Alabama Teeth-Whitening Lawsuit Moves Forward

J. Justin Wilson
J. Justin Wilson · October 2, 2013

Arlington, Va.—
Late yesterday, Judge Elisabeth A. French of the Circuit Court for the 10th Judicial Circuit in Birmingham, Ala., ruled that a lawsuit against the Alabama Board of Dental Examiners can go forward. The ruling is part of an economic liberty lawsuit filed by the Institute for Justice, the national law firm for liberty, on behalf of teeth-whitening entrepreneurs Joyce Osborn Wilson and Keith Westphal.

Wilson said, “I’m thrilled that our fight for economic liberty will go forward, and I know that we will prevail.”

Joyce and Keith want to sell over-the-counter teeth-whitening products and provide a clean, comfortable place for customers to apply the product to their own teeth. But under a 2011 Alabama law—passed in response to pressure from licensed dentists—it is a crime for non-dentists to offer teeth-whitening services. Violations can subject entrepreneurs like Joyce and Keith to a year in jail and a $5,000 fine.

IJ Attorney Arif Panju said, “Joyce and Keith sell the same products people buy and use at home every day. This law has nothing to do with safety and everything to do with protecting licensed dentists from lower-priced competition. We have documented at least 30 states that have attempted to shut down teeth-whitening businesses like Keith’s and Joyce’s and, invariably, it is dental-industry interests, not consumers, who drive these regulations.”

Unwilling to risk thousands of dollars in fines and jail time, Joyce shut down her business, and Keith has been banned from expanding his North Carolina-based business into Alabama. Last April, Joyce and Keith joined the Institute for Justice to file a lawsuit in state court, arguing that Alabama’s teeth-whitening ban is unconstitutional.

The Dental Board had asked the court to throw out the case, but in yesterday’s short, one-page ruling, Judge French refused. The ruling means that the case will now proceed to discovery and, eventually, a ruling on the merits of the lawsuit.

Paul Sherman, an IJ senior attorney and lead counsel in the case said, “The Dental Board argued that facts don’t matter and that Joyce and Keith’s lawsuit should be thrown out without giving them the opportunity to prove that Alabama’s ban on non-dentist teeth whitening puts entrepreneurs out of business for no good reason. The judge refused to buy that. As a result, Joyce and Keith will get their day in court and the chance to prove that Alabama’s protectionist teeth-whitening law is unconstitutional.”

Sherman concluded, “This ruling illustrates the importance of judicial engagement—a recognition that facts matter in all constitutional cases. We now look forward to proving the unconstitutionality of Alabama’s teeth-whitening ban.”