Business owners challenge teeth whitening restrictions

Until recently, you could find Stephen Barraco’s Smile Bright teeth whitening products in hair and nail salons, selling for a fraction of what you might pay in a dentist’s office.

But now, Barraco’s Branford-based business is limited to the Internet, and he’s laid off his five employees –the result, he says, of a declaratory ruling by the Connecticut State Dental Commission that restricts who can whiten teeth.

“We can’t offer our products and services in salons,” he said.

On Wednesday, attorneys for Barraco, his business partner and the owner of a now-closed teeth whitening business plan to file a federal lawsuit challenging the commission’s ruling. Paul Sherman, a staff attorney at the Institute for Justice, a Virginia libertarian law firm that represents the business owners, said the dental commission’s ruling was intended to protect dentists from competition, not to protect public safety.

Long performed in dental offices, teeth whitening has become an increasingly common offering in other settings, available in salons, spas and shopping malls. It’s an $11 billion business, according to the Council for Cosmetic Teeth Whitening, which argues that the procedure is a cosmetic process, not a dental one.

Dentists have taken the opposite view, arguing that non-dentists could miss underlying diseases that cause discoloration and that dentists should be involved for safety reasons.

The state dental commission ruled in June that teeth whitening is dentistry, making non-dentists who perform it under certain circumstances subject to fines or prison time. Those circumstances include performing teeth whitening if the procedure involves diagnosis, evaluation, prevention or treatment of discoloration or another condition.

The ruling does not prohibit non-dentists from selling teeth-whitening gels and notes that cases will be judged based on overall circumstances. But it says that applying tooth whitening gel to another person constitutes dentistry, as does providing personalized instruction to a customer based on an assessment, and supervising the use of tooth bleaching or lightening fluids, pastes, gels, solutions or other whitening agents.

Under the ruling, non-dentists who perform those services would be in violation of state law.

The seven-member panel that issued the ruling included six dentists and one public member, and Sherman said the ruling was a way for licensed dentists to avoid competition.

“The Constitution protects the right to earn an honest living free from unreasonable or arbitrary government interference,” said Sherman, who represents Barraco, his business partner, Tasos Kariofyllis, and Lisa Martinez, who ran a teeth whitening business at the Crystal Mall in Waterford that shut down after the commission’s ruling.

Sherman said several other states have also moved to restrict teeth whitening businesses. “This is a growing problem nationwide,” he said. “We’re seeing dentists trying to stamp out competition in the teeth whitening industry.”

Barraco sees it as a price issue, since his customers were paying far less than what a dentist would charge. Before the ruling, his customers would buy the product, a mouth tray, and time in front of a light in the salon, where they could use it. Barraco noted that clients used the products by themselves and said his business shouldn’t be considered dentistry.

“All we’re looking for is to operate in this state and sell our products in this state,” he said. “In this economy, you’re looking for a good price and there are a lot of people out of work, and the first thing when you go into a job interview is people look at your face.”

But Dr. Jeanne Strathearn, chairwoman of the commission and a West Hartford dentist, said the ruling was not a way for dentists to keep the business to themselves.

“We’re not trying to restrain trade. We’re not trying to stop anyone from doing any practices,” Strathearn said. Instead, she said, the commission is concerned about non-dentists performing dental procedures that carry inherent risk.

Strathearn said the action on teeth whitening stemmed from complaints to the state Department of Public Health. “We have not specifically had any cases brought to us where there was harm done, but there has been harm done in the past,” she said.

The ruling cited potential risk to patients from tooth whitening products, including tooth sensitivity and tissue burns from the chemicals in whitening products and risks associated with the use of light in office bleaching procedures.

“The decision of whether to recommend or apply bleaching agents and/or bleaching lights to a particular person’s teeth requires significant diagnostic expertise and skills, in part, to allow the provider to distinguish between pathological versus non-pathological causes of teeth discoloration,” the ruling said.

Dr. Jon Davis, a Fairfield dentist who testified before the dental commission on behalf of the Connecticut State Dental Association, said the concerns about teeth whitening done outside dental offices come down to safety and diagnosis.

A person considering teeth whitening should first have an exam to determine what caused the discoloration, he said, since a patient could have decay between their teeth that should be treated or staining that would likely not be removed by whitening.

The strength of the whitening product is also a concern, he said. As concentrations of carbomide peroxide in a whitening product increase, patients face a greater risk of irritation or burning of the gum tissues, but Davis said there is a risk even at the minimum concentration dentists use.

By contrast, Davis said, the teeth whitening products sold in stores are not as strong, and the association isn’t concerned about them.

“The important thing is that we’re not trying to squash it altogether,” Davis said. “We just want to make sure people are being treated safely and appropriately … and [providers] use material that you’re not going to do any harm with.”

In Strathearn’s practice, patients who are interested are first examined to make sure they’re proper candidates, she said. They’re then advised to start with Crest White Strips, an over-the-counter product that she said is mild, effective and does not cost a lot of money. If they like the results, patients can then receive additional whitening procedures.

Barraco said it’s valid for dentists to want patients to have an exam before having their teeth whitened. When his company sells products, customers are given a questionnaire that asks about several factors, including whether they are over 18, pregnant or breastfeeding, in good standing with their dentist or had oral surgery recently. If the answer indicates they aren’t in good standing with their dentist, or have another factor that could be a problem, he won’t sell it, nor would his former sales staff in the past. He noted that it’s a level of monitoring that does not apply to the teeth whitening products sold in drug stores.

The lawsuit will be filed against public health Commissioner Dr. Jewel Mullen and the members of the state dental commission.