Alabama is the latest state to take a stand on who can and cannot perform office-based teeth bleaching. A court has ruled that whitening procedures offered by beauty parlors, freestanding kiosks, and other commercial settings constitute the practice of dentistry and require a license.
Although the judgment was handed down by the Montgomery County Circuit Court -- not a state or federal court -- the Alabama Board of Dental Examiners said it will be enforced statewide.
Teeth-whitening kiosks run by nondentists are tempting to consumers because of lower per-procedure prices, and this is not the first time they have been accused of encroaching on dentists' territory.
Tennessee and Oklahoma have already banned commercial teeth-whitening operations.
As reported last year by DrBicuspid.com, these kiosks offer a less expensive alternative to having the work done by a dentist. Procedures that might cost $400 to $500 at a dentist's office, for example, can run patients only about $100 to $140 at a mall-based center.
The arguments against these centers are that they do not observe proper infection control and sanitization protocols, the personnel are not required to have any kind of dental training, and there is no way of knowing exactly what materials these centers are using.
This latest judgment is the result of a lawsuit filed by White Smile USA and its business partner, d'Markos, after the state Board of Dental Examiners sent an investigator to d'Markos Salon, which uses White Smile's products. White Smile licenses its whitening products to businesses throughout Alabama, and filed the lawsuit because it wanted the court to clarify that these businesses do not constitute the practice of dentistry.
Instead, Judge Tracy McCooey declared that "the processes by which the plaintiffs provide teeth-whitening services constitute the performance of a dental operation," according to a press release issued by the Alabama Board of Dental Examiners.
In particular, she noted that "the fact that citizens of this state may purchase and apply tooth-whitening products approved by the FDA for 'over the counter' sale in their homes does not permit plaintiffs or others not properly licensed to advertise and perform dental services or operations which affect the public health, safety, and welfare," the press release stated.
White Smile adamantly disagrees with this judgment and plans to appeal, a company representative told DrBicuspid.com.
Meanwhile, the Board of Dental Examiners is warning all commercial teeth-whitening businesses in Alabama that they are in violation of state law and that their failure to cease and desist will result in appropriate action.
"The board's viewpoint of what constitutes dentistry is too broad," said the White Smile representative, who did not wish to be named. "The board is overstepping its regulatory boundaries."
The businesses are not diagnosing anything, not doing invasive procedures, changing the structure of the teeth, or telling the customers that the attendants are dentists, he added.
Hydrogen peroxide is considered a cosmetic product by the U.S. FDA, and consumers have a right to whiten their teeth in any way that they like, he said.
Jim Ward, legal counsel for the Alabama Board of Dental Examiners, said the judge found that the procedures being offered by these facilities were not self-administered.
"The Court finds it significant that the Plaintiff White Smile USA, Inc. has adopted and published to its business partners, including Plaintiff d'Markos, L.L.C., 'Application Instructions' for their cosmetic teeth whitening system that include a process of some twenty-seven different steps, many of which call for active participation by the technicians identified in White Smile USA's own literature as 'cosmetic teeth whitening specialists,' " the board stated in its press release.
White Smile defended this charge and said the staff was trained purely to provide customer service.
"We teach these people to talk to customers, make them comfortable, and not to do anything that would be considered dentistry," explained the White Smile representative.
The judge also cited White Smile for possibly compromising the heath and safety of its customers in performing teeth whitening, according to the dental board press release.
There are concerns regarding sanitization, infection control, and proper waste disposal at these businesses, Ward said. Dentists have to follow regulations that these businesses do not have to follow.
"It's a very sanitary process. People have more chance of getting disease at a restaurant," argued White Smile's representative. "Whitening is a safe procedure. Nothing more than beautification is being done."
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