Conn. teeth-whitening rules challenged in court
Thursday, November 17, 2011
HARTFORD, Conn. (AP) — A lawsuit filed Wednesday seeks to block new regulations by the Connecticut Dental Commission that make it illegal for nondentists to provide certain teeth-whitening procedures at salons and shopping malls.
The Institute for Justice, a public interest law firm based in Arlington, Va., sued in U.S. District Court in Hartford, saying the regulations promote a monopoly for dentists. A nondentist who offers some whitening services can face a felony charge, up to five years in jail or $25,000 in fines, the firm said.
“It’s an outrageous abuse of government power,” Paul Sherman, a lawyer for the Institute for Justice, said at a news conference outside the courthouse. “This is putting people out of business merely to enrich a group of insiders.”
A spokesman for the state Department of Public Health said officials haven’t read the lawsuit and won’t comment.
The Connecticut State Dental Association didn’t comment on the lawsuit. But in June, when the new regulations were imposed, the medical group said stains on teeth can be caused by a medical condition, not just by cigarettes, food and beverages such as coffee or tea. Tatiana Barton, president of the state association, said dentists are best qualified to diagnose the cause of tooth discoloration and suggest the best treatment.
Evaluation, diagnoses, preventions or treatments done by anyone other than a licensed dentist is a violation of state law unless a practitioner is selling whitening products that are otherwise legal to sell, the state Dental Association has said.
The American Dental Association doesn’t have a policy on the issue, but its governing body in 2008 urged state dental societies to support the proposition that whitening generally constitutes the practice of dentistry and “any non-dentist engaging in such activity is committing the unlicensed practice of dentistry.”
Lisa Martinez, who owned a teeth-whitening business at the Crystal Mall in Waterford, said Connecticut’s rules put her out of business after three years. Appearing at the news conference, she said she was “constantly harassed” by dentists and dental hygienists.
“Thousands of customers were satisfied with the results,” she said.
Teeth-whitening businesses market their product as quicker alternatives — results appear within a half-hour — to store-bought whitening strips that require several sessions over a few days. The business owners also say their service is less expensive than what dentists offer. Martinez said she charged $119, compared with $350 or more charged by dentists.
Teeth-whitening practitioners say they don’t apply gel to customers’ teeth and don’t require dental training. Martinez, for example, said she previously worked in finance at a health care facility and was drawn to the teeth-whitening business while on vacation in Florida.
The Institute for Justice said states have no basis to ban nondentists from teeth whitening, which it said is regulated by the Food and Drug Administration.
“Anyone — even a child — can purchase them and apply them to their own teeth without a prescription and without supervision or instruction,” the law firm said.
Dental boards in Alabama, Kentucky, North Carolina and Tennessee also are “pushing to establish a monopoly” for dentists, Sherman said.
The U.S. Federal Trade Commission and North Carolina State Board of Dental Examiners are in court over the issue. In recent legal papers, the FTC staff said an administrative law judge found that the North Carolina law counting whitening treatments as within the realm of dentistry hurts competition and reduces options for consumers who might receive the same services elsewhere.
The Institute for Justice successfully fought a similar battle in Connecticut, winning a 2009 federal lawsuit against a state law requiring interior designers to be licensed.
The fight against teeth-whitening rules is similar to the struggle to end licensing requirements for designers, Sherman said.
“In Connecticut and across the country, entrepreneurs are finding that making an honest living is under attack,” he said.
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