- Associated Press - Friday, October 3, 2014

MONTGOMERY, Ala. (AP) - A judge on Friday upheld Alabama’s law restricting teeth-whitening services outside of dental practices and ruled the law is designed to protect the public’s health.

A North Carolina man and an Alabama woman who sell teeth-whitening products had sued the Alabama Board of Dental Examiners in an attempt to offer their products in Alabama. They said Alabama’s law restricting teeth-whitening services was designed to protect the state’s 3,600 dentists from competition.

In an 11-page ruling Friday, Jefferson County Circuit Judge Elisabeth A. French said teeth-whitening products pose health risks and the restriction on non-dentists offering products containing up to 16 percent hydrogen peroxide “is reasonably designed to protect the health of Alabama citizens.”

Keith Westphal, who operates teeth-whitening businesses in shopping centers in Cornelius, North Carolina, and Joyce Wilson, a Jasper businesswoman who offers teeth-whitening systems through the Internet, sued the dental board over a 2011 law that expanded the definition of dentistry to include bleaching teeth. That blocked businesses such as nail salons from selling teeth-whitening products and letting customers apply them in the store.

The judge rejected the business owners’ argument that the law is designed to protect dentists from lower-priced competition. “The factual record in this case demonstrates numerous actual or potential health and safety risks. The Legislature should be concerned with protecting the oral health and safety of citizens,” she wrote.

The executive director of the dental board, Susan Wilhelm, said the board was pleased with the ruling. “We believe the board will be able to continue to do its duty to protect the public, as mandated by the Legislature,” she said.

The business owners were represented by the Institute for Justice, based in Arlington, Virginia. Institute attorney Paul Sherman said the case will be appealed to the Alabama Supreme Court.

“The Alabama Constitution protects the right to earn an honest living subject only to reasonable government regulation, and there is nothing reasonable about requiring a person to have eight years of higher education before they can sell an over-the-counter product that customers may apply to their own teeth,” Sherman said.

The institute said the U.S. Supreme Court will hear arguments Oct. 14 in a similar case involving the North Carolina State Board of Dental Examiners.

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