used in teeth whitening are no more powerful or dangerous than common household flashlights.

The district court’s ruling demonstrates the critical need for judicial engagement. Nobody needs eight years of higher education to safely point a flashlight at someone’s mouth, and the only reason the restriction exists is to burden businesses that compete with dentists for teeth-whitening customers. That’s why we’ve appealed the court’s ruling to the 2nd U.S. Circuit Court of Appeals—and why we won’t stop fighting until we’ve secured total victory for our clients and all Connecticut entrepreneurs.

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