FTC: Dental Board Cannot Order Nondentists to Stop Whitening

Laird Harrison

December 20, 2011

December 20, 2011 — The North Carolina Board of Dental Examiners cannot order nondentists to stop whitening teeth, the US Federal Trade Commission (FTC) has ruled.

The December 2 ruling could have implications for tooth whitening by nondentists in other states, and for the scope of dental boards in general.

The North Carolina board plans to appeal, board attorney Noel Allen told Medscape Medical News. "It's a very unique and radical position that the FTC is taking," said Allen. "It runs contrary to the way states protect their citizens."

At the heart of the case is a question about whether the board is acting more as an arm of the state government, enforcing the law, or as a trade association, to benefit its members.

As in many other parts of the country, nondentists in North Carolina offer tooth whitening services, often in shopping mall kiosks. FTC investigators found that nondentists typically charge between $100 and $150 per whitening session, whereas dentists charge between $300 and $700.

State law says that only dentists can remove stains from teeth, and many dentists complained about cosmetologists and other nondentists offering this service.

As a result, around 2006, according to the FTC, the board began sending out letters ordering nondentists to cease and desist, as well as to mall owners asking them not to lease space to the whitening kiosks.

That would be all right, except that the board consists of dentists elected by other dentists, FTC Complaint Counsel Rick Dagen told Medscape Medical News. "Dentists can't make decisions to exclude competition on their own," he said. "It has to be a decision made by the state."

Boards in other states are appointed by state officials or answer to other departments of the state government, said Dagen, so their circumstances might be different.

What can the North Carolina board do about the whitening by nondentists? It can write letters telling them that it is investigating them and that it might take them to court, said Dagen. Or it can go ahead and sue them. In this way, the decision would rest with the court, an impartial body. But the board cannot simply order nondentists to stop whitening teeth. "There is nothing in the state statute that said they had the authority to do this," he said.

Allen argues that the board is indeed a part of state government and that it is not only authorized but legally obligated to tell nondentists to stop whitening teeth.

The board did sue 4 individuals, but in addition, the letters it sent were within its powers, said Allen. "All the board was doing was enforcing the letter of the law," he said. "And they are sworn to do that. If you look at these letters, they never even mention teeth-whitening. All they said was, 'If you are engaged in the practice of dentistry, please stop.' "

Furthermore, the board was acting to protect the health and safety of consumers who might be harmed by incompetent tooth whitening services, Allen said.

He cited the example of a patient who got a whitening treatment at a kiosk, then left on an ocean cruise. While on the cruise, the patient suffered gingival damage so severe he had to leave to seek medical care, according to Allen. "These chemicals are strong," he said.

In a trial before an administrative law judge, who ultimately ruled in favor of the commission, the board brought in a witness who testified that the chemicals could be dangerous for nondentists to use.

The FTC responded with its own witness, who said whiteners were safe for nondentists to use. Dentists, too, have sometimes harmed patients in whitening procedures, Dagen pointed out.

Ultimately, Chief Administrative Law Judge D. Michael Chappell set this issue aside, ruling that health and safety issues were not adequate reasons to restrain competition. If the board believed that patients were in imminent danger (eg,, from a nondentist filling teeth), it could call police to enforce the law, said Dagen.

"The board cannot justify restricting consumer choice of competitive procedures by asserting that they are protecting public health," he said.

The FTC's ruling was the culmination of a process that began in June 2010 with an administrative complaint by the FTC staff. After the trial before Chapell, who ruled in favor of the FTC staff on July 19, 2011, the board appealed to the full FTC, which issued its ruling earlier this month.

The North Carolina board now has 2 months to ask for a stay against the ruling. If it does not get one, then it will have to abide by the FTC's order that it cease and desist telling nonwhitening dentists to cease and desist, at least while it prepares to appeal once again.

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