Georgia Teeth Whitening - Background

Litigation Backgrounder

Dentists Outlaw Competition:

Teeth-Whitening Entrepreneur Challenges Dentists’ Monopoly in Georgia
 

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 2012, Trisha Eck had a successful business selling over-the-counter whitening product and providing a clean, comfortable place for customers to apply the product to their own teeth. That is, until March 2014, when the Georgia Dental Board told her to shut down her business or face up to five years in jail and up to $500 in fines per customer. Unwilling to suffer those punishments, Trisha closed her business.

Teeth-whitening services are popular and increasingly available at spas, salons and shopping malls. Trisha 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 Georgia Dental Board, which includes eight dentists, bans non-dentists from competing with dentists to offer teeth-whitening services.

Dentists routinely charge up to five times more for teeth-whitening services similar to those Trisha 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. That’s not just bad policy, it’s 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 April 2, 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 Trisha, challenging Georgia’s ban on non-dentist teeth whitening.


Introduction

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.[1]

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,[2] and at least one study has concluded that orange juice is more damaging to tooth enamel than are common teeth-whitening products.[3] 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 the service. 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.[4] 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 charge 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.[5]


Trisha Eck’s American Dream—and Her Dental Board Nightmare

Entrepreneur Trisha Eck found out about Georgia’s ban on non-dentist teeth whitening the hard way. In 2012, Trisha began looking for a new challenge in her life after many years as a stay-at-home mom and homemaker. Her two kids were grown, and she considered going back to work to bring in more money for the family. Her husband is a civilian machinist at the Warner Robins Air Force Base and the family was concerned that his hours might be reduced in the future due to the “sequester” and other federal budget cuts.

In mid-2012, Trisha became excited by the idea of starting a teeth-whitening business after seeing a demonstration at a trade show. The business would let her set her own hours, required limited investment, and wouldn’t take long to learn. She visited others who started similar businesses, educated herself about the trade and, in November of 2012, bought a supply of inventory and equipment. By December, she opened Tooth Fairies Teeth Whitening at a “medi-spa,” where she worked alongside aestheticians and medical professionals. By charging as little as $79 for teeth whitening, the service was a bargain for her customers and she began to receive a steady stream of business. Trisha’s early success gave her confidence to begin advertising on the radio and mailing fliers to homes in the community, and she was flattered with referrals from others at the medi-spa.

Fast forward to the fall of 2013, when an investigator for the Georgia Dental Board showed up at her office and began asking questions about her business and inspecting the facilities. Soon after, on September 30, 2013, Trisha received an ominous letter from the Georgia Dental Board containing an “investigative subpoena.” It demanded that she turn over all records “of any kind relating to individuals receiving teeth whitening,” including “mailing lists, client lists, billing records” and contracts. Trisha soon learned that she was being investigated for the unlawful practice of dentistry for offering teeth-whitening services.

Trisha has never in her life had any encounter with the law beyond a traffic ticket. Frightened, she quickly complied with the subpoena, handing over all of her business documents to the Dental Board—and then waited. When she heard nothing back after nearly a month, she decided to close her business to avoid possible fines or criminal charges. As more months passed, she became increasingly worried about what was to become of her and her American Dream. Finally, on March 14, 2014, the Board issued a cease-and-desist order permanently prohibiting Trisha from continuing to operate her business, subject to a fine of $500 for each violation of the order. Unable to continue her own business, Trisha has had to take a new job as a secretary.


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 Trisha’s, which simply involving 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 Trisha is unconstitutional because it draws an irrational distinction between teeth-whitening services performed at a salon, spa or shopping mall and teeth-whitening performed at home. The products that Trisha 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 medi-spa or salon 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 to insulate licensed dentists from honest competition. But that is not a legitimate use of government power. That’s why Trisha has joined the Institute for Justice to fight back. Her case, Eck v. Battle, filed on April 2, 2014, seeks to vindicate not just her right to earn an honest living, but the right of all Georgians to pursue their the occupation of their choice without unnecessary government interference.


The Plaintiff

The plaintiff is Trisha Eck (d/b/a Tooth Fairies Teeth Whitening).  Trisha is a resident of Warner Robins, Ga., and, until the Dental Board issued its cease-and-desist letter, operated Tooth Fairies Teeth Whitening in that city.

 

The Defendants

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.; Steve 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 to 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 Attorney Larry Salzman and Senior Attorney Paul Sherman, 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.

 

For more information, contact:

Shira Rawlinson
Assistant Director of Communications
Institute for Justice
(703) 682-9320 ext. 229
srawlinson@ij.org
www.ij.org/georgia-teeth-whitening



[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.

[v] Ga. Code § 43-11-50.


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