Chew on This: Georgia Dentists Fight Tooth and Nail to Preserve Monopoly

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

Arlington, Va.—Should you go to jail, or face thousands of dollars in fines, simply for selling over-the-counter teeth-whitening products and providing a clean, comfortable place for customers to apply those products to their own teeth?

That is the question to be answered by a major constitutional lawsuit filed today by a teeth-whitening entrepreneur and the Institute for Justice (IJ)—the national law firm for liberty—in the U.S. District Court for the Northern District of Georgia. The lawsuit challenges the Georgia Board of Dentistry’s irrational and protectionist monopoly prohibiting non-dentists from the business of teeth whitening.

Until recently, Trisha Eck had a successful teeth-whitening business in Warner Robbins, Ga. Like similar businesses that have popped up across the state and across the country, she sold over-the-counter teeth-whitening products and instructed customers on how to apply those products to their own teeth.

But in April 2014, Trisha received a cease-and-desist order from the Georgia Dental Board. The Board ordered Trisha to shut down her business or face up to five years in jail and up to $500 in fines per customer.

“The Dental Board’s actions have nothing to do with safety and everything to do with protecting licensed dentists from honest competition,” said IJ Attorney Larry Salzman, lead counsel on the case. “The FDA regulates teeth-whitening products as cosmetics. But dentists routinely charge up to five times more for teeth-whitening services than do non-dentist teeth-whitening entrepreneurs like Trisha, and that is why she has been targeted.”

IJ Client Trisha Eck said, “I sold the same products that people use at home every day. It is unfair that I was threatened and put out of business for selling teeth-whitening products when anyone can buy them legally in stores and online.”

Georgia is not the only state to crack down on competition from non-dentist teeth whiteners. As IJ showed in its 2013 report White Out, since 2005, at least 14 states have changed their laws or regulations to exclude all but licensed dentists, hygienists or dental assistants from offering teeth-whitening services. At least 25 state dental boards have ordered teeth-whitening businesses to shut down, including Georgia’s Dental Board.

These restrictions have led to litigation throughout the country. IJ is currently representing other teeth-whitening entrepreneurs challenging teeth-whitening prohibitions in Connecticut and Alabama. And on March 3, the U.S. Supreme Court agreed to hear a case brought by the Federal Trade Commission against the North Carolina Board of Dental Examiners for violating federal antitrust law by sending cease-and-desist letters to non-dentist teeth whiteners.

IJ Senior Attorney Paul Sherman said, “This is not just a problem in Georgia—this is a nationwide problem. Across the country, dental boards are using government power to shut down entrepreneurs and insulate themselves from honest competition. When that happens, federal courts have the power and the duty to put a stop to it.”

IJ Attorney Larry Salzman concluded, “What Georgia’s Dental Board is doing is not just bad policy, it’s unconstitutional. The Constitution protects the right of every American to earn an honest living in the occupation of her choice, subject only to reasonable government regulation. We intend to vindicate that principle to free Trisha and other entrepreneurs in Georgia and across the southeast to pursue their American Dream.”