- Associated Press - Friday, June 5, 2015

MONTGOMERY, Ala. (AP) - The Alabama Supreme Court on Friday upheld a lower court’s ruling that teeth-whitening procedures in the state may only be performed by licensed dentists.

The state supreme court said in an opinion that teeth-whitening services are considered the practice of dentistry, and the state Legislature amended the law in 2011 to include teeth bleaching and whitening services as dental procedures.

Keith Westphal of North Carolina, and Joyce Osborn Wilson of Alabama sell teeth-whitening products and sued the Alabama Board of Dental Examiners in Jefferson County Circuit Court in an attempt to offer their products in Alabama. Westphal canceled plans to expand his business in the state, and Wilson stopped selling her products after she was given a cease-and-desist letter from the state dental board.

The pair argued the portion of the state’s law restricting teeth whitening to dental professionals is unconstitutional and meant to shield dentists from competition. The pair also said the law meant that consumers were forced to pay much higher prices for whitening services by licensed practitioners.

Circuit Judge Elisabeth A. French said in her October ruling that teeth-whitening products pose health risks and the restriction on non-dentists offering products containing up to 16 percent hydrogen peroxide was designed to protect the health of Alabamians.

The Alabama Supreme Court said teeth-whitening services have impacts on public health, and the law limiting execution of the procedures to licensed dentists does not violate due-process protections in the state constitution.

The Virginia-based Libertarian group, Institute for Justice, issued a statement blasting the court’s ruling.

“Literally millions of people have safely whitened their teeth at home using products bought online or in stores that are identical to those sold by our clients,” the organization’s senior attorney, Paul Sherman, said in the statement. “The Alabama Supreme Court has allowed dentists to regulate their competitors out of existence for no good reason.”

In February, the U.S. Supreme Court ruled that a North Carolina regulatory board had violated federal antitrust laws against unfair competition when it tried preventing low-cost teeth-whitening services from operating in the state.

“I was eager to expand my business into Alabama, to offer new services and help create new jobs,” Westphal said in a statement. “It makes no sense that the government would prevent me from doing that, especially in light of the recent U.S. Supreme Court ruling.”

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