Ct Teeth Whitening - Backgrounder

Litigation Backgrounder

A Reason to Smile in the Constitution State:

Entrepreneurs Challenge Connecticut’s Teeth-Whitening Monopoly

 

 

The Issue in a Nutshell:

What is the difference between whitening your teeth at home with a product you buy online and whitening your teeth at a shopping mall or salon with an identical product bought there? The person who sold you the product at the mall or salon can be charged with a felony and sentenced to up to five years in prison.

Teeth-whitening services are popular and increasingly available at spas, salons and shopping malls. In 2008, Lisa Martinez opened Connecticut White Smile in the Crystal Mall in Waterford, Conn., where she sold an over-the-counter whitening product and provided a clean, comfortable place for customers to apply the product to their own teeth, just as they would at home.

But a recent ruling by the Connecticut Dental Commission has made it a crime punishable by up to five years in jail for anyone but a licensed dentist to offer the type of teeth-whitening services Lisa offered.   Unwilling to risk thousands of dollars in fines and years in prison, Lisa shut down her profitable business.

There is no health or safety reason to make it illegal for anyone other than a dentist to offer teeth-whitening services. In fact, teeth-whitening products are regulated by the FDA as cosmetics, which means anyone—even a child—can purchase them and apply them to their own teeth without a prescription and without supervision or instruction.

The real explanation for Connecticut’s new restrictions on teeth-whitening services is old-fashioned special-interest politics. Dentists routinely charge four times more than non-dentists for teeth-whitening services similar to those Lisa offered. Rather than try to compete by lowering prices or improving their services, the dental cartel is using government power to put their competition out of business.

The U.S. Constitution protects the right to earn an honest living free from unreasonable regulations designed solely to benefit special interests. That’s why on November 16, 2011, the Institute for Justice teamed up with Lisa* and teeth-whitening entrepreneurs Steve Barraco and Tasos Kariofyllis, owners of Smile Bright, to file a federal constitutional lawsuit in the U.S. District Court for the District of Connecticut to vindicate their right to earn an honest living.

With Connecticut’s unemployment rate at nearly nine percent, this case raises a constitutional question of vital importance: May the government prohibit entrepreneurs from selling safe, over-the-counter products that people use at home every day just to protect a group of politically connected insiders from honest competition?

On December 17, 2012, Plaintiff Lisa Martinez voluntarily dismissed her claims against the members of the Connecticut Dental Commission.  Sensational Smiles LLC, d/b/a Smile Bright, remains a plaintiff in the case.




 

Introduction

Over the past several years, there has been explosive growth in the market for teeth-whitening services in the United States. Previously available only through dentists, whitening services are increasingly available at spas and salons, and teeth-whitening kiosks and stores are opening up in shopping malls across the country. The Council for Cosmetic Teeth Whitening estimates that teeth-whitening is now an $11 billion per year industry.[1]

While practices vary among companies, teeth-whitening businesses generally provide customers with a prepackaged, peroxide-based teeth-whitening product and a comfortable, clean environment in which to use the product. Most companies do not actually touch their customers, but instead instruct their customers on how to apply the products to their own teeth, just as they would at home. These businesses sometimes also position (or allow the customer to position) a safe LED “activating light” in front of a customer’s mouth.

Teeth-whitening is safe. 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] Teeth-whitening is also far safer than other cosmetic oral procedures like tongue piercing, which the American Dental Association advises can lead to infections or cracked teeth[4] and which are generally unregulated. 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.

The increasing availability of teeth-whitening services has been a boon for consumers because these businesses offer effective whitening services at a much lower cost than dentists do, often charging less than 25 percent of what a dentist would charge. And it has been great for entrepreneurs, too, whether as the basis of a stand-alone business in a mall storefront or kiosk, or as an extra income stream for the owners of spas and salons.

 

Evolution of a Cartel in the Constitution State

There’s one group, however, that isn’t smiling about the increasing availability of low-cost teeth-whitening services: dentists. Teeth-whitening is a lucrative component of many dental practices. According to a 2008 Gallup Poll, more than 80 percent of dentists offer teeth-whitening services[5] and the American Academy of Cosmetic Dentists reports that in 2006 AACD dentists performed an average of 70 teeth-whitening procedures each year for average annual revenue of $25,000.[6] That works out to more than $350 per procedure.

