Arlington, Va.—In a growing number of states, the sale of teeth-whitening products at a mall or salon is being outlawed, with jail time or fines as repercussions. Two entrepreneurs are seeking to change that by teaming up with the Institute for Justice (IJ) in a constitutional lawsuit filed Tuesday to challenge Alabama’s prohibition on non-dentist teeth whitening, according to the Institute.
IJ clients Keith Westphal and Joyce Osborn Wilson are banned from offering Alabamans a place to use the prepackaged teeth-whitening products they sell to customers. Faced with the prospect of fines or jail time, Osborn Wilson shut down her business and Westphal has been kept from expanding his successful North Carolina business into Alabama.
Teeth-whitening services are popular and increasingly available at spas, salons, and shopping malls. This has been a boon for consumers because these businesses typically offer whitening services at a lower cost than dentists do, often charging less than 25% of what a dentist would charge for similar results. Teeth-whitening products are regulated by the FDA as cosmetics, which means anyone—even a minor—can purchase them and apply them to his or her own teeth without a prescription and without supervision or instruction.
“Alabama’s prohibition on non-dentist teeth whitening has nothing to do with protecting consumers and everything to do with protecting monopoly profits for dentists,” said Arif Panju, an attorney at the Institute for Justice Texas Chapter. “Teeth whitening products are safe, and whatever minimal risks they carry are the same whether customers apply those products to their own teeth at home or at a mall or salon.”
Alabama isn’t alone in granting licensed dentists a lucrative monopoly over teeth whitening. In a new report, “White Out: How Dental Industry Insiders Thwart Competition from Teeth-Whitening Entrepreneurs,” IJ documents the nationwide growth of laws that prohibit teeth-whitening services.
Angela Erickson, the Institute for Justice researcher who wrote the report said, “Since 2005, at least 30 states have taken action to shut down non-dentist teeth whiteners. The evidence is overwhelmingly clear that the pressure for this didn’t come from consumers, it came from dentists and dental associations who have a financial stake in keeping others out of business.”
In 2011 Alabama amended the state’s Dental Practice Act to declare teeth whitening to be the practice of dentistry, making it a crime, punishable by one year in jail and a $5,000 fine, for non-dentists to offer teeth-whitening services.
IJ client Keith Westphal said, “These are the exact same products people buy and use at home every day. Requiring entrepreneurs like me to become licensed dentists in order to offer teeth-whitening services is like requiring make-up artists to become licensed dermatologists. It is totally unreasonable and designed solely to protect dentists from honest competition.”
Westphal and Osborn Wilson teamed up with the Institute for Justice to file a lawsuit challenging Alabama’s law as a violation of the state’s constitution. That lawsuit, Westphal v. Northcutt, was filed Tuesday in the Circuit Court for the 10th Judicial Circuit, Jefferson County, Alabama.
IJ Attorney Paul Sherman said, “The Alabama Constitution protects the right to earn an honest living subject only to reasonable government regulation, and there is nothing reasonable about requiring a person to get eight years of higher education before they can sell an over-the-counter product that customers apply to their own teeth.”
This is IJ’s second lawsuit challenging a state teeth-whitening prohibition. In 2011, IJ filed a federal lawsuit challenging Connecticut’s similar prohibition. That lawsuit is still ongoing.
Source: Institute for Justice