The North Carolina Board of Dental Examiners (“NCBDE”) wants to regulate the increasingly popular laser teeth whitening services. These cosmetic treatments are currently available in shopping malls and health and beauty spas around all over North Carolina and the U.S. The question the U.S. Supreme Court is asked to answer is whether these services should be included in the category of dental services that require a licensed dentist to perform.
The NCBDE, according to recent news reports[i], sent at least 47 cease and desist letters to non-dentists in 2003, which included allegations the individuals were practicing dentistry without a license. Many have since closed up shop and are no longer in business.
Is laser teeth whitening a dental practice requiring a dentist?
The laser whitening process often involves disposable strips with whitening agents that are placed on the teeth using whitening strips, and they are regulated by the Food and Drug Administration (“FDA”) as cosmetics. Laser whitening is popular in part because it is a relatively affordable cosmetic treatment at most local malls and spas. If however, you asked your local dentist to whiten your teeth, the same procedure might cost ten times the amount.
Why are dentists so expensive? The value of professionally licensed dental services includes the security of knowing the person performing the whitening process has graduated from dental school and passed required licensing exams. Dentists have unique knowledge and understanding of our teeth and how best to maintain and protect them. In addition, dentists with malpractice insurance pay costly premiums for their policies insuring their dental practice, and in the event a patient is injured or something goes wrong with the procedure the injured party has a better chance at recovering in a malpractice claim or lawsuit. On the other hand, the kiosk at the mall could simply close and disappear leaving an injured person with little recourse.
Should dental boards be allowed to demand to regulate laser teeth whitening and should doctors be able to set their own fees for the cost of these services?
Despite the FDA approval of whitening strips as cosmetics, the NCBDE staunchly opposes non-dentists performing the procedure and turns to the Court for a ruling that this practice should not be completed by any third party who is not a licensed dentist in North Carolina; a ruling in this case could be used as precedent for other states to enact similar regulations to that sought by the NCBDE.
Comments on the law underlying the case plead to the Supreme Court suggest there may be a risk in allowing dentists, and any licensed professional, to be able to solely control the pricing and distribution of services. Justice Samuel Alito stated, “[he was] not attracted to the idea of federal courts looking at state agencies…to determine whether they are really serving the public interest.” In addition, Justice Antonin Scalia stated, “I want a neurologist to decide it.[ii]”
As new developments occur in this case, Michael V. Favia & Associates will offer updates. Attorney Michael V. Favia follows news in professional licensing and the firm represents healthcare professionals such as dentists in their professional licensing and practice of services.
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[i] Business Insider, A Fight For The Right To Whiten Your Teeth Reaches The Supreme Court, Oct. 18, 2014.
[ii] See article listed above in HNi.
