Alabama Dentists Win Teeth-Whitening Case

     (CN) – Sometimes it seems as if whatever a federal court says, Alabama will say differently. The latest example is a ruling on teeth-whitening services by the state’s highest court that appears to directly contradict a February decision by the U.S. Supreme Court.
     On June 5, the Alabama Supreme Court ruled that only licensed dentists are allowed to provide teeth-whitening services in the state, affirming an earlier decision of the Jefferson County Circuit Court.
     In a 2013 lawsuit against the Alabama Board of Dental Examiners, plaintiffs Keith Westphal and Joyce Osborn Wilson claimed that certain portions of the Alabama Dental Practice Act were unconstitutional.
     Specifically, they challenged the aspects of the law making it illegal for non-dentists to perform teeth-whitening services, such as at shopping malls or salons.
     The lower court granted summary judgment in favor of the dental board, however, and the two non-dentists appealed to the Alabama Supreme Court.
     According to the Alabama Supreme Court’s June 5 ruling, dental boards generally have opposed the spread of non-dentist teeth-whitening services.
     “Although the sale of teeth-whitening products directly to consumers is largely unregulated, the advent of non-dentist teeth-whitening services has met with resistance from some state dental boards, which have argued that teeth-whitening services constitute the practice of dentistry and, as such, should be performed only by licensed dentists,” Justice James Allen Main wrote in the opinion.
     In appealing the lower court decision, the appellants argued that the law’s “professional-licensing requirement” deprived them of their due-process guarantees under the Alabama Constitution.
     “Specifically, they contend that the statute that prohibits non-dentists from performing teeth-whitening services is an unreasonable and arbitrary exercise of the police power,” Main wrote.
     The Alabama Supreme Court disagreed, however, finding that teeth-whitening services are reasonably related to public health and safety.
     “Teeth whitening is a form of dental treatment that requires the application of a chemical bleaching agent directly to the customer’s teeth. The evidence in the record indicates that the procedure is relatively safe but that it is not without potential adverse effects,” Main wrote.
     The various health concerns associated with teeth whitening, which include possible peroxide burns and tooth sensitivity, “do not appear trivial,” Main wrote.
     “Given the deferential standard of review in a statutory challenge, we cannot say that the provision that includes teeth-whitening services within the scope of the practice of dentistry, thus limiting the performance of those services to licensed dentists, violates the due-process protections of the Alabama Constitution.”
     The ruling appears to fly in the face of a February ruling by the U.S. Supreme Court, which held the North Carolina state dental board overstepped its authority when it directed non-dentists to stop offering teeth-whitening services to their customers.
The 6-3 vote upheld the position of the Federal Trade Commission, which had said the actions of the North Carolina Board of Dental Examiners deprived consumers of the benefits of price competition and a choice of services.
     In an opinion written Justice Anthony Kennedy, the Justices said that while state entities are usually exempt to federal antitrust claims, the exemption did not apply in this case because the dental examiners are not directly overseen by the state and because the board was made up of self-interested parties.
     The case is the latest example of a philosophical clash between the Alabama Supreme Court and the federal judiciary.
     The state’s highest court has been sparring with U.S. District Judge Callie V.S. Granade since January, when the federal judge declared Alabama’s ban on same-sex marriage unconstitutional.
     In response, the Alabama Supreme Court directed probate judges across the state not to issue marriage licenses to same sex couples, and since then, Judge Granade has reaffirmed her contention that the ban on same-sex marriage in unconstitutional and enjoined probate judges from enforcing it.
     Both sides await a pending ruling on the issue from the U.S. Supreme Court, which could come any day now.
     In regard to the Alabama Supreme Court’s ruling on teeth-whitening, Institute for Justice Senior Attorney Paul Sherman, who served as lead counsel for the plaintiffs in the case, said in a written statement that, “[t]oday’s ruling doesn’t protect public safety; it protects licensed dentists from honest competition.”
     “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 out clients,” Sherman continued. “The Alabama Supreme Court has allowed dentists to regulate their competitors out of existence for no good reason.”

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