June 5, 2015
Keith Westphal and Joyce Osborn Wilson
J. David Northcutt III, DMD; Bobby R. Wells, DMD; Stephen R. Stricklin, DMD; Thomas T. Willis, DMD; Sam J. Citrano, Jr., DMD; William Chesser, DMD, and Sandra Kay Alexander, RDH, in their official capacities as members of the Alabama Board of Dental Examiners
for Publication April 28, 2016.
from Jefferson Circuit Court. (CV-13-901678). Elisabeth A.
French, Trial Judge.
Appellants: Paul M. Sherman, Institute for Justice,
Arlington, Virginia; Arif Panju, Institute f or Justice,
Austin, Texas; and Ed R. Haden and Charles B. Paterson of
Balch & Bingham LLP, Birmingham.
Appellees: Luther M. Dorr, Jr., of Maynard, Cooper & Gale,
P.C., Birmingham; and Susan F. Wilhelm, deputy atty. gen.,
Alabama Board of Dental Examiners.
Justice. Moore, C.J., and Stuart, Bolin, Murdock, Wise, and
Bryan, JJ., concur. Parker and Shaw, JJ., concur in the
Westphal and Joyce Osborn Wilson filed this lawsuit against
David Northcutt III, DMD, Bobby R. Wells, DMD, Stephen R.
Stricklin, DMD, Thomas T. Willis, DMD, Sam J. Citrano, Jr.,
DMD, William Chesser, DMD, and Sandra Kay Alexander, RDH, in
their official capacities as members of the Alabama Board of
Dental Examiners (hereinafter referred to collectively as
" the Dental Board" ). Westphal and Wilson sought a
judgment declaring unconstitutional the portion of the
Alabama Dental Practice Act, § 34-9-1 et seq., Ala. Code
1975, that makes it unlawful for anyone other than a duly
licensed dentist to perform teeth-whitening services and
sought a permanent injunction forbidding future enforcement
of the prohibition in the Act on teeth-whitening services
performed by non-dentists. The parties submitted
cross-motions for a summary judgment, and the Jefferson
Circuit Court entered a summary judgment in favor of the
Dental Board and against Westphal and Wilson. Westphal and
Wilson appeal. We affirm.
I. Facts and Procedural History
bleaching, commonly known as " teeth whitening," is
a procedure that temporarily lightens the color of a
person's teeth by application of a peroxide-based
solution. Traditionally, consumers had the option of "
professional grade" teeth-whitening services provided by
licensed dentists or " consumer grade"
over-the-counter teeth-whitening products sold at local
pharmacies. Non-dentist entrepreneurs have also entered the
teeth-whitening market, offering teeth-whitening services in
salons, spas, or mall kiosks. Generally, non-dentist
teeth-whitening providers assist the customer, either
directly or indirectly, in applying the whitening solution
and typically use a light source to accelerate the whitening
the sale of teeth-whitening products directly to consumers is
largely unregulated, the advent of non-dentist
teeth-whitening services has met with resistence from some
state dental boards, which have argued that teeth-whitening
services constitute the practice of dentistry and, as such,
should be performed only by licensed dentists. See, e.g.,
North Carolina State Bd. of Dental Exam'rs v. Federal
Trade Comm'n, __ U.S. __, 135 S.Ct. 1101, 191
L.Ed.2d 35 (2015); Martinez v. Mullen, 11 F.Supp.3d
149 (D. Conn. 2014). In White Smile USA, Inc. v. Board of
Dental Examiners of Alabama, 36 So.3d 9 (Ala. 2009), we
were confronted with just such a controversy. In that case we
determined that the non-dentist teeth-whitening services at
issue there constituted the " practice of
dentistry" as that phrase was then defined by §
34-9-6, Ala. Code 1975. In 2011 the legislature amended
§ 34-9-6 to expressly include teeth bleaching or
whitening within the practice of dentistry. Thus, Alabama law
now prohibits nondentists from offering teeth-whitening
services. The Alabama Board of Dental Examiners is
responsible for enforcing Alabama's Dental Practice Act.
