Both sides in what some are calling the “teeth-whitening monopoly case” went to court last week to argue whether non dentists should be able to offer the cosmetic service to the general public in Alabama.
The contenders presented arguments Sept. 4 in a summary judgment hearing before Jefferson County Circuit Court Judge Elisabeth French in a case which challenges the constitutionality of a 2011 amendment to the Alabama Dental Code, which effectually prohibits non-dentists from providing teeth-whitening services.
Represented by the Institute for Justice, plaintiffs and teeth-whitening entrepreneurs Joyce Wilson and Keith Westphal are suing the state of Alabama’s Board of Dental Examiners, claiming the law protects dentist profits and not public health.
Nico Perrino, communications coordinator for the Arlington, Virginia-based Institute for Justice (IJ), said, “Dentists across the country are prohibiting people from offering teeth-whitening services within their states despite the fact that teeth-whitening is a perfectly safe practice.”
The Alabama Board of Dental Examiners Executive Director Susan Wilhelm disagreed.
“We’re created by the legislature to protect the public,” she said. “What the board’s responsibility is,” she continued in a phone interview, “is to make sure that everyone who is practicing dentistry in the state of Alabama has been appropriately educated and trained to do that and that they are safe practitioners.”
The plaintiffs, though, are not challenging the board’s responsibility. They are challenging what constitutes the practice of dentistry, which is defined in Alabama Code 34-9. It was amended to include teeth-whitening in 2011.
Joyce Wilson, an entrepreneur hailing from Guntersville, does not believe teeth-whitening should be included. “There’s never been any long-term side effects from this kind of service,” she said of the teeth-whitening products that are regulated by the FDA as cosmetics and available for over-the-counter purchase by minors. “Even the dentists can’t provide any clinical studies to show that it is not safe,” she said.
Perrino agreed. “Dentists in many cases aren’t even able to point to a consumer complaint regarding teeth-whitening services offered by non-dentists.”
Still, in December 2006, after Wilson began unrolling her BriteWhite® system in Alabama – “I was the first one out to offer teeth-whitening in the spas and salons outside the dental arena,” she said – she received a cease-and-desist letter from the dental board along with other entrepreneurs across the state.
In Wilhelm’s first interview with Weld – in which she said more than once that the discussion of the specifics should best be given to a dentist” – she explained, “A number of years ago in Alabama, there were kiosks opening for teeth-whitening. The board believed that based upon what they were seeing in these kiosks, what they were doing with the individuals coming in, that it most likely constituted the practice of dentistry. … You know, going in somewhere, people putting on gloves, putting things in someone’s mouth, making trays, making adjustments, rendering what could be called a diagnosis — that that was the practice of dentistry.”
In a follow-up interview, when Weld specifically questioned why the board sent the 2006 cease-and-desist letters, Wilhelm would not comment. She said she did not hold her current position at the time and referred Weld to legal briefs online.
In her original interview, though, Wilhelm said, “There are many facets to providing treatment. Dentists have been trained in not just applying the whitening gel and getting a white tooth surface, they have been educated in the pathology of the tooth, the anatomy of the tooth; they can determine whether or not tooth-whitening is even appropriate for an individual based upon the condition of their oral health, the condition of their general overall health.”
The plaintiffs disagree, according to the IJ senior attorney for the case, Paul Sherman, who along with his co-counsel Arif Panju represents both Wilson and her co-plaintiff Keith Westphal, a NC-based entrepreneur who is prohibited from expanding his business into Alabama under the current law.
Sherman believes the over-the-counter products are “perfectly safe” too. “The board has admitted that it has never received a complaint from any consumer about teeth-whitening,” he said.
Wilson spoke openly about what she thinks the real reasons are. “It’s the back pockets of the dentists,” she said, noting that services for which she might charge $50-$75 are often offered by dentists for $650.
Although the figures vary among dentists and non-dentists alike nationwide, the disparity does underscore the intensity behind Wilson’s eight-year struggle. “It’s just been a David-and-Goliath fight,” she said, chuckling despite the intensity palpable even over the phone. “And being a woman, too, you know how it is.”
The Institute for Justice, founded in 1991 and billing itself online as “the nation’s only libertarian, civil liberties, public interest law firm,” took up the David-and-Goliath fight. The staff there views the licensing issue in the Westphal v. Northcutt case as part of a larger, systemic issue. Speaking on behalf of the institute, Sherman said, “Occupational licensing is a major, nationwide problem. A few years ago,” he said referring back to the 1950s, “only about 5 percent of American workers needed a license from the government to work in their chosen occupation. Today that number’s about 30 percent, and it’s continuing to grow.”
One catalyst he cites is corruption. “Special interests and industry insiders have lobbied aggressively for laws that shut out their competition. We see that with dental boards cracking down on non-dentist teeth whiteners, with veterinarians cracking down on equine massage, and we also see it with occupations that would otherwise not be licensed becoming licensed in the first place,” he said, citing a 2007 example in which the Alabama Supreme Court struck down a licensing “scheme” for interior designers.
When asked why this trend is occurring, he responded, “The major reason it’s happening is that courts have abdicated their duty to protect the rights of entrepreneurs, Americans, to earn an honest living in the occupation of their choice, subject only to reasonable government regulation.”
“The facts aren’t really in dispute,” Sherman said. “It’s just a question of whether or not this law is constitutional.”
The code, amended in 2011 by the legislature to include teeth-whitening, reflects a 2009 ruling by Montgomery County Circuit Court Judge Tracey McCooey, who ruled that teeth-whitening procedures performed by non-dentists constituted the practice of dentistry and were therefore illegal unless performed by licensed dentists.
In the ruling, Judge McCooey found “that the processes by which the plaintiffs provide teeth whitening services constitute the performance of a dental operation and not merely the sale of a product. Simply put,” the decision continues, “the fact that citizens of this state may purchase and apply tooth whitening products approved by the FDA for ‘over the counter’ sale in their homes does not permit plaintiffs or others not properly licensed to advertise and perform dental services or operations which affect the public health, safety and welfare.”
According to the plaintiffs, public safety is not as risk. Sherman maintained, “The undisputed facts demonstrate that teeth-whitening is harmless. The government,” he said of opposing counsel, “is arguing essentially that because it is imaginable that someone could be harmed by teeth-whitening, that’s enough to give dentists a monopoly on the practice.”
Opposing counsel Luther “Rusty” Dorr of Maynard Cooper & Gale, a Birmingham-based law firm, did not respond to attempts for comment.
According to Sherman, though, at the summary judgment hearing last Thursday, both sides spoke for about 15 minutes, followed by a two-minute rebuttal by the plaintiff’s attorneys.
“We feel very good about the argument. We are cautiously optimistic that the plaintiffs are going to win,” Sherman said Thursday, noting that the Alabama Supreme Court has struck down reasoning involving imaginable harm before, referring to a case from the 1980s involving high explosives in residential neighborhoods.
Though he expects justice to fall in the plaintiff’s favor, Sherman said he would appeal to the Alabama Supreme Court if they lose and anticipates a similar move from the defendants if they lose. He estimated French would issue a written decision in the next two weeks to few months.
For now, Wilson concludes, “I’m hoping that we will be able to free this up and let the public have a choice as to how they want to have their teeth whitened.”