WHITE OUT: How dental industry insiders thwart competition from teeth-whitening entrepreneurs

This study, authored by Angela C. Erickson of the Institute for Justice, investigates the expansion of dental licensing as a form of economic protectionism where industry insiders seek laws that limit competition. Maria Perno Goldie, RDH, MS, reviews the study.

May 17th, 2013
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In recent years, teeth whitening has skyrocketed into an $11 billion industry encompassing products like toothpaste as well as services offered by dentists, salons, spas and mall kiosks.(1)

State dental boards and dental associations have lobbied for laws and regulations that would enable licensed dentists and dental hygienists to capture a greater share of that market by banning anyone else from offering teeth-whitening services. This study investigates this expansion of dental licensing as a form of economic protectionism, where industry insiders seek laws that limit competition.(1) A new report from the Institute for Justice (IJ) speaks about a lawsuit filed by two non-dentists who were prohibited from offering these services in Alabama.

The American Academy of Cosmetic Dentistry (AACD) Statement Regarding Teeth Whitening Procedures discusses the issue of non-dentists providing certain teeth-whitening procedures at salons, spas, and shopping malls.(2) The AACD advocates that teeth whitening constitutes the practice of dentistry and that dental services should be delivered by dental professionals who have been educated to perform procedures in the safest manner possible.

A lawsuit filed recently in the Circuit Court for the 10th Judicial Circuit for Jefferson County, Alabama, two non-dentists who were banned from offering whitening services to the public claim their entrepreneurial rights are being violated.(3) It is a civil-rights lawsuit that seeks to vindicate the constitutional right to earn an honest living free from unreasonable government regulations.

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.(1) Also, about 25 state dental boards have directed teeth-whitening businesses to close, and nine states have brought legal actions against such businesses. A review of records from legislatures, boards and associations shows that, far more often than not, dental-industry interests, not consumers, drove these actions.(1)

In the United Kingdom (UK) the law relating to tooth whitening changed October 31, 2012. The new law increases the percentage of hydrogen peroxide allowed in tooth whitening or bleaching products to 6%, subject to conditions which include first use by a dental practitioner or under their direct supervision, and that the patient is 18 years of age or over.(4)

There had been much debate within the profession, as to the interpretation of the Cosmetic Product (Safety) Regulations 2008, as amended by the new law the Cosmetic Product (Safety)(Amendment) Regulations 2012. Dental Protection wished to clarify the interpretation for members and instructed a Queen’s Counsel Barrister to provide a detailed opinion on the law. Dental Protection has updated this position statement to reflect the legal opinion obtained.

In April 2013, a Position Paper on Bleaching and Tooth Whitening by DCPs (dental care professionals) was published by the General Dental Council (GDC).(5) This Position Statement should be read in conjunction with the Position Statement on Tooth Whitening which was updated 28 February 2013.(4)

Under the new law introduced by the Cosmetic Products (Safety) (Amendment) Regulations 2012 (The "Regulations") hygienists and dental therapists may provide tooth whitening using products containing or releasing up to 6% hydrogen peroxide under the direct supervision of a dentist, if an equivalent level of safety is ensured.

According to the new IJ Report, prohibiting teeth-whitening entrepreneurs will raise prices for consumers and protect dentists from honest competition. Legislators and dental boards should resist protectionist calls to expand dental licensing and instead legalize teeth whitening to allow new businesses to flourish.

To review Current State Laws and Written Dental Board Policies Regarding Teeth Whitening, to view a Map of Teeth-whitening Regulations and Enforcement Actions, learn more about legislation regarding tooth whitening, and much more, read the full report.(1)

1. ERICKSON AC. WHITE OUT: How Dental Industry Insiders Thwart Competition From Teeth-whitening Entrepreneurs. http://ij.org/images/pdf_folder/other_pubs/white-out.pdf.
2. http://www.aacd.com/index.php?module=cms&page=990.
3. http://www.scribd.com/doc/138726668/suit-challenging-ban-on-non-dentists-offering-whitening.
4. http://www.dentalprotection.org/uk/positionstatements/toothwhitening/.
5. http://www.dentalprotection.org/uk/news/positionstatements/BleachingandToothWhiteningbyDCPs/2012.

Maria Perno Goldie, RDH, MS

To read previous RDH eVillage FOCUS articles by Maria Perno Goldie, click here.

To read more about teeth whitening and dental hygiene, click here.

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