North Carolina dentists sue to keep salons from teeth whitening business

North Carolina dentists are turning to the courts and the Constitution to preserve their exclusive rights to whiten patients’ teeth.

The North Carolina State Board of Dental Examiners has been trying to shut down teeth whitening services offered by mall kiosks, salons and spas. The Federal Trade Commission last year intervened, claiming the dentists were stifling competition. Dentists in North Carolina and around the country argue that teeth whitening is a procedure that should be performed by dental professionals. But that’s not the legal argument the North Carolina board makes in its suit against the FTC. The dental board argues that the federal agency has no business meddling in state matters.

The dental board filed a lawsuit this week in U.S. District Court in Raleigh, claiming the FTC’s actions constituted constitutional violations. The board licenses and regulates dentists. A.P. Carlton Jr., a Raleigh lawyer representing the dental board, told the Raleigh News & Observer that the federal agency’s intervention in a state matter violates the Constitution’s 10^th Amendment, which preserves state sovereignty. Carlton said that the board acts as a state agency and is immune from antitrust charges.

The FTC last June filed a complaint against the dental board, claiming that the board’s orders that non-dentists stop providing teeth-whitening services “are improper and harm competition.” This dispute over teeth whitening touches on another color: green. The FTC said the board’s actions make it harder and more expensive for consumers to get teeth whitening services. A non-dentist can offer a teeth whitening session for between $100 and $150. Dentists charge between $300 and $700, some even up to $1,000. Dentists stand to lose that business if their patients go to a kiosk or salon for their whitening.

Dentists in other states have also sought to restrict non-dentists from offering whitening services. Lawsuits have been filed in New Jersey and Alabama. The American Dental Association in 2009 asked the U.S. Food and Drug Administration to take up the matter and establish a regulatory classification for tooth whitening agents.

So far, the teeth whitening done outside of a dentist’s office is not regarded as a medical procedure. The FDA has yet to classify teeth whiteners as products that fall under its oversight. In fact, teeth whitening products are readily available over the counter in retail stores for consumers to use themselves at home. That leaves the matter of who can or can’t whiten your teeth a gray area that will probably either be decided by a judge or legislators — people you probably don’t want to have anything to do with your teeth in the first place.