§ 34-9-40(a). By statute, the Board consists of six
dentists and one dental hygienist.
and Wilson each desire to operate a teeth-whitening business
in Alabama. Neither Westphal nor Wilson, however, is a
licensed dentist, and neither has any dental training.
Westphal canceled plans to expand his North Carolina-based
teeth-whitening business into Alabama when he learned such a
business was prohibited by the Dental Practice Act. Wilson
stopped offering teeth-whitening services upon receipt of a
cease and desist letter from the Dental Board. On April 30,
2013, Westphal and Wilson filed this action against the
Dental Board seeking a judgment declaring that the Alabama
Dental Practice Act violated various provisions of the
Alabama Constitution and also requesting a permanent
injunction forbidding enforcement of the Dental Practice Act
to the extent it forbade teeth whitening by anyone other than
a dentist. Following completion of discovery, the parties
filed cross-motions for a summary judgment on August 8, 2014.
In support of their respective motions for a summary
judgment, the parties submitted the testimony of Westphal and
Wilson as well as reports from their retained experts.
testified that he has operated Natural White LLC in North
Carolina since 2012 and that, if successful in the
litigation, he would offer the same services in Alabama that
he offers in his North Carolina business. He testified that
when customers come to his business they are given an
explanation of the products Natural White sells and of the
process of teeth whitening. Natural White's services
involve the use of a whitening-pen applicator manufactured by
BeamingWhite[TM]. The pen uses a 16% hydrogen-peroxide
Natural White uses a " BeamingWhite Teeth Whitening
Guide" to instruct its employees in the use of
BeamingWhite products. The guide warns that " 16%
hydrogen [peroxide] is a very strong gel and therefore is NOT
suitable for home use, where customers will use it without
your supervision and may hurt themselves." (Bold
typeface and capitalization in original.) The guide further
warns that teeth whitening should not be performed on
pregnant women or on people who have poor tooth enamel or
decalcification, who have periodontal disease, gingivitis, or
gums in poor condition, who wear braces, who recently had
oral surgery, who have decaying teeth, exposed roots, or open
cavities, or who have a history of allergies to peroxide
testified that customers are asked to review and to sign a
general customer-information form affirming that they do not
have any condition that would contraindicate whitening.
Westphal stated that he does not take a medical history or
ask his customers about any allergies they might have.
Customers are told that not all causes of tooth discoloration
will respond to peroxide-based whitening and that they should
whiten their teeth only if they have healthy teeth, but
Natural White employees never attempt to diagnose the
underlying cause of any tooth discoloration or to determine
whether a customer's teeth are actually healthy. Westphal
testified that, based on the manufacturer's
recommendation, Natural White does not offer teeth-whitening
services to minors under the age of 14 or to women who
indicate that they are pregnant.
to Westphal, after the customer has reviewed the information
form and consented to the whitening process, he or she sits
down in a reclining chair. A Natural White employee puts on
disposable gloves and opens a prepackaged whitening kit. Each
kit contains a single-use lip-and-cheek retractor and a 16%
hydrogen-peroxide teeth-whitening pen. The customer is
instructed on how to put the retractor in place. Natural
White employees tell each customer that gum sensitivity
sometimes occurs when whitening teeth and offer them the
option of self-applying a single-use Vitamin E stick to their
gums before applying the teeth-whitening gel.
the customer is ready to begin the whitening process, a
Natural White employee opens the disposable whitening pen.
Westphal testified that in his North Carolina business he
uses the whitening pen to apply the whitening gel directly to
the customer's teeth approximately 60-80% of the time;
the remainder of the time the customer applies it. He
testified, however, that he does not intend to apply the gel
to customers in Alabama. Rather, customers in Alabama will be
instructed to apply the whitening gel to their own teeth.
After the gel is applied, the customer is given a pair of
tinted glasses and a Natural White employee positions a
low-powered LED light in front of his or her mouth. The
employee then turns the light on and sets the timer for 15
the whitening session is complete, a Natural White employee
slides the light away, and the customer removes the
lip-and-cheek retractor. The customer is given a small cup of
water to rinse his or her mouth, and the cup, along with the
retractor, is discarded. The customer looks at the mirror to
check the results. If the customer chooses to further whiten
his or her teeth, Natural White offers up to two additional
15-minute sessions. Westphal testified that, after each
customer, a Natural White employee cleans the tinted glasses,
the LED light, and the reclining chair with an ammonia-based
the gloves worn by the Natural White employee are discarded
after each use.
previously operated a teeth-whitening business in Alabama.
