The Teeth Whitening Debate

***UPDATED: February 27, 2015*** Earlier this week, the Supreme Court ruled that the North Carolina regulatory board violated federal law against unfair competition when it attempted to keep lower-cost competitors in other fields from offering teeth-whitening services. According to an ABC News story, Justice Anthony Kennedy stated that he believes that the Federal Trade Commission was right to conclude that the state regulatory board, largely made up of dentists, had a financial interest in the market for teeth-whitening. Justice Samuel Alito warned, however, that the decision “is likely to have far-reaching effects on the states’ regulation of professions,” seeing as many boards are made up of practitioners. The court typically allows states to handle these types of concerns, provided they are acting mainly with the interests of the public in mind. But because it was the opinion of the court that the interests of dentists were coming before those of the public, non-dental professionals may be allowed to provide these services in the near future.

***UPDATED: May 31, 2014*** A new battle over teeth whitening is building and it involves the world’s largest consumer-products company, according to a recent Fox Business article.  The maker of Crest 3D Whitestrips, Proctor & Gamble (P&G), has filed a lawsuit against Clio, a New Jersey based company that provides generic store brand whitening strips for about a third of the cost as the brand-name products. While vice president at Clio USA, Peter Cho, claims this is an attack on small businesses from a big corporation, P&G has stated that they “make significant investments in the innovations behind our products, and it is our lawful right to protect these innovations.  While those in Clio’s corner argue that P&Gs actions will leave consumers with limited, more expensive choices in teeth whitening products, law experts agree that if you make, sell, offer for sale or import a product under patent, you are liable of infringement.  Similar cases were filed by P&G in 2008 against Johnson & Johnson and McNeil-PPC Inc, both of whom stopped making their whitening products as a result.  The case is slated to start this August.

As the holidays approach and people all over the world get out and celebrate this festive time of year, people start to pay a bit more attention to their appearance.  Whether it’s the countless parties to attend or the inevitable Christmas morning pictures that will pop up on Facebook, Twitter, Instagram, or a variety of other social media tools, people are driven to look their best, wanting their bright smiles to show just how happy they are this season.  One of the more popular means of achieving this “glow” is through teeth whitening.  It’s no secret that a person’s smile is the first thing people notice and often the trait they remember most.  There are a plethora of products available to consumers looking to brighten their pearly whites, whether it be in office treatments or over-the-counter whitening strips.  I’ve even seen DIY concoctions popping up in my Pinterest stream using nothing more than common pantry items.  But now the desire for quick, easy, and affordable whitening has led to a frightening trend in malls across America.  This new trend begs the question, who do you trust with one of your best assets, your smile?

With teeth whitening businesses popping up all over the country, at least 14 states have changed their laws or regulations regarding who can offer these services.  According to a recent Dr. Bicuspid blog post, 25 state dental boards have ordered this type of company to close their doors, while nine states have gone as far as bringing legal actions against them.  The state of North Carolina has been in one such legal battle for several years now.  In early 2010, the North Carolina dental board began sending letters to non-dentist teeth-whitening providers to inform them that they were practicing dentistry illegally, ordering them to stop.  In response, the Federal Trade Commission (FTC) ruled that the board was overstepping its boundaries by doing so.  After several failed motions to dismiss the charges, the board filed a lawsuit against the FTC in February of 2011, accusing the commission of violating the U.S. Constitution in its attempts to keep the board from regulating the practice.  The initial decision on the case was that the board’s actions were “unreasonable restraint of trade and an unfair method of competition.” The board has appealed the ruling several times, including the latest loss in May 2013, but the decision to allow non-dentists to provide teeth-whitening services stood.  The American Dental Association (ADA) recently threw their weight behind the North Carolina dental board, hiring an attorney to file a brief to the U.S. Supreme Court to review the decision.  Additionally, at least 10 other state attorneys have filed similar briefs supporting the board.  Joining the ADA in support are the American Medical Association, American Osteopathic Association, American Veterinary Medicine Association, American Association of Orthodontists, American Association of Dental Boards, and a number of other parties.

As the teeth-whitening trend grows, so does the number of states that are reviewing their laws and regulations on the practice.  In the state of Florida, the law makes it a felony for a non-dentist to provide, or offer to provide, teeth-whitening services.  Whitening supplies may be sold directly to consumers, who are then allowed to apply products to their own teeth, but performance of the service by a non-licensed dentist is considered “unlicensed practice of dentistry” by the state and is punishable by law.  Enforcement of the law is relatively slow however, and whitening kiosks can be found in some Florida malls.  If you are looking to brighten your smile this holiday season, please be aware that these kiosks are not only unsafe, but illegal too.  You don’t need to visit a kiosk to get quick, easy, and affordable whitening services.  At Miami Dental Sedation Spa, we offer a variety of options, from take-home products to the efficient, affordable, Zoom procedure.  Contact us today for information on receiving safe, effective whitening services from a trained dental professional.

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