Federal Court Narrows Restrictions on Non-Dentist Teeth Whitening

J. Justin Wilson
J. Justin Wilson · March 31, 2014

Arlington, Va.—Connecticut’s teeth-whitening entrepreneurs will be allowed to go back to work after the Federal District Court for the District of Connecticut issued a decision late Friday that narrowed the scope of a 2011 ruling of the Connecticut Dental Commission that made it a crime for anyone but a licensed dentist to offer teeth-whitening services. The case is Sensational Smiles LLC v. Mullen.

This is good news for small-business owners like Taso Kariofyllis and Steve Barracco, the co-owners of Sensational Smiles LLC, who joined with the Institute for Justice (IJ) in 2011 to challenge the Dental Commission’s ruling. But the ruling by Judge Michael Shea did leave one of the Dental Commission’s restrictions in place: Although non-dentists may provide LED whitening lights for their customers, they must allow the customers to position the lights for themselves. Non-dentists who position the light for their customers are guilty of the unlicensed practice of dentistry, a felony offense punishable by up to five years in jail and $25,000 in fines per customer.

Paul Sherman, an IJ senior attorney and lead counsel in the case said, “The Dental Commission’s prohibition on non-dentist teeth whitening was never about protecting consumers, it was about protecting dentists from honest competition. Our clients sold the exact same products that people buy and use at home every day. This ruling will allow our clients and those like them to return to work and makes clear that the Dental Commission has almost no jurisdiction over this safe practice.”
Sensational Smiles co-owner Steve Barracco said, “After being shut down for nearly three years, we’re thrilled that we can reopen. But it is outrageous that a person could be sent to jail for helping customers point a light at their mouths. We intend to keep fighting until these unconstitutional restrictions are struck down completely.”

Unrebutted expert testimony in the case demonstrated that the LED lights commonly used in teeth whitening are no more powerful or dangerous than a household flashlight. Nevertheless, the court upheld this restriction under an extremely deferential interpretation of the so-called “rational basis” test.

Sherman said, “If requiring entrepreneurs to get eight years of higher education before they can point a flashlight at someone’s mouth is rational, then nothing is irrational. The district court’s ruling is out of step with other federal courts and provides no protection whatsoever to small-business owners who are faced with nonsensical, protectionist regulations. We intend to appeal this ruling, and we won’t stop until entrepreneurs in Connecticut are free to earn an honest living, subject only to reasonable government regulation.”

Connecticut is not the only state to attempt to put non-dentist teeth whiteners out of business. As the Institute for Justice documented in a 2013 report, White Out, at least 30 states have taken action against non-dentist teeth whiteners. In addition to challenging Connecticut’s declaratory ruling, the Institute for Justice is currently challenging a similar prohibition in Alabama.

IJ President and General Counsel Chip Mellor said, “This case shows the vital importance of judicial engagement—a willingness on the part of judges to seriously consider the facts in all constitutional cases. Across the country, occupational licensing boards are using government power not to protect the public, but to protect their members from honest competition. That’s not just bad policy, it’s unconstitutional.”

Founded in 1991, the Institute for Justice is the national law firm for liberty.