Wilson began offering teeth-whitening services to customers
at her cosmetology salon. In 2006, Wilson sold her salon and
formed BEKS Inc., d/b/a BriteWhite Whitening Systems ("
BriteWhite" ), a company that sells peroxide-based
teeth-whitening products and equipment. The BriteWhite
whitening system is an LED-based teeth-whitening system that
BriteWhite designed and produces. The device consists of a
base housing its internal components and an extension that
plugs into the base and is fitted with a mouthpiece
containing small, integrated LED lights. To market BriteWhite
and its products, Wilson traveled to salons and spas to
perform teeth-whitening services and to demonstrate use of
performing teeth-whitening services, Wilson first had
customers review and sign a general information form. Wilson
never examined the customer's mouth to determine if there
was some medical reason not to perform the whitening
procedure. Nor did she ever attempt to diagnose the
underlying cause of any tooth discoloration or to determine
whether a customer's teeth were actually healthy. The
customer was instructed to sit in a reclining chair. Wilson
or her employee put on single-use disposable gloves and would
wrap a single-use plastic barrier sleeve over the mouthpiece
of the BriteWhite unit. The whitening gel used by BriteWhite
was a 35% carbamide-peroxide teeth-whitening gel, which
contained the equivalent of 12% hydrogen peroxide. Wilson
testified that she discovered that the most effective method
of applying the gel was to have the customer apply it
directly to his or her own teeth using a single-use
applicator brush and then to insert the mouthpiece. Once the
mouthpiece was inserted, the blue LED lights built into the
mouthpiece were turned on for a 20-minute cycle. After the
session was complete, the customer would remove the
mouthpiece and discard the used barrier sleeve. The customer
would then rinse his or her mouth with a small cup of water,
and the cup was also discarded. Wilson or her employee would
use a disinfecting cleaner to clean the equipment and the
reclining chair after each session.
support of their motion for summary judgment, Westphal and
Wilson submitted a report from their expert, Dr. Martin
Giniger, a licensed dentist with a Ph.D. in Biomedical
Science and extensive experience in the field of
peroxide-based teeth whitening. Giniger stated that
peroxide-based teeth whitening is generally regarded as safe
and effective and that any potential side effects are mild
and temporary. Giniger stated that about 50% of people
experience temporary sensitivity of the teeth or minor
soft-tissue irritation following teeth whitening. He stated
that that sensitivity is believed to be the result of
dehydration of the teeth and tissues caused by the bleaching
gels when held against the teeth but that those effects are
typically mild and invariably transient. He stated that there
are no reports that people who undergo non-dentist-provided
teeth-bleaching experience a greater or more severe incidence
of sensitivity than do those who undergo bleaching provided
by dentists or by self-application of over-the-counter
products. Furthermore, although Giniger noted that higher
concentrations of carbamide peroxide may cause soft-tissue
irritation, he stated that reported literature finds that all
soft-tissue irritation abates within days of teeth bleaching
and that no study has shown adverse long-term effects of
teeth whitening on oral soft tissue.
Giniger also noted that hydrogen peroxide and carbamide
peroxide have been found to result in minor reversible
enamel-surface changes. He states, however, that studies have
shown that such changes are " no different from those
that occur after drinking a glass of orange juice, and [that]
any decalcification is quickly reversed when teeth are
exposed to saliva." Giniger further stated that there
was little evidence of any possible systemic side effects
from the use of hydrogen peroxide or carbamide peroxide in
teeth whitening. According to Giniger, although studies have
shown adverse effects at repeated high exposures, no adverse
effects are likely from the small level of hydrogen peroxide
used in teeth whitening. Additionally, Giniger testified that
other ingredients used in teeth whitening --water, glycerine,
Carbopol, sodium hydroxide, sodium acid pyrophosphate, sodium
saccharin, flavorings -- are also considered safe even if
accidentally ingested. Giniger also stated that the LED light
systems used for teeth whitening are low-powered, comparable
to a consumer flashlight, and not harmful.
