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Teeth-whitening entrepreneurs challenge dentists-only restriction

Posted May 28, 2013 6:30 AM CDT
By Debra Cassens Weiss

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The Institute for Justice is challenging yet another licensing regulation, this time in a suit over restrictions on teeth whitening.

The complaint (PDF), filed last month on behalf of two teeth-whitening entrepreneurs, challenges an Alabama law that allows only dentists to perform such services, according to the New York Times and a press release. Those who violate the law could face up to a year in a jail and a $5,000 fine.

The suit contends the dentists-only restriction deprives the plaintiffs of their right to pursue a lawful occupation, in violation of due process and equal protection guarantees in the Alabama Constitution. One of the plaintiffs is Joyce Osborn Wilson, who invented a teeth-whitening system called BriteWhite that she sold to salons and spas.

Alabama is among at least 14 states that define teeth whitening as the practice of dentistry. The American Dental Association has defended such restrictions. In a statement released to the Times, the ADA said a licensed dentist needs to conduct a thorough oral examination to determine whether teeth whitening is appropriate.

Paul Sherman, an Institute lawyer, points out that teeth whitening products that are banned in Alabama salons and spas can be sold over-the-counter in stores, because the the Food and Drug Administration considers them to be cosmetics. “The equal protection argument is particularly compelling because these are the same products that people buy and use at home every day,” Sherman told the Times.

The Institute for Justice has also challenged regulations or laws that ban veterinarians from giving online advice, that restrict casket sales, that restrict front-yard gardens, and that require hair braiders to take cosmetology classes. In the casket case, the New Orleans-based 5th U.S. Circuit Court of Appeals sided with Benedictine monks who challenged the law allowing only funeral directors to sell caskets.

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