Teeth Whitening Court Case Reaches Supreme Court

Who Can Whiten Your Teeth? A Recent Court Case May Soon Decide

Should an unlicensed teeth whitening business – that is, a business without a licensed dental physician on staff – be able to offer this “dental” service to consumers? That is the question at the root of North Carolina State Board of Dental Examiners (NCBDE) v. Federal Trade Commission (FTC), an antitrust case that pits the North Carolina Board – which consists primarily of dentists elected by their state-licensed colleagues – against the Federal Trade Commision, a monopoly-busting U.S. agency which in this case represents salons, spas, and other businesses that provide low-cost teeth whitening services to clients – without a license, of course.

The suit, which was filed after the NCBDE sent 47 cease-and-desist letters to teeth whitening businesses, hinges not on whether unqualified people should be allowed to offer potentially dangerous services – neither the Board nor the FTC is claiming that well-regulated, FDA-approved teeth whitening strips are dangerous (they’re not) – but rather, if state-sanctioned professional bodies like the NCBDE may claim a monopoly on services non-members may safely provide without a license.

“Of course, I’d want a neurologist to decide neurology policy, not a bureaucrat.”

On the surface, the case looks fairly clear-cut: Mall kiosks and salons charge a fraction of what dentists bill for teeth whitening services, and it seems the NCBDE, which issues dental licenses, is using its power to drive these competitors out of business with claims that they are “illegally practicing dentistry.” However, if the Court sides with the FTC and takes the ability to license (in effect, the power to determine what constitutes “dentistry”) away from the NCBDE and gives it to uninvested – but also ignorant – third parties, the entire profession might find itself on a slippery slope. To offer an example, Justice Antonin Scalia said that, when it comes to regulating neurology policy, he’d prefer brain surgeons to bureaucrats.

State governments often give professionals like doctors, dentists, and lawyers limited authority to self-regulate their occupations. Now, to retain this power, dentists in the NCBDE must prove that they are operating in the interests of consumers, and not just trying to knock out their competitors for personal gain. The Supreme Court expects a ruling on the case by June, 2015.