The Issue in a Nutshell
In Georgia, entrepreneurs who offer teeth-whitening services can be charged with a felony, imprisoned for up to five years and fined thousands of dollars. Their crime? Selling the exact same teeth-whitening product sold in stores.
In 2011, Christina Collins had a successful business selling over-the-counter whitening products and providing a clean, comfortable place for customers to apply the product to their own teeth. That is, until 2014, when the Georgia Dental Board told her to shut down her business or face thousands of dollars in fines and years in jail. Unwilling to suffer those punishments, Christina closed her business.
Teeth-whitening services are popular and increasingly available at spas, salons and shopping malls. Christina sells the same products that people buy online or in stores and use every day at home. The FDA even regulates teeth-whitening products as cosmetics. But the Dental Board, which includes eight dentists, bans non-dentists from competing with dentists to offer teeth-whitening services.
Dentists routinely charge several times more for teeth-whitening services similar to those Christina offered. Rather than try to compete by lowering prices or improving their services, the Dental Board is using government power to put their competition out of business. It is not just bad policy, it is unconstitutional.
The right to start a business and earn an honest living is one of the most important rights protected by the U.S. Constitution. That is why on December 1, 2014, the Institute for Justice, the national law firm for liberty, filed a lawsuit in the U.S. District Court for the Northern District of Georgia on behalf of Christina, challenging Georgia’s ban on non-dentist teeth whitening.
During the past decade the teeth-whitening industry has grown tremendously. Ushered in by the widespread availability of products such as Crest’s Whitestrips, whitening services are increasingly available at spas, salons and kiosks in malls. The Council for Cosmetic Teeth Whitening estimates that teeth-whitening is now an $11 billion/year industry.
While practices vary among companies, teeth-whitening businesses generally provide customers with a prepackaged, peroxide-based teeth-whitening product. They use procedures that do not involve touching a customer’s mouth or performing any cleaning. Instead, these businesses instruct their customers on how to apply the products to their own teeth in a clean, comfortable environment, just as they would at home. Teeth whiteners sometimes also position (or allow the customer to position) a safe LED “enhancing light” in front of a customer’s mouth.
The FDA regulates teeth-whitening products as cosmetics, meaning that anyone is permitted to purchase them and apply them to their own teeth without a prescription and without supervision or instruction. The American Dental Association states that the most common side effects are temporary tooth sensitivity or gum irritation, and at least one study has concluded that orange juice is more damaging to tooth enamel than are common teeth-whitening products. More importantly, whatever minimal risks teeth-whitening carries are the same whether a customer applies a product to their teeth at home, at a salon or at a shopping mall.
As teeth-whitening services have become widespread, the price has dropped, much to the displeasure of licensed dentists. In fact, teeth whitening done at spas, salons and other retail locations often costs less than 25 percent of what a dentist would charge. That in turn has sparked a backlash from dentists, who are increasingly turning to occupational-licensing boards to outlaw this honest competition.
Dental-Industry Insiders Stifle Their Competition
Dentists have pushed for laws and regulations that ban anyone else from offering teeth whitening. With non-dentist teeth-whitening businesses charging $150 or less for similar services, dentists are feeling the pinch, and state dental associations have lobbied hard to shut down their low-cost competitors. In response, dental boards in several states—including Georgia—have outlawed teeth-whitening services by non-dentists. As the Institute for Justice documented 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.
The Georgia Dental Board is one of the latest state boards to crack down on teeth-whitening by non-dentists. As is typical of such boards, Georgia’s Board is made up primarily of practicing dentists; eight of the ten currently filled positions on the Board are held by dentists. According to the Board, “altering the shade of teeth, such as is done by current whitening techniques is the practice of dentistry.” The Board has declared that “facilities that do not have a dentist performing and supervising the services would be charged with the unlicensed practice of dentistry, which is a felony in this state.” Shockingly, the unlawful practice of dentistry is punishable by two to five years imprisonment, a fine of $500 per customer or both.
Christina Collins' American Dream—and Her Dental Board Nightmare
Entrepreneur Christina Collins found out about Georgia’s ban on non-dentist teeth whitening the hard way. A single mother, Christina launched Mobile Whites in February 2011 as a business that would allow her to earn an honest living and maintain a relatively flexible schedule. She set up a retail location in Savannah, Georgia that would give her customers the opportunity to learn how to apply a pre-packaged teeth-whitening product to their own teeth while in a comfortable and friendly environment. By charging as little as $59 for teeth whitening, the service was a bargain for Christina’s customers and she began to receive a steady stream of business. Christina’s success gave her confidence to begin advertising on websites like Groupon and Wedding Wire, leading to further word-of-mouth referrals from satisfied customers and even invitations to provide her services at parties and other locations.