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 have ruled that only dentists may provide teeth-whitening services.[7]

The Connecticut Dental Commission is one of the latest state boards to crack down on teeth-whitening by non-dentists. As is typical of such boards, Connecticut’s Dental Commission is made up primarily of practicing dentists; six of the nine positions on the Commission are reserved for dentists. Of the six dentists currently serving on the Commission, five advertise that they offer teeth-whitening services.[8] The Commission also has seats for three public members but two of those seats are currently vacant.[9]
 
On June 8, 2011, the Connecticut Dental Commission issued a declaratory ruling that effectively gives dentists a monopoly on the provision of teeth-whitening services. The ruling concludes that teeth-whitening services constitute the practice of dentistry when they include, among other things, “making recommendations of how to perform teeth-whitening,” “utilizing instruments and apparatus such as enhancing lights” or “instructing a customer on teeth-whitening procedures or methods.”[10] That means that a non-dentist who simply sells customers an over-the-counter product and instructs them on how to apply it to their own teeth is engaged in the unlicensed practice of dentistry—a felony in Connecticut punishable by up to five years in prison or civil fines of up to $25,000.[11] Even worse, under Connecticut law “each instance of patient contact or consultation” is a separate chargeable offense, meaning that a non-dentist teeth whitener who sees only four customers could be threatened with 20 years in prison.[12]

 

Connecticut Entrepreneurs Under Attack

Before the commission handed down its declaratory ruling, Lisa Martinez operated her business, Connecticut White Smile, out of a leased space in the Crystal Mall in Waterford, Conn. Her location at the shopping mall was convenient and her prices—between $109 and $139 depending on the length of the service—were a bargain for her customers. Lisa’s business was also a perfect fit for her lifestyle, providing her with reliable income and a flexible schedule that allowed her to spend time caring for her young children.

That’s not to say that running her own business was easy. Almost from the first day she opened her business in November 2008, Lisa found herself harassed by dentists and dental hygienists who would come into her store and accuse her of breaking the law or threaten to have her business shut down. Not one to back down, Lisa dealt with the harassment. But that changed when the Dental Commission issued its declaratory ruling. Unwilling to risk tens of thousands of dollars in fines and potentially years in prison, Lisa shut down her profitable business. She currently works as a flight attendant, which forces her to spend time away from her family and denies her the satisfaction she got from being her own boss.

Tasos Kariofyllis and Steve Barraco have a similar story. Tasos and Steve are the co-founders of Smile Bright, a Connecticut-based company that, before the Dental Commission’s ruling, offered teeth-whitening services in spas and salons.[13] Their company has loads of satisfied customers and has been featured repeatedly on local news. But in response to the Dental Commission’s ruling, Smile Bright has stopped offering its services through spas and salons. Instead, Tasos and Steve limited their business to selling a teeth-whitening kit for home use, which remains legal.

At a time when unemployment in Connecticut is nearly nine percent,[14] government should be getting out of the way of entrepreneurs like Lisa, Tasos and Steve, not shutting them down to benefit licensed dentists.

 

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. After all, as one federal court observed, “[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”[15] But just because such special-interest politics is common doesn’t make it constitutional.

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. Under the Due Process, Equal Protection and Privileges or Immunities Clauses of the 14th Amendment, the Dental Commission’s ruling is unconstitutional as applied to services like Lisa’s and Smile Bright’s, which simply involve selling an over-the-counter product that customers apply to their own teeth.

The Dental Commission’s ruling 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. 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 Commission treats teeth-whitening at a mall or salon as the unlicensed practice of dentistry—a felony—while leaving home whitening completely unregulated.

The only interest advanced by the Dental Commission’s ruling is in insulating licensed dentists from honest competition. But that’s not a legitimate use of government power. That’s why Lisa and Smile Bright have joined the Institute for Justice to fight back. Their case, Martinez v. Mullen, filed on November 16, 2011, seeks to vindicate not just their right to earn an honest living, but the right of all citizens of the Constitution State to pursue their American dream in the occupation of their choice.

 

The Plaintiffs

 The plaintiffs in this case are Lisa Martinez and Sensational Smiles, LLC (d/b/a Smile Bright). Lisa is a resident of Ledyard, Conn., and until the Dental Commission’s declaratory ruling operated Connecticut White Smile at the Crystal Mall in Waterford, Conn. Sensational Smiles, LLC (d/b/a Smile Bright) is a Connecticut limited-liability corporation founded by Connecticut residents Tasos Kariofyllis of Derby, Conn., and Steve Barraco of Hamden, Conn.

 

The Defendants

The defendants in this case are Dr. Jewel Mullen, Commissioner of the Connecticut Department of Public Health, who is charged with enforcement of the Dental Practice Act, and the members of the Connecticut Dental Commission, Jeanne P. Strathearn, DDS; Lance E. Banwell, DDS; Elliot S. Berman, DDS; Peter S. Katz, DMD; Steven G. Reiss, DDS; Martin Ungar, DMD; and Barbara B. Ulrich. They are sued in their official capacities.

 

The Institute for Justice: 20 Years of Protecting Economic Liberty

Founded in 1991, the Institute for Justice is the nation’s leading public interest law firm dedicated to protecting economic liberty. IJ engages in cutting-edge litigation and advocacy to defend individual rights nationwide. Among IJ’s economic liberty victories are:

  • Saint Joseph Abbey, et al. v. Castille, et alIn August 2010, the Institute for Justice teamed up with the monks of the Saint Joseph Abbey to challenge the constitutionality of Louisiana’s requirement that the monks must be licensed as funeral directors in order to sell their handmade wooden caskets. IJ won at the trial court level and the case is now before a federal appeals court.
  • Swedenburg v. Kelly—In May 2005, the Institute for Justice won an important economic liberty case before the U.S. Supreme Court, striking down a protectionist law that granted monopoly power to distribute wine to large, politically connected wholesalers.
  • Craigmiles v. Giles—The Institute for Justice secured a federal court victory striking down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously in December 2002 by the Sixth U.S. Circuit Court of Appeals.  This marked the first federal appeals court victory for economic liberty since the New Deal.

