Federal Court Denies Georgia Dental Board’s Motion to Dismiss Teeth-Whitening Lawsuit

J. Justin Wilson
J. Justin Wilson · July 29, 2014

ATLANTA—Today, a judge for U.S. District Court for the Northern District of Georgia denied the Georgia Board of Dentistry’s motion to dismiss a challenge to a law that allows only licensed dentists to offer teeth-whitening services.

The ruling by Judge Marvin H. Shoob in Eck v. Battle means the lawsuit, filed in April 2014 by teeth-whitening entrepreneur Trisha Eck and the Institute for Justice (IJ), can move forward. Until recently, Trisha had a successful teeth-whitening business in Warner Robbins, Ga., selling over-the-counter teeth-whitening products and providing her customers a clean, comfortable place to apply the products to their own teeth. The Dental Board ordered Trisha, who does not have a dental license, to shut down her business or face up to five years in jail and $500 in fines per customer.

“Economic liberty is one of the most important rights protected by the U.S. Constitution and today’s ruling means that Trisha Eck will have her day in court to show that the Dental Board is violating her right to earn a living,” said IJ attorney and lead counsel on the case, Larry Salzman.

Judge Shoob’s opinion held that Trisha’s “complaint sufficiently alleges that the requirement to obtain a license to practice dentistry, which requires years of schooling costing tens of thousands of dollars, effectively prohibits her from engaging in her chosen occupation of teeth whitening.” He noted that the “possible invalidation [of the Dental Board’s enforcement against teeth whiteners] can scarcely be expected to disrupt Georgia’s entire system of dental regulation.”

“I was shocked when the Dental Board shut me down and am grateful that the judge will let me prove that I and other teeth whiteners offer a useful and safe service,” said Eck.

Georgia is one of a number of states that have granted dentists a lucrative monopoly on teeth whitening. As the Institute for Justice documented in its 2013 report, White Out, at least 25 state dental boards have ordered teeth-whitening businesses to shut down. IJ is currently challenging these restrictions in Connecticut and Alabama. The issue is even on its way to the U.S. Supreme Court, which next term will consider a case next term involving efforts by the North Carolina Board of Dental Examiners to shut down teeth whiteners in that state—efforts that the Federal Trade Commission alleges violate antitrust law.

IJ Senior Attorney Paul Sherman said, “What’s happening in Georgia is part of a much larger nationwide problem. Dental Boards across the country are using government power, not to protect the public, but to protect themselves from honest competition. That is not a legitimate use of government power, and today’s ruling will give us the opportunity to prove that.”