Arlington, Va.—Today, Judge Elisabeth A. French of the Circuit Court of Jefferson County upheld a 2011 law that gives licensed dentists a lucrative monopoly on teeth-whitening services. The ruling means that teeth-whitening entrepreneurs are prohibited from competing with dentists for customers, while teeth-whitening customers must pay higher prices for fewer choices.
Under Alabama law, it is 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 and 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.
In April 2013, teeth-whitening entrepreneurs Keith Westphal and Joyce Wilson—represented by the public interest law firm, the Institute for Justice (IJ)—challenged the law as a violation of the Alabama Constitution. Friday’s ruling rejected that challenge.
IJ Senior Attorney Paul Sherman said, “Today’s ruling doesn’t protect public safety; it protects licensed dentists from honest competition. Literally millions of people have safely whitened their teeth using products identical to those sold by the plaintiffs. But although these products are safe, dentists typically charge up to six times more than non-dentists for teeth-whitening services, which is why they’ve lobbied aggressively in Alabama to restrict competition.”
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 IJ 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. On October 14, 2014, the U.S. Supreme Court will hear oral argument in North Carolina State Board of Dental Examiners v. Federal Trade Commission, in which the FTC has argued that the North Carolina Dental Board violated federal antitrust law when it took action against non-dentist teeth whiteners.
Sherman concluded, “The Alabama Constitution protects the right to earn an honest living subject only to reasonable government regulation, and there is nothing reasonable about requiring a person to have eight years of higher education before they may sell an over-the-counter product that customers apply to their own teeth. Judge French’s ruling is wrong on the law, and we intend to appeal this decision to the Alabama Supreme Court.
More information on the case is available at: http://www.ij.org/teethwhitening.