MONTGOMERY,Ala.– The Alabama Supreme Court on Friday upheld a lower-court’s ruling that limits teeth whitening procedures in Alabama to dentists only. The ruling comes after a series of legal changes to the teeth whitening industry in the past few years. Opponents of these changes say they are not in the interest of public health but exist to protect dentists from competition.
In 2011, the court amended the Alabama Dental Code to include teeth whitening in the official definition of dentistry. Alabama is one of only fourteen states that bans anyone other than dentists from performing teeth whitening services.
In February of this year, the U.S. Supreme Court ruled on a case similar to Alabama’s. The high court upheld a case against the North Carolina board of dentistry, where the law was found to be in violation of anti trust statutes by unlawfully discouraging competition.
In Westphal v. Northcutt, Keith Westphal and Joyce Osborn Wilson were banned from performing or selling teeth whitening services because they were not licensed dentists. Westphal, a North Carolina native, wanted to bring his teeth whitening business to Alabama but could not. Wilson was sent a cease and desist letter from the Alabama state board of dentists. Westphal and Wilson said that the 2011 amendment to the law was unlawful because it protects dentists from competition.
“I was eager to expand my business into Alabama, to offer new services and help create new jobs,” said Westphal. “It makes no sense that the government would prevent me from doing that, especially in light of the recent U.S. Supreme Court ruling.”
The Alabama Supreme Court upheld the October 2014 Jefferson County Circuit Court ruling, which stated that teeth whitening products that contain 16 or more percent of hydrogen peroxide are harmful to consumers.
The Alabama Supreme court’s opinion states, “The evidence in the record indicated that the procedure is relatively safe but that it is not potential adverse effects.”
To compare, Crest Whitestrips Supreme are sold over the counter and have a 14 percent concentration of hydrogen peroxide. Westphal and Wilson’s teeth whitening products contained a 16 and 12 percent concentration of hydrogen peroxide, respectively. There is only a two percent difference between the over the counter teeth whitening products that are regulated by the Food and Drug Administration and the products Westphal and Wilson sold.
“Literally millions of people have safely whitened their teeth at home using products bought online or in stores that are identical to those sold by our clients,” said Paul Sherman senior attorney for the Institute of Justice.
Sherman represented Westphal and and Wilson in the case.
“The Alabama Supreme Court has allowed dentists to regulate their competitors out of existence for no good reason.” Sherman said.
Dentists mentioned in the court’s opinion charge from a minimum of $450 for teeth whitening services. Westphal charges from $79.
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