Giniger stated that the risks of non-dentist teeth whitening
are the same as those of unregulated teeth-whitening products
sold directly to consumers for home use. Certainly, he
testified, those risks are much less than the risks
associated with tongue piercing, which requires no oversight
by a licensed dentist.
Dental Board submitted expert testimony of Dr. Kenneth
Tilashalski, a licensed dentist and a professor at the
University of Alabama at Birmingham School of Dentistry.
Tilashalski stated that it is recognized in the dental
profession that certain preexisting conditions could render a
whitening procedure ineffective or even harmful to an
individual's oral health. He stated that many oral
conditions preclude the use of bleaching agents. He stated
that, in determining whether a teeth-whitening treatment is
appropriate for a consumer, the practitioner should consider
the consumer's tooth-decay history, tooth sensitivity,
oral mucosal disorders, existence of restorations and/or
prostheses, and any underlying reason(s) for tooth
discoloration. Tilashalski notes that non-dentist
practitioners lack the educational foundation in oral health
care, anatomy, and physiology to make an informed decision on
whether teeth whitening is appropriate for a particular
Tilashalski stated that teeth-whitening procedures present
the potential for sanitation and infection risks. Tilashalski
stated that, in any setting involving mucosal membranes, any
number of pathogens, microbes, viral particles, and/or
bacteria that are subject to contact, droplet, or airborne
transmission may be present. He contended that the lack of
formal health-care training by non-dentist teeth-whitening
practitioners may lead to poor practices regarding
sanitation, causing adverse consequences to both customers
further contended that the " specialized support and
advice" offered by non-dentist teeth-whitening
practitioners provides an illusion of professional expertise
and supervision without the benefits of a trained dentist.
Tilashalski opined that customers who visit non-dentist
teeth-whitening practitioners might be less likely to visit a
dentist because of a faulty belief that they are periodically
being seen by a professional who would notify them of any
oral problems requiring treatment.
also noted the variety of products and procedures used by
non-dentist practitioners in the teeth-whitening business.
Practitioners use a variety of chemical compounds of varying
strengths and composition. There are different methods for
applying the chemicals to the
teeth, and variations exist in the duration and frequency of
treatments. According to Tilashalski, the significant
variations among the products and procedures used in
non-dentist teeth whitening create uncertainty and risk that
a product may be used, or used in a way, that is harmful to
Tilashalski noted that numerous studies have demonstrated
adverse effects of bleaching compounds on dental
restorations, including increased surface roughness, marginal
breakdown, decreases in tooth-to-restoration-bonds strength,
and the release of metallic ions and possibly increased
exposure to mercury.
Dental Board also presented the testimony of Dr. Michael
Maniscalco, a dentist who has practiced in Birmingham since
1981. Maniscalco has performed peroxide-based teeth whitening
since 1983. He testified that he always conducts a
pre-treatment examination in order to confirm that a patient
does not have health problems or injuries that would make
teeth whitening inappropriate. He testified that he has
personally witnessed peroxide burns of the lips and gums and
cases of extreme sensitivity to the whitening agents.
undisputed that teeth-whitening services performed by
non-dentists are usually cheaper than teeth-whitening
services performed by dentists. Two members of the Board of
Dental Examiners, Northcutt and Willis, both charge as much
as $600 for teeth-whitening services. Maniscalco charges
between $450 and $650 for in-office teeth whitening.
Westphal, on the other hand, charges between $79 and $129.
The Board of Dental Examiners has never received a complaint
that any person was harmed by any teeth-whitening procedure
performed in Alabama.
Jefferson Circuit Court conducted a hearing on the
cross-motions for a summary judgment on September 4, 2014. On
October 3, 2014, the circuit court entered an order granting
the Dental Board's motion for a summary judgment and
denying Westphal and Wilson's motion for a summary
judgment and entered a judgment in favor of the Dental Board
and against Westphal and Wilson on all claims. The circuit
court concluded that, given the undisputed facts, the
restriction in the Dental Practice Act providing that teeth
whitening can be performed only by dentists does not violate
the Alabama Constitution. Westphal and Wilson appealed.
