Who Should Be Allowed To Provide Teeth-Whitening Services?

Federal Lawsuit Challenges Power of Dental Licensing Board in Teeth Whitening Case

Should licensing boards solely determine who should be allowed to provide teeth-whitening services? On October 14, 2014, the Supreme Court heard oral arguments in an anti-trust case involving North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC). A 2010 complaint filed by the FTC states that the North Carolina state board sent dozens of cease and desist letters to businesses such as spas, salons and mall kiosks offering cosmetic whitening treatments at lower prices than a licensed dental practice. Source

Some key points of the argument are:

  • The state board (composed mainly of private dentists) claimed that any service provided with teeth-whiteners, such as offering advice or guidance on how to use them, or providing customer service, constitutes the practice of dentistry. The cease and desist letters warned businesses that what they were doing is illegal.
  • The spas and salons were offering tooth-whitening services from $75 to $125 -a mere fraction of what was being charged at dental offices. The FTC complaint states, “The purpose of those letters was to block the expansion of teeth whitening kiosks in shopping malls. “Such actions have had and always will have the effect of restraining competition unreasonably and injuring consumers”, by denying the consumer the benefits of price competition and choice of services. Source
  • The FTC ordered the North Carolina dental board to stop sending warning notices to the non-licensed teeth-whitening services.
  • The state board argues that the federal government was interfering with the ability of a state regulatory board to protect public health and safety.
  • Several justices were concerned that the FTC’s position might expose government-sanctioned medical licensing boards and others to legal liability. Justice Anthony Kennedy stated, “If dentists, doctors and other professionals can be sued over decisions about industry regulations, then no one with expertise would agree to serve on a government licensing board. That’s going to be the consequence of the rule you advocate,” he told a lawyer for the government. Source
  • Many medical and health care organizations also filed friend-of-the-court briefs. The American Medical Association (AMA) released a statement saying, “State regulatory boards acting to fulfill the directives of state law should be free to make decisions on public health issues without fear of second-guessing under the federal antitrust laws”, since organizations typically appoint lawyers, doctors and other professionals from the field to oversee their own. Source

Share your thoughts on this case. Do you feel state licensing boards have the right or responsibility to determine who can or cannot whiten the teeth of consumers?


Update (3/2/2015) Supreme Court rules against North Carolina dental board.