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Court Upholds Teeth-Whitening Restrictions, Dentists Rejoice

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By Casey C. Sullivan, Esq. on July 22, 2015 6:59 AM

Dentists have a new reason to smile after the Second Circuit upheld Connecticut regulations requiring that certain teeth-whitening procedures be performed only by licensed dentists. The procedure in question involves shining a low-powered LED light into a customer's mouth for 20 minutes, so it's not exactly major surgery -- but it's risky enough to justify the restriction and survive rational basis review, the Court ruled.

The court's highly deferential ruling means that it will be a bit harder to get whiter teeth on the cheap in Connecticut. It also contrasts with a recent Supreme Court ruling that struck down similar restrictions in North Carolina.

Basic Rational Basis

Sensational Smiles, a teeth-whitening business, had been offering whitening procedures in Connecticut without a dentist's involvement. When the state Department of Public Health told them to stop, they sued, saying the restriction violates the Equal Protection and Due Process Clauses because there is no rational justification for it.

The Second Circuit disagreed. Since the regulation touched on no fundamental rights or suspect classifications, it was subject only to the requirement that it have a rational relationship to a legitimate legislative purpose. That's a low bar to get over, the Second Circuit emphasized, and the regulation easily did so. There are at least some safety concerns involving the use of lights in teeth whitening, including tooth irritation and lip burns. That's good enough.

But What About the Supreme Court?

Interesting, the Supreme Court addressed a similar teeth-whitening case this last term and came to a different conclusion. In North Carolina State Board of Dental Examiners v. FTC, the Supreme Court ruled that the state dental board impermissibly banned cheap teeth-whitening procedures by non-dentists. Like in Connecticut, North Carolina regulation had been urged by the state dental commission run largely by dentists. Like in Connecticut, the state regulation attempted to stop nondentists from undermining whitening prices.

That, however, may be where the similarities end. In the North Carolina case, the FTC alleged that the state dental commission was acting as a trade group, not a state agency, when banning the procedures. Using the power of a professional trade group to limit competition violated federal antitrust laws, the Supreme Court ruled.

Here, in contrast, Sensational Smiles challenged the regulation on constitutional, not antitrust grounds. Had they filed a complaint with the FTC, Connecticut's teeth-whitening market might be a different place today.

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