A tooth whitening company sues the Alabama dental board

Opening Statements

A tooth whitening company sues the Alabama dental board

Sep 1, 2013, 09:10 am CDT


Illustration by Jeff Dionise

A tooth whitener is a tooth whitener is a tooth whitener. Right?

Not so fast, says the Alabama Board of Dental Examiners, which is now enmeshed in litigation over who has the right to whiten teeth.

BriteWhite, a teeth-whitening company whose system was invented by a onetime Alabama hairstylist and sold in spas and salons, sued the dental board in April for violating its due process and equal protection rights. Several years ago, after BriteWhite hit the market, the board sent the company—and another teeth-whitening business—cease-and-desist letters, claiming it was practicing dentistry without a license, a public safety threat. But BriteWhite and similar teeth-whitening companies argue they aren’t practicing dentistry—they’re not even touching anyone’s mouth. Rather, they simply supply the instructions and materials to cosmetically bleach teeth.

The conflict is illustrative of a larger debate about the bounds of professional licensing. Some argue that excessively strict licensing requirements are really just monopolistic practices dressed up in a public safety bow.

Professional organizations like state dental boards can function as a guild or they can set sweeping policies defining professional practice and lobby legislatures to restrain trade in their industries, explains Peter Hammer, a professor of health law and policy at Wayne State University. An Alabama law—like those in several other states—dictates that only dentists can perform whitening services there.

Teeth whitening can cost several hundreds of dollars, depending on who provides the service. The American Academy of Cosmetic Dentistry reported in a 2006 survey that dentists earn about $25,000 a year from teeth whitening. In contrast, companies like BriteWhite provide bleaching materials and directions for much less. Similar whitening products, classified by the FDA as cosmetics, can even be picked up at drugstores. As a result, nondentist teeth-whitening services “don’t seem like a substantial public interest threat when you can buy similar products over the counter,” Hammer says. “My intuition as an antitrust scholar is that these objections [to companies like BriteWhite] are largely motivated by restraint on trade, to simply prevent the loss of business to dentists who also provide these services.”

Indeed, these turf wars are common and often backfire, according to Hammer. “Physicians used to beat up the chiropractors,” a move that wasn’t accepted by the public, which eagerly sought chiropractic services, he explains. “It’s part of a broader trend to shrink the power of a profession unless there’s a distinct public interest. Otherwise, the market should be opened up to competition.”

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