Federal Lawsuit Challenges Dentists’ Teeth-Whitening Monopoly

Federal Lawsuit Challenges Dentists’ Teeth-Whitening Monopoly
April 23, 2014

Should a person go to jail, or face thousands of dollars in fines, simply for selling over-the-counter teeth-whitening products and providing a clean, comfortable place for customers to apply those products to their own teeth?

That is the question to be answered by a federal lawsuit filed this month by a teeth-whitening entrepreneur and the Institute for Justice (IJ)—the national law firm for liberty—in the U.S. District Court for the Northern District of Georgia. The lawsuit challenges the Georgia Board of Dentistry’s protectionist monopoly prohibiting non-dentists from the business of teeth whitening.

Until recently, plaintiff Trisha Eck had a successful teeth-whitening business in Warner Robbins, Ga. Like similar businesses that have popped up across the state and the country, she sold over-the-counter teeth-whitening products and instructed customers on how to apply those products to their own teeth.

But earlier this month, Trisha received a cease-and-desist order from the Georgia Dental Board. The Board ordered her to shut down her business or face up to five years in jail and up to $500 in fines per customer.

Dentists Charge 5 Times More

“The Dental Board’s actions have nothing to do with safety and everything to do with protecting licensed dentists from honest competition,” said IJ Attorney Larry Salzman, lead counsel on the case. “The FDA regulates teeth-whitening products as cosmetics. But dentists routinely charge up to five times more for teeth-whitening services than do non-dentist teeth-whitening entrepreneurs like Trisha, and that is why she has been targeted.”

Trisha said, “I sold the same products that people use at home every day. It is unfair that I was threatened and put out of business for selling teeth-whitening products when anyone can buy them legally in stores and online.”

Other States Protect Dentists

Georgia is not the only state to crack down on competition from non-dentist teeth whiteners. As IJ showed in its 2013 report White Out, since 2005, at least 14 states have changed their laws or regulations to exclude all but licensed dentists, hygienists or dental assistants from offering teeth-whitening services. At least 25 state dental boards have ordered teeth-whitening businesses to shut down, including Georgia’s Dental Board.

These restrictions have led to litigation throughout the country. IJ is currently representing other teeth-whitening entrepreneurs challenging teeth-whitening prohibitions in Connecticut and Alabama. And on March 3, the U.S. Supreme Court agreed to hear a case brought by the Federal Trade Commission against the North Carolina Board of Dental Examiners for violating federal antitrust law by sending cease-and-desist letters to non-dentist teeth whiteners.

“What Georgia’s Dental Board is doing is not just bad policy, it’s unconstitutional,” said Salzman. “The Constitution protects the right of every American to earn an honest living in the occupation of her choice, subject only to reasonable government regulation. We intend to vindicate that principle to free Trisha and other entrepreneurs in Georgia and across the southeast to pursue their American Dream.”

Shira Rawlinson (srawlinson@ij.org) is assistant director of communications at the Institute for Justice.