Fast forward to August 2014. Christina received an e-mail and a phone call from an agent of the Georgia Dental Board accusing her of engaging in the unlawful practice of dentistry. Christina has never in her life had any encounter with the law beyond a traffic ticket. Frightened, she voluntarily closed her business and vacated her retail location in Savannah. The Dental Board was not satisfied, however, and told Christina that she had to sign a cease-and-desist order that prohibited her from continuing to operate her business. In doing so, an agent of the Dental Board demanded that Christina meet him in a parking lot outside of Savannah to make her sign the order in his presence—and then he refused to provide Christina with a copy of the order after she signed it. The Dental Board later approved the order in October 2014. In the meantime, Christina has been unemployed and forced to pursue opportunities outside of Georgia to provide her teeth-whitening services, distancing her from her family and her satisfied customers.
Legal Challenge: The Constitutional Right to Earn an Honest Living
It may not be surprising that a dental board made up of practicing dentists would pass a regulation that insulates dentists from competition. But the eight dentists on the Georgia Dental Board should not have the power to outlaw their own competition—it’s not just bad policy, it’s unconstitutional. Indeed, the right to start a business and earn an honest living is one of the most important rights protected by our Constitution.
The 14th Amendment to the U.S. Constitution protects the right of all Americans to earn a living in the occupation of their choice free from arbitrary or unreasonable government interference. It is unconstitutional under the Due Process, Equal Protection and Privileges or Immunities Clauses of the 14th Amendment for the Dental Board to prohibit non-dentist teeth-whitening entrepreneurs from providing services like Christina’s, which simply involve selling an over-the-counter product that customers apply to their own teeth.
The Dental Board’s order and the application of the Dental Practice Act to teeth-whitening entrepreneurs like Christina is unconstitutional because it draws an irrational distinction between teeth-whitening services performed at a salon, spa or shopping mall and teeth-whitening services performed at home. The products that Christina sold and used are the same products that people use every day at home, and any customer can buy them legally in stores or online. In both cases it is the customers who apply the product to their own teeth; the only difference is the setting in which the teeth-whitening product is applied. Yet the Dental Board treats teeth-whitening at a salon or retail location as the unlicensed practice of dentistry—a felony—while home whitening is properly and completely unregulated.
The only interest advanced by the Dental Board’s order is the insulation of licensed dentists from honest competition. But that is not a legitimate use of government power. That’s why Christina has joined the Institute for Justice to fight back. Her case, Collins v. Battle, filed on December 1, 2014, seeks to vindicate not just her right to earn an honest living, but the right of all Georgians to pursue the occupation of their choice without unnecessary government interference.
The plaintiff is Christina Collins (d/b/a Mobile Whites). Christina is a resident of Port Wentworth, Ga., and, until she was forced to sign a cease-and-desist order, Christina operated Mobile Whites from her retail location in downtown Savannah. She also offered teeth-whitening services at parties and other locations in Georgia where she was invited.
The defendants in this case are Tanja D. Battle, Division Director of the Georgia Board of Dentistry, and the members of the Georgia Board of Dentistry: Richard Bennett, D.M.D.; Logan “Buzzy” Nalley Jr., D.M.D.; Rebecca B. Bynum, R.D.H.; Randy Daniel, D.M.D.; Tracy Gay, D.M.D.; Thomas P. Godfrey, D.M.D.; Stephan Holcomb, D.M.D.; Dr. Antwan L. Treadway; H. Bert Yeargan, D.D.S.; and Connie Engel. The members of the Board are empowered to issue declaratory rulings interpreting the Dental Practice Act, issue cease and desist letters to teeth whiteners alleged to violate the Act and impose civil penalties for violations of the Act. Samuel S. Olens, Georgia’s Attorney General, is also joined in the suit because he is charged with enforcing the criminal penalties of the Dental Practice Act. They are sued only in their official capacities.
The Institute for Justice: 20 Years of Protecting Economic Liberty
Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ engages in cutting-edge litigation and advocacy to defend individual rights nationwide.
The challenge to Georgia’s prohibition on non-dentist teeth whitening is IJ’s third case challenging similarly protectionist teeth-whitening regulations. IJ represents teeth-whitening entrepreneurs in Connecticut in the case of Sensational Smiles v. Mullen and entrepreneurs in Alabama in the case of Westphal v. Northcutt. In 2013, IJ published White Out, the most comprehensive report available on teeth whitening regulation and attempts by state dental boards to prohibit honest competition from non-dentist teeth-whitening entrepreneurs.
The Litigation Team
The attorneys in this case are Institute for Justice Senior Attorney Paul Sherman and Attorney Joshua House, who litigate economic liberty cases throughout the nation. Mr. Sherman also represents the teeth-whitening entrepreneurs fighting to strike down the protectionist regulations in Alabama and Connecticut. They are joined by local counsel Yasha Heidari of the Heidari Power Law Group in Atlanta, Georgia.
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[ii] American Dental Association, Statement on the Safety and Effectiveness of Tooth Whitening Products (Feb. 2008),available at http://www.ada.org/1902.aspx.
[iii] See Orange Juice Worse For Teeth Than Whitening Agents, Study Finds, SCIENCEDAILY, June 30, 2009,http://www.sciencedaily.com/releases/2009/06/090630132007.htm.