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By Dan Schulte, J.D.
MDA Legal Counsel
From the February 2012 issue of the Journal

Question: I read that the Federal Trade Commission recently ruled that North Carolina could not prohibit non-dentists from providing teeth-whitening products and services. Is this true? Does this mean Michigan's Board of Dentistry likewise cannot regulate teeth-whitening services and products being provided by non-dentists?

Answer: On Dec. 2, 2011 the FTC ordered the state of North Carolina to stop all its efforts to prevent non-dentists from providing "teeth whitening goods" and "teeth whitening services."

In 2006, North Carolina, through its Board of Dental Examiners, began sending letters to non-dentist providers of teeth-whitening products and services directing them to cease and desist from providing these products and services. Letters were also sent to mall owners/operators that allowed teeth-whitening products and services to be sold at mall kiosks. These letters warned that they were facilitating the illegal practice of dentistry and may themselves be liable.

The basis for the FTC's ruling was that: (1) no statutory authority existed for the cease-and-desist letters; (2) no harm to the public resulting from non-dentists providing teeth whitening products and services was demonstrated; and (3) the actions of the North Carolina Board served only to restrict competition in the market for these profitable and highly sought dental services.

Would the result be the same if Michigan's Board of Dentistry sent cease-and-desist letters to non-dentists providing teeth whitening products and services? Not necessarily.

There is a significant difference between the law of North Carolina and Michigan. In 2010 Michigan House Bill 5614 became law, amending MCL 333.16233 to specifically grant the Michigan Board of Dentistry (and the other boards regulating the health professions) the authority to order non-dentists to cease and desist from providing those services that are within the scope of the practice of dentistry. This is not the case under the law of North Carolina. The North Carolina Board had the authority only to "bring an action to enjoin the practice in North Carolina Superior Court" or to "refer the matter to the district attorney for criminal prosecution."

Because the Michigan Board of Dentistry has the specific statutory authority that the North Carolina Board lacked, this case might have been decided differently if it involved the Michigan board taking similar action against non-dentists.

Also missing from North Carolina's defense to the FTC's enforcement action was proof of a negative effect on the public health and safety by allowing non-dentists to provide teeth-whitening products and services. The FTC in its opinion characterized the risks presented by the North Carolina Board as "theoretical" and noted its inability to cite "any clinical or empirical evidence validating any of these concerns." The opinion further points out that North Carolina's own expert witness testified that "he was unaware of any scientific evidence demonstrating any consumer injury from non-dentist teeth whitening." Apparently this expert witness' testimony dealt mainly with teeth whitening that may "mask a pathology." This testimony was countered by the FTC's expert who testified that it is highly unlikely that teeth bleaching would make teeth so white as to make pathology undetectable by a dentist or for the pathology not to present other symptoms, such as swelling, purulence, pain, redness, etc. The absence of even a single study or case reporting an incident of masked pathology from any form of teeth bleaching despite the millions of instances of teeth whitening was also compelling.

Since the Michigan Board of Dentistry has the specific statutory power to issue cease-and-desist orders to non-dentists providing dental services, the question in any FTC enforcement action would be to what extent it would be required to show actual harm to the safety and health of patients receiving teeth-whitening products and services from non-dentists. The North Carolina FTC case shows that state action against non-dentists where the state has weak evidence of damage to the public's health and safety (and instead significant damage to competition for a desired product/service is shown) will be viewed as suspect.

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