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Teeth Whitening and the Law: The Battle Over an $11 Billion Industry

Teeth whitening services have become a fixture of the health and wellness industry. Entrepreneurs, salon owners, and mall kiosk operators have found success in offering basic teeth-whitening kits and services. But in recent years dental boards have encouraged state legislators to push back on the explosion of teeth whitening products and services, which is an $11 billion industry. For dentists and dental practitioners in Illinois, however, the fight over who can perform teeth whitening services was largely side-stepped in 2009 with a small amendment to state law. Over the stringent objections of the Illinois Board of Dentistry, Illinois lawmakers paved the way for consumers to obtain teeth whitening services without going to a dentist.

One of the most common services offered by dentists across the country is teeth whitening. These procedures involve applying peroxide-containing preparations to the teeth, sometimes aided by the application of blue light or light-accelerated bleaching agents, to lighten dental stains. For dentists, there are significant economic advantages to offering such services. By one estimate, members of the American Academy of Cosmetic Dentistry bring in an average of $25,000 annually from teeth whitening alone. Part of this revenue stems from the fact that dentists typically charge two to six times more for teeth whitening services than salons or kiosks.

With so much potential revenue at stake, it is no wonder that dentists and dental boards have been lobbying hard to shut down freestanding teeth whitening businesses. Since the early 2000s, 14 states have changed their laws and imposed outright bans on anyone but licensed dentists, hygienists, and dental assistants performing teeth-whitening procedures. In at least a dozen other states, dental boards have also tried to get such legislation passed.

In Illinois, arguments were heard in 2009 claiming that teeth whitening retailers were putting consumers at risk by practicing dentistry without a license. The Board based its appeal for increased regulation on a claim that teeth whitening procedures performed by anyone other than a dentist endangered the public through an increased chance of injury.  However, this argument was largely unsuccessful because the teeth-whitening services provided in salons and kiosks use the same over-the-counter products that consumers can buy in any drug store.

The U.S. Food and Drug Administration classifies peroxide-based teeth whiteners as cosmetics, not controlled substances. A recent study found that out of 97 health-and-safety related complaints filed across 17 states in a five-year-period, only 4 reported consumer harm related to teeth whitening products, and all 4 were common, reversible side effects of using peroxide products. Based on this information, the minimal risks associated with teeth whitening in a salon or other business are no different than using a do-it-yourself kit purchased at the store. Perhaps as a result of such clear data, the American Dental Association (ADA) itself no longer comments or endorses state-level attempts to ban teeth-whitening services of any kind.

While Illinois didn’t jump on board with the teeth-whitening prohibitions enacted in other states, it did make one interesting change to state law. Illinois is one of the few states that explicitly allow teeth-whitening entrepreneurs to offer their services without the aid of a licensed dentist. This is because Illinois law does not categorize teeth whitening procedures as “practicing dentistry.” According to Section 8 of the Illinois Dental Practice Act, it is legal for anyone to apply or sell teeth whitening materials as long as the person first “discloses to the consumer that he or she is not licensed as a dentist” and “(i) discusses the use of teeth whitening materials with a consumer purchasing these materials; (ii) provides instruction on the use of teeth whitening materials with a consumer purchasing these materials; or (iii) provides appropriate equipment on-site to the consumer for the consumer to self-apply teeth whitening materials” (225 ILCS 25/8(11)). As long as these conditions are met, salons and kiosks can continue to provide lower-cost teeth whitening services to Illinois consumers.

The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact an attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.

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