Ending Connecticut’s Teeth-Whitening Monopoly Would Mean Brighter Smiles for Entrepreneurs and Consumers

J. Justin Wilson
J. Justin Wilson · November 15, 2011

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 Connecticut, the person who sold you the product at the mall or salon can be charged with a felony and sentenced to up to five years in jail or $25,000 in fines. But that might soon change thanks to a lawsuit filed today by the Institute for Justice, a public interest law firm that litigates nationwide on behalf of entrepreneurs whose rights are being violated by the government.

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.

Watch a short video on the case: www.ij.org/CtTeethVideo

There is one group that is not smiling about these new, low-cost teeth-whitening services: the Connecticut Dental Commission. In June, the Commission ruled it is a crime punishable by up to five years in jail or $25,000 in civil penalties for anyone but a licensed dentist to offer teeth-whitening services, even if the customers apply the product to their own teeth.

The ruling was a disaster for Connecticut entrepreneurs like Lisa Martinez and Smile Bright owners Steve Barraco and Tasos Kariofyllis. In 2008, Lisa opened Connecticut White Smile in the Crystal Mall in Waterford, Conn., where she sold an over-the-counter whitening product and provided a clean, comfortable place for customers to apply the product to their own teeth, just as they would at home. But the Commission’s new rule forced Lisa to shut down her profitable business because she could not risk thousands of dollars in fines and years in jail.

“My customers loved my convenient location and affordable prices. Owning my own business gave me a flexible schedule that allowed me to spend more time with my family,” said Lisa. “But because I’m not a licensed dentist, the Dental Commission forced me to shut down my business even though I sold the same over-the-counter products available online and in stores.”

Teeth-whitening products are regulated by the FDA as cosmetics, which mean anyone—even a child—can purchase them and apply them to his or her own teeth without a prescription and without supervision or instruction.

“The Dental Commission’s ruling has nothing to do with public health or safety and everything to do with protecting licensed dentists from honest competition,” explained Institute for Justice Staff Attorney Paul Sherman, who today filed suit on behalf of Martinez, Barraco and Kariofyllis to end Connecticut’s government-enforced teeth-whitening cartel. “Rather than trying to compete by lowering prices or improving their services, the dental cartel is using government power to put their competition out of business. That’s unconstitutional.”

“The U.S. Constitution protects the right to earn an honest living free from unreasonable regulations designed solely to benefit special interests,” said Institute for Justice Senior Attorney Dana Berliner. “This case raises a constitutional question of vital importance: May the government prohibit entrepreneurs from selling safe, over-the-counter products that people use at home every day just to protect a group of industry insiders from honest competition?”