Standard of Review
The standard of review applicable to a summary judgment is
the same as the standard for granting the motion ...."
McClendon v. Mountain Top Indoor Flea Market, Inc.,
601 So.2d 957, 958 (Ala. 1992). A summary judgment is proper
when there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law.
Rule 56, Ala. R. Civ. P. Westphal and Wilson do not argue
that there is any genuine issue of material fact that
precludes a summary judgment in this case; they argue that,
under the undisputed facts, the Dental Board is not entitled
to a judgment as a matter of law and that, therefore, the
summary judgment is improper.
case concerns a constitutional challenge to Alabama's
statutory prohibition of teeth-whitening services as
performed by non-dentists. " This Court's review of
constitutional challenges to legislative enactments is de
novo." Northington v. Alabama Dep't of
Conservation & Natural Res., 33 So.3d 560, 564 (Ala.
" '[A]cts of the legislature are presumed
constitutional. State v. Alabama Mun. Ins. Corp.,
730 So.2d 107, 110 (Ala. 1998). See also Dobbs v. Shelby
County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428
(Ala. 1999) (" In reviewing the constitutionality of a
legislative act, this Court will sustain the act '"
unless it is clear beyond reasonable doubt that it is
violative of the fundamental law." '" White
v. Reynolds Metals Co., 558 So.2d 373, 383 (Ala. 1989)
(quoting Alabama State Fed'n of Labor v.
McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944))). We
approach the question of the constitutionality of a
legislative act " '" with every presumption and
intendment in favor of its validity, and seek to sustain
rather than strike down the enactment of a coordinate branch
of government." '" Monroe v. Harco,
Inc., 762 So.2d 828, 831 (Ala. 2000) (quoting Moore
v. Mobile Infirmary Ass'n, 592 So.2d 156, 159 (Ala.
1991), quoting in turn McAdory, 246 Ala. at 9, 18
So.2d at 815).
" 'Moreover, in order to overcome the presumption of
constitutionality, ... the party asserting the
unconstitutionality of the Act ... bears the burden " to
show that [the Act] is not constitutional." Board of
Trustees of Employees' Retirement Sys. of Montgomery v.
Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973).
See also Thorn v. Jefferson County, 375 So.2d 780,
787 (Ala. 1979) (" It is the law, of course, that a
party attacking a statute has the burden of overcoming the
presumption of constitutionality...." ).'
" State ex rel. King v. Morton, 955 So.2d 1012,
1017 (Ala. 2006)."
State v. Lupo, 984 So.2d 395, 397-98 (Ala. 2007).
White Smile, decided before the amendment to the Dental
Practice Act that is the subject of this appeal, this Court
was presented with the question whether the Dental Practice
Act prohibited a teeth-whitening business similar to those
sought to be operated by Westphal and Wilson. We summarized
the issue as follows:
" Article 34, Chapter 9, Ala. Code 1975, regulates the
practice of dentistry in Alabama. Section 34-9-3 requires the
licensing of dentists, and § 34-9-43 grants the Board
the authority to regulate the professional activities of
dentists in Alabama. Section 34-9-6 defines the practice of
" 'Any person shall be deemed to be practicing
dentistry who performs, or attempts or professes to perform,
any dental operation or dental service of any kind,
gratuitously or for a salary, fee, money or other
remuneration paid, or to be paid, directly or indirectly, to
himself, or to any person on his behalf, or to any agency
which is a proprietor of a place where dental operations or
dental services are performed....'
