- Associated Press - Thursday, September 4, 2014

BIRMINGHAM, Ala. (AP) - Businesses asked a judge Thursday to overturn an Alabama law restricting teeth-whitening services outside of dental offices, arguing the law is an unconstitutional attempt by the state’s 3,600 dentists to create a monopoly.

Lawyers for a North Carolina man and an Alabama woman who sell teeth-whitening products told Circuit Judge Elisabeth A. French during a hearing that the law is an illegal restriction on a business that’s never hurt anyone.

The Alabama Board of Dental Examiners argued that teeth-whitening could pose a health threat, and that was enough reason for legislators to pass the law.

The judge said she would rule later on whether to end the lawsuit, filed last year.

Attorneys for businesses trying to block the law said about 30 states have passed restrictions on teeth-whitening products or services, and similar court fights are going on in Connecticut, Georgia and North Carolina.

Alabama legislators passed a law three years ago saying businesses like nail salons can’t sell teeth-whitening products. Violators can be fined $5,000 and jailed for a year, but consumers can still buy the products in retail stores and use them at home with no supervision.

Paul Sherman, representing teeth-whitening entrepreneurs Keith Westphal, of Mooresville, North Carolina, and Joyce Osborn Wilson, of Jasper, told French no one has been seriously harmed by teeth-whitening products and the law doesn’t make sense from a health standpoint.

“It is unreasonable, it is irrational and it is unconstitutional,” Sherman told the judge.

The real aim of the law is to protect dentists’ practices from competition since they charge far more for teeth-whitening treatments than businesses like nail or tanning salons, Sherman said. While a salon might charge less than $100, he said, a dentist might charge as much as $650 for whitening.

Rusty Dorr, representing the state dental agency, said the law can stand if there was any reasonable cause for lawmakers to pass it, and uncertainty over the safety of teeth-whitening is enough justification.

“We submit to you that that uncertainty is all that is required for the Legislature to act,” said Dorr.

The judge said she would rule later on whether to let the lawsuit continue.

While Alabama has some 3,600 licensed dentists, it was unclear how many businesses were affected by the 2011 law.

Sherman said Westphal, who isn’t a dentist but whitens teeth in North Carolina, wants to expand into Alabama but can’t because of the law. Wilson received a cease-and-desist letter from the state after the law took effect and was forced to quit selling teeth-whitening products in Alabama, said Sherman, from the Virginia-based Institute for Justice.

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