Teeth-whitening and the law

Larry Ribstein —  17 November 2011

Teeth whiteners are joining the struggle against regulation.  Prior posts have covered licensing of witches, horse teeth floaters, cat groomers, tour guides, taxicabs and, of course, lawyers. Now the WSJ reports that

[d]entists are battling with spas, tanning salons and other nondental peddlers of pearly whites from North Carolina to New Jersey and, now, Connecticut over who should be permitted to meet the needs of a nation clamoring for an anchorman’s smile. Four out of five dentists, it seems, believe they should handle teeth whitening. But nondentists argue that the tooth doctors are just trying to protect their turf. As relations between the two sides have decayed, some Connecticut “teeth-whitening entrepreneurs” have begun a legal campaign to overturn a rule passed by the state’s dental commission in June that bars nondentists from offering the service.

Dentists charge $300-700 for whitening, nondentists $100 and $150.

The Connecticut dentist regulator (seven dental professionals, one member of the public) ruled in June that non-dentists who provide on-site teeth whitening face jail time.  The Institute for Justice argues that the Connecticut dentists are “using government power to stifle honest competition.” When North Carolina tried this, the FTC ordered it to stop such “anticompetitive conduct.” The New Jersey Dental Association sued a non-dentist teeth whitener for committing the illegal act of removing stains.  This, it says, can only be done by a dentist. The Association lost at trial.  But the dentists won a similar case in Alabama.

The struggle continues.

Larry Ribstein

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Professor of Law, University of Illinois College of Law