Arlington, Va.—What is the difference between whitening your teeth at home with a product you buy online and whitening your teeth at a shopping mall or salon with an identical product bought there? In a growing number of states, the person who sold you the product at the mall or salon can be charged with a crime and be sentenced to jail or face huge fines. But two entrepreneurs are seeking to change that by teaming up with the Institute for Justice (IJ) in a constitutional lawsuit filed today to challenge Alabama’s prohibition on non-dentist teeth whitening.
IJ clients Keith Westphal and Joyce Osborn Wilson are banned from offering Alabamans a comfortable and clean place to use the prepackaged teeth-whitening products they sell to customers. Faced with the prospect of crippling fines or jail time, Joyce shut down her profitable business and Keith has been kept out of expanding his successful North Carolina business into Alabama.
Teeth-whitening services are popular and increasingly available at spas, salons and shopping malls. This has been a boon for consumers because these businesses offer whitening services at a much lower cost than dentists do, often charging less than 25 percent of what a dentist would charge for similar results. Teeth-whitening products are regulated by the FDA as cosmetics, which means anyone—even a minor—can purchase them and apply them to his or her own teeth without a prescription and without supervision or instruction.
“Alabama’s prohibition on non-dentist teeth whitening has nothing to do with protecting consumers and everything to do with protecting monopoly profits for dentists,” said Arif Panju, an attorney at the Institute for Justice Texas Chapter. “Teeth whitening products are safe, and whatever minimal risks they carry are the same whether customers apply those products to their own teeth at home or at a mall or salon.”
Unfortunately, Alabama isn’t alone in granting licensed dentists a lucrative monopoly over teeth whitening. In a new report, “White Out: How Dental Industry Insiders Thwart Competition from Teeth-Whitening Entrepreneurs,” IJ documents the nationwide growth of laws that prohibit teeth-whitening services like Keith’s and Joyce’s.
Angela Erickson, the Institute for Justice researcher who wrote the report said, “Since 2005, at least 30 states have taken action to shut down non-dentist teeth whiteners. The evidence is overwhelmingly clear that the pressure for this didn’t come from consumers, it came from dentists and dental associations who have a financial stake in keeping others out of business.”
That’s what happened in Alabama, which in 2011 amended the state’s Dental Practice Act to declare teeth whitening to be the practice of dentistry, making it a crime, punishable by one year in jail and a $5,000 fine, for non-dentists to offer teeth-whitening services.
IJ Client Keith Westphal said, “These are the exact same products people buy and use at home every day. Requiring entrepreneurs like me to become licensed dentists in order to offer teeth-whitening services is like requiring make-up artists to become licensed dermatologists. It is totally unreasonable and designed solely to protect dentists from honest competition.”
Now, Keith and Joyce are fighting back. They’ve teamed up with the Institute for Justice—the nation’s law firm for liberty—to file a lawsuit challenging Alabama’s law as a violation of the state’s constitution. That lawsuit, Westphal v. Northcutt, was filed today in the Circuit Court for the 10th Judicial Circuit, Jefferson County, Alabama.
IJ Attorney Paul Sherman said, “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 get eight years of higher education before they can sell an over-the-counter product that customers apply to their own teeth.”
This is IJ’s second lawsuit challenging a state teeth-whitening prohibition. In 2011, IJ filed a federal lawsuit challenging Connecticut’s similar prohibition. That lawsuit is still ongoing.
“The growth of these laws illustrates the critical need for judicial engagement,” said IJ President and General Counsel Chip Mellor. “Creating monopolies that favor special interest is not a legitimate use of government power, and courts have to be willing to strike down these schemes when they are challenged.”