In 2008, Lisa Martinez opened a teeth whitening salon at a mall in Waterford, Connecticut. The business thrived. But thanks to a recent decision by the Connecticut State Dental Commission, Martinez could face a felony charge punishable by up to five years in prison and $25,000 in fines if she continues to brighten smiles.
Businesses like Martinez's have gobbled up the teeth whitening market in recent years, applying over-the-counter products for about a quarter of what dentists charge. That may explain why the commission, which consists almost entirely of licensed dentists, made it a crime last June for anyone but a licensed dentist to offer such services.
The commission has statutory authority to define "the practice of dentistry," which requires a state license. In concluding that teeth whitening qualifies, it cited "inherent risks" associated with the service. But its chairwoman, Jeanne Strathearn, admitted there were no "reports of specific harm." Even the typically restrictive Food and Drug Administration permits anyone, including children, to purchase and use whitening kits without prescription or supervision.
In November the Institute for Justice, a public interest law firm, challenged the commission's decision in federal court, arguing that the Constitution protects the right to earn a living free from unreasonable regulations that benefit only special interests. "The Dental Commission's ruling," staff attorney Paul Sherman said in a press release, "has nothing to do with public health or safety and everything to do with protecting licensed dentists from honest competition."