Teeth-Whitening Ruling Is Nothing to Smile About

Institute for Justice · July 17, 2015

Arlington, Va.—Today, the 2nd U.S. Circuit Court of Appeals upheld a policy of the Connecticut Dental Commission that threatens teeth-whitening entrepreneurs with fines and jail time if they position low-powered LED teeth-whitening lights in front of their customers’ mouths. The court upheld the policy—challenged in 2011 by the Institute for Justice (IJ)—even though these lights are no more powerful than a household flashlight and even though it is perfectly legal to make these lights available for customers to position in front of their own mouths.

Incredibly, two of the judges in today’s opinion ruled that blatant economic protectionism is a legitimate governmental interest. The ruling deepens a longstanding disagreement among the federal courts over whether state and local governments can use their power simply to protect favored businesses from competition. This issue is one of the most important unresolved questions in constitutional law and must soon be addressed by the U.S. Supreme Court.

IJ Senior Attorney Paul Sherman, who was lead counsel in the case, said, “Today’s ruling disregards what should be obvious to anyone: It is unconstitutional to require someone to have eight years of higher education before they can point a flashlight at someone’s teeth. Connecticut’s policy had nothing to do with public health and safety and only serves to make life difficult for entrepreneurs who wanted to earn an honest living offering teeth-whitening services.”

In ruling that Connecticut’s policy was constitutional, the court weighed in on what it called “a question of growing importance”—namely, whether the U.S. Constitution allows the government to regulate for no reason other than to protect favored businesses from economic competition. The court’s answer was an unequivocal “yes”:

“Much of what states do is to favor certain groups over others on economic grounds,” wrote Judge Guido Calabresi for the majority. “We call this politics. Whether the results are wise or terrible is not for us to say, but favoritism of this sort is certainly rational in the constitutional sense.”

Concurring in the opinion, Judge Christopher Droney disagreed with this conclusion, writing that “there must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses.” Judge Droney noted that the majority’s approach conflicts with the approach of other federal courts, and that the majority’s endorsement of this kind of protectionism would render this kind of review of economic regulations “a nullity.”

IJ Senior Attorney Robert McNamara, who served as co-counsel on the case, said, “Today’s opinion deepens a longstanding disagreement among the federal courts over a basic question: whether the government can do something bad to you simply because it likes someone else better. The 2nd Circuit’s decision that sheer favoritism is enough to justify regulation is wrong, both legally and morally, and we expect the U.S. Supreme Court to reject this reasoning when it has the chance.”

Although the ruling in the case, Sensational Smiles LLC v. Mullen, will not totally prohibit small-business owners like Tasos Kariofyllis and Steve Barraco, co-owners of Sensational Smiles LLC d/b/a Smile Bright, from operating, it does mean that they may be subject to up to $25,000 in fines or five years in jail per customer if they or one of their employees provide their customers with even trivial assistance during the teeth whitening process.

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 similar prohibitions in Alabama and Georgia. Earlier this year, the U.S. Supreme Court held that the North Carolina State Board of Dental Examiners could be held liable under federal antitrust law for its efforts to shut down non-dentist teeth whiteners.

IJ President and General Counsel Chip Mellor said, “Today’s ruling illustrates 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.