Alabama Supreme Court Upholds Dental Monopoly on Teeth Whitening

Matt Powers
Matt Powers · June 5, 2015

Arlington, Va.—Today, the Alabama Supreme Court upheld a 2011 law that gives licensed dentists a lucrative monopoly on teeth-whitening services and prohibits teeth-whitening entrepreneurs from operating in the state. The ruling means customers will pay higher prices for fewer choices because only licensed dentists can offer teeth-whitening. The Institute for Justice challenged the law in 2013 on behalf of Joyce Wilson and Keith Westphal.

“Today’s ruling doesn’t protect public safety; it protects licensed dentists from honest competition,” explained IJ Senior Attorney Paul Sherman, who was lead counsel on the case. “Literally millions of people have safely whitened their teeth at home using products bought online or in stores that are identical to those sold by our clients. The Alabama Supreme Court has allowed dentists to regulate their competitors out of existence for no good reason.”

In 2011, Alabama made it a crime for non-dentists to offer teeth-whitening services, even if those services consist of nothing more than selling over-the-counter products and providing customers with a clean, comfortable place to apply those products to their own teeth, just as they would at home. Violations of the law are punishable by up to $5,000 in fines or a year in jail per customer. That law, along with an earlier policy by the Alabama Board of Dental Examiners, forced IJ client Joyce Wilson to shut down her successful teeth-whitening business.

“My teeth-whitening business had thousands of satisfied customers and no complaints before the state dental board shut us down,” said Wilson. “I had hoped that the Alabama Supreme Court would protect my right to provide good safe services to people who cannot afford to have their teeth whitened by a dentist, but justice did not prevail.”

Alabama is not the only state in which dentists have taken steps to shut out non-dentist competition in the market for teeth whitening. As the Institute for Justice has documented, at least 30 states have attempted to shut down teeth-whitening businesses, and far more often than not, dental-industry interests, not consumers, drove these actions.

Earlier this year, the U.S. Supreme Court held that the North Carolina State Board of Dental Examiners violated federal antitrust law when it took action to shut down non-dentist teeth whiteners. The Supreme Court’s ruling was good news for IJ client Keith Westphal, who operates a successful teeth-whitening business in North Carolina, but today’s ruling from the Alabama Supreme Court is a setback.

“I was eager to expand my business into Alabama, to offer new services and help create new jobs,” said Westphal. “It makes no sense that the government would prevent me from doing that, especially in light of the recent US Supreme Court ruling. Today’s decision isn’t just bad for me; it’s bad for consumers and job-seekers in the state of Alabama.”

Sherman concluded, “Today’s ruling is a sharp break from decades of Alabama precedent that protects the right to earn an honest living subject only to reasonable government regulation. There is nothing reasonable about requiring someone to have eight years of higher education before she may sell an over-the-counter product that customers apply to their own teeth, and the Alabama Supreme Court’s failure to recognize that does a profound disservice to the constitutional rights of all Alabamians.”