Alabama judge rules commercial teeth whitening within dental practice scope
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Posted March 4, 2009 |
By Jennifer Garvin Montgomery, Ala.—A state court judge has ruled that commercial teeth whitening services "fall within the scope of the practice of dentistry" as defined in the Alabama Dental Practice Act, and has decreed that "in the best interest of health, safety and welfare of the public … a properly trained and licensed dentist will better serve the individual patient and the public at large in this regard."
Since January 2008, the Alabama Board of Dental Examiners has been in dispute with White Smile USA Inc., and D'Markos, an Alabama limited liability company doing business as Randall's.
White Smile USA is a Georgia-based corporation that markets and supplies businesses with whitening products (gels, bite registration trays and lights) for sale to the general public in 15 states, including Alabama. Businesses contracting with White Smile USA can be found in malls or in stores and work by having the customers insert their own whitening trays.
According to its Feb. 10 order, the court found it significant that White Smile adopted and published for its business partners, including D'Markos, "application instructions for their cosmetic teeth whitening system that include a process of some 27 different steps," many of which call for active participation by the technicians identified in White Smile's own literature as "cosmetic teeth whitening specialists."
These details, along with White Smile's own literature, prompted Judge Tracy S. McCooey to say that these types of services "constitute the performance of a dental operation and not merely the sale of a product."
"Judge McCooey's decision was made in the best interest of the citizens of Alabama. Injuries, infections and/or pain could result from exposure to procedures that may be inappropriate for an individual's unique set of dental and physical needs," said Dr. Karen McCaffery, president, Alabama Board of Dental Examiners. "The persons performing the bleaching procedures are inadequately trained in infection control and are not regulated by any health agencies. These are the reasons that bleaching procedures must involve your dentist."
White Smile's literature also said that technicians were "trained to consult with you on an individual basis to identify any potential issues you may have." That led the Montgomery Court to rule that safety was the most important issue at stake.
"It's the Court's opinion that White Smile's attempts to emphasize safety accentuates what is clearly an important aspect of this case: the health, safety and welfare of the citizenry of [Alabama]" and teeth whitening risks "cross contamination and the spread of disease and/or infection," the court's ruling said.
Judge McCooey heard oral arguments Feb. 2 in the Circuit Court for Montgomery County, Ala. Ironically for White Smile and D'Markos, the hearing came before the court in a lawsuit they had filed for a declaratory judgment determining that their teeth whitening process does not constitute the practice of dentistry and is not subject to regulation by the state dental board.
In January 2008, the two businesses had filed a complaint against the Alabama Board of Dental Examiners in state court which cited a December 2007 civil complaint filed against another business offering cosmetic whitening services in a Birmingham mall.
The dental board's actions, White Smile alleged, will impair its ability to operate a business. White Smile indicated that it enters into contractual relationships with its clients by selling them products to use in their teeth-whitening businesses. White Smile further alleged these services fall within the Food and Drug Administration's definition for cosmetic (articles to be "rubbed, poured, sprinkled or sprayed on, introduced into, or otherwise applied to the human body"), that its whitening agent falls within the realm of those sold in drugstores and its business should not be called the practice of dentistry.
"We're going to appeal in Alabama," said Jim Valentine, co-owner and founder of White Smile USA. "In the other states it's business as usual."
Mr. Valentine added that in 2008 the company served some 80,000 customers and said that no long-term side effects were reported nor did anyone call the company's 800-line to complain they had been "tricked" into thinking that whitening was dentistry.
"This is a serious accusation," he said. "They're grouping us with people who pull teeth in back rooms.
"This isn't dentistry," Mr. Valentine continued. "We don't touch customers and we never give advice."
The Alabama Dental Association was satisfied that the court saw it the other way. "We are pleased that the court has made a definitive judgment that they can use," said Wayne McMahan, ALDA executive director.
The Alabama board previously had received complaints from consumers who were harmed by the services and who suffered burns or damage as a result.
Following the judge's ruling, White Smile made an oral motion for a stay pending appeal but it was denied. According to James Ward, board attorney, White Smile can appeal or file for reconsideration or it can file with the Alabama appellate court.
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