Over the past decade, drug stores and dentists’ offices saw glowing profits selling and applying smile-brightening strips, toothpastes, and other brilliant innovations. Their success inspired a cottage industry offering competing services out of spas, salons, and mall kiosks. Dentists complained, and since 2005 at least 25 states have ordered teeth-whitening businesses to close, on the grounds that whitening services should be performed only by state-certified dentists and hygienists, according to Angela Erickson, a research analyst at the Institute for Justice, a public-interest law firm in Arlington, Va. “It’s what you call license creep,” she says.
On April 30 the Institute for Justice filed suit (PDF) in Alabama, arguing that state regulations that restrict teeth-whitening services to the dentist’s office unfairly stymy competition. The firm filed a similar lawsuit (PDF) in Connecticut in 2011, in a case that will likely go to trial in November. Meanwhile, Erickson published a report criticizing 14 states that have written laws to make teeth whitening the sole domain of dentists and licensed hygienists.
The Institute for Justice is one of a handful of law firms that parachute into regulatory disputes across the country and bring lawsuits on behalf of small businesses. The firm works pro bono and concentrates on four favorite libertarian causes: private property, economic liberty, free speech, and school choice. Some of its other notable cases include a recent lawsuit to allow Benedictine monks to sell low-cost caskets without a certification from the State of Louisiana, and a ruling in favor of California hairstylists to braid hair without a cosmetology license.
Of course, some regulations make more sense than others, and some business ideas shine brighter than the rest. A Kentucky law that lets incumbent moving companies block would-be competitors from getting into the business doesn’t seem to do much public good. There are compelling reasons to sell bulk packages of boneless, skinless chicken breast out of the back of a truck, whatever the regulatory hassle, or to fight to repeal Prohibition-era laws barring wine from being sold in kegs.
Opening a kiosk to sell teeth-whitening services that can be bought over-the-counter and applied at home doesn’t seem like the most dazzling business model. Not that the redundancy of services will make a difference in the Institute for Justice lawsuits. The important question: whether keeping unlicensed entrepreneurs out the business protects public health and safety.
When I asked William Gerrish, the director of communications for the Connecticut Department of Public Health, for the state’s side of the teeth-whitening story, he pointed me to a declaratory ruling (PDF) handed down by the state’s Dental Commission in 2011, which argued that the “inherent risks” in teeth whitening make the practice best suited for licensed dentists. For his part, Institute for Justice lawyer Paul Sherman says risks—tooth sensitivity and sore gums—associated with teeth-whitening products “are exactly the same at home or at the mall or the salon.”