The challenge to Connecticut’s prohibition on non-dentist teeth whitening is IJ’s third lawsuit in Connecticut. IJ previously represented Connecticut interior designers in Roberts v. Farrell, a successful challenge to a Connecticut law that prohibited them from truthfully advertising their services to the public. IJ also represented homeowner Suzette Kelo and others in Kelo v. City of New London, the infamous case in which the U.S. Supreme Court ruled by a 5-4 vote that government could take property from one private owner and transfer it to another private owner, sparking a nationwide backlash to protect property rights.

 

The Litigation Team

The lead attorney in this case is Institute for Justice Staff Attorney Paul Sherman, who litigates economic liberty and First Amendment cases throughout the nation. He is joined by Institute for Justice Senior Attorney Dana Berliner. They will be joined by local counsel Scott Sawyer of the Sawyer Law Firm in New London, Conn.

 

For more information contact:

Shira Rawlinson
Communications Coordinator
Institute for Justice

(703) 682-9320 ext. 229

www.ij.org/CtTeeth



[1] Colleen Shaddox, Dental Board to Rule if Tooth Whitening is Dentistry, Connecticut Health I-Team, March 24, 2011, http://newhavenindependent.org/index.php/health/entry/dental_board_to_rule_/.

[2]  American Dental Association, Statement on the Safety and Effectiveness of Tooth Whitening Products (Feb. 2008), available at http://www.ada.org/1902.aspx.

[3] See Orange Juice Worse For Teeth Than Whitening Agents, Study Finds, ScienceDaily, June 30, 2009, http://www.sciencedaily.com/releases/2009/06/090630132007.htm.

[4]  American Dental Association, Oral Health Topics: Oral Piercing, http://www.ada.org/3090.aspx (last visited Nov. 10, 2011).

[5]  Complaint Counsel’s Proposed Final Stipulations of Law, Fact, and Authenticity, In re N.C. Bd. Of Dental Exam’rs, at 7 (No. 9343), available at http://www.ftc.gov/os/adjpro/d9343/110208ccproposedfinalstip.pdf.

[6] Complaint Counsel’s Memorandum in Support of its Motion for Partial Summary Decision, In re N.C. Bd. Of Dental Exam’rs, at 6–7 (No. 9343), available at http://www.ftc.gov/os/adjpro/d9343/101108northcarolinacmpt.pdf.

[7] State dental boards have not been unanimous on this. Ohio’s dental board recently held that teeth-whitening like that described above is generally not the practice of dentistry. See Ohio State Dental Board, Policy Regarding Bleaching Services Offered in Mall Kiosks & Salons by Non-Licensed Dental Personnel (Feb. 27, 2008), available at http://www.dental.ohio.gov/bleaching.pdf.

[8] Our Services, North Main Dental: Dr. Jeanne Strathearn, http://www.northmaindental.net/services.htm (last visited Nov. 10, 2011); Lance E. Banwell, DDS, YellowPages.com, http://www.yellowpages.com/woodbury-ct/mip/banwell-lance-e-dds-7713747?lid=171419135 (last visited Nov. 10, 2011); Teeth Whitening, Comprehensive Dental Care, http://www.westhartforddentalcare.com/cosmetic-dentistry-west-hartford/teeth-whitening.asp (last visited Nov. 10, 2011) (Dental office of Elliot Berman, DDS); Dental Services, Katz Family Dental, http://katzfamilydental.com/dental-services/ (last visited Nov. 10, 2011); Whitening and Bleaching, The Dental Team: Steven G. Reiss, DDS & Associates, http://www.thedentalteamct.com/our_services/Teeth_Whitening.htm (last visited Nov. 10, 2011).

[9] Colleen Shaddox, Ruling Could Give Dentists a Big Reason to Smile, Connecticut Health I-Team, March 28, 2011,  http://www.theday.com/article/20110328/NWS01/303289891/1018.

[10] Connecticut State Dental Commission, Declaratory Ruling: Teeth Whitening (June 8, 2011), available at http://www.ct.gov/dph/lib/dph/phho/dental_commission/declaratory_rulings/ 2011_teeth_whitening_declaratory_ruling_-_corrected.pdf.

[11] Conn. Gen. Stat. §§ 19a-17(6), 20-114, 20-126.

[12] Id.

[13]

Smile Bright, http://thebestsmile.com/.

[14] Mara Lee, Connecticut Unemployment Falls To 8.9%, Hartford Courant, October 20, 2011, http://articles.courant.com/2011-10-20/business/hc-connecticut-unemployment-20111020_1_job-growth-job-creation-unemployment-rate.

[15] Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).

 

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