" (Emphasis added.) Section 34-9-6 then lists 10[, now
12,] other activities that constitute the practice of
dentistry under Chapter 9. The ultimate issue in this action
is whether the sale of LightWhite with in-store application
... is the practice of dentistry within the meaning of §
36 So.3d at 13. Under similar, but not identical, facts to
those currently before us, we concluded in White Smile that
the teeth-whitening service at issue there constituted the
" practice of dentistry" as that term was then
defined by § 34-9-6. In 2011,
the legislature amended § 34-9-6, removing any further
doubt as to whether teeth-whitening services were included
within the practice of dentistry. Section 34-9-6 now reads,
" Any person shall be deemed to be practicing dentistry
who does any of the following:
" (12) Professes to the public by any method to bleach
human teeth, performs bleaching of the human teeth alone or
within his or her business, or instructs the public within
his or her business, or through any agent or employee of his
or her business, in the use of any tooth bleaching
unlike the question before the Court in White Smile, the
question before us is not whether non-dentist teeth whitening
falls within the practice of dentistry --it clearly does
under § 34-9-6(12). Rather, the question is whether, by
extending dentistry's occupational-licensing regime to
include teeth-whitening services such as those sought to be
offered by Westphal and Wilson, the legislature has violated
Westphal's and Wilson's due-process rights under the
and Wilson contend that the professional-licensing
requirement that prohibits the operation of their
teeth-whitening businesses violates the due-process
guarantees of Art. I, § § 6 and 13, Alabama
Constitution of 1901. Specifically, they contend that the
statute that prohibits non-dentists from performing
teeth-whitening services is an unreasonable and arbitrary
exercise of the police power.
Court has long held that " [t]he power of a reasonable
regulation of the professions or occupations where the
services [are] to be rendered to the public is justified
under the police power of government." State ex rel.
Bond v. State Bd. of Med Exam'rs, 209 Ala. 9, 10, 95
So. 295, 296 (1923). Nevertheless, " [i]n the exercise
of this power, the prohibition or test contained in the
statute, ordinance, or rule should be enacted, ordained, or
adopted with reference to the object to be attained and as
not unduly to interfere with private business, or impose
unusual or unnecessary restrictions upon lawful occupations
or professions." Id. This Court has held that
the right to due process under the Alabama Constitution is
violated when a statute, regulation, or ordinance imposes
unnecessary and unreasonable restraints upon the pursuit of
useful activities. In addressing whether a statute,
regulation, or ordinance is unreasonable, this Court applies
the doctrine of overbreadth.
" 'The doctrine of overbreadth recognizes that a
state legislature may have a legitimate and substantial
regulating particular behavior, but " that purpose
cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly
achieved." Shelton v. Tucker, 364 U.S. 479,
488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) [quoting
Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19
L.Ed.2d 444 (1967)]. Historically, the overbreadth doctrine
has been used by the federal courts to prevent a chilling
effect on First Amendment freedoms. ... However, the
overbreadth doctrine under the Alabama Constitution has been
applied in due process cases not involving First Amendment
freedoms. See Ross Neely Express, Inc. v. Alabama
Department of Environmental Management, 437 So.2d 82
" [Friday v. Ethanol Corp.,] 539 So.2d  at
215 [(Ala. 1988)]. In Ross Neely Express, Inc. v. Alabama
Department of Environmental Management, 437 So.2d 82
(Ala. 1983), this Court stated:
" 'Statutes and regulations are void for overbreadth
if their object is achieved by means which sweep
unnecessarily broadly and thereby invade the area of
protected freedoms. ...'
" 437 So.2d at 85.
" 'This Court has also recognized that the right to
due process under the Alabama Constitution is violated when a
statute, regulation, or ordinance imposes restrictions that
are unnecessary and unreasonable upon the pursuit of useful
activities in that they do not bear some substantial relation
to the public health, safety, or morals, or to the general
welfare, the public convenience, or to the general
" Friday v. Ethanol Corp., 539 So.2d at 216
(citing Ross Neely Express, Inc., 437 So.2d at 84-86;
City of Russellville v. Vulcan Materials Co., 382
So.2d 525, 527-28 (Ala. 1980); Leary v. Adams, 226
Ala. 472, 474, 147 So. 391 (1933); Baldwin County Bd. of
Health v. Baldwin County Elec. Membership Corp., 355
So.2d 708 (Ala. 1978)).
" '" The concept of the public welfare is broad
and inclusive. The values it represents are spiritual as well
as physical, aesthetic as well as monetary." '
Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 80 L.Ed.2d
772 (1984) (quoting Berman v. Parker, 348 U.S. 26,
33, 75 S.Ct. 98, 99 L.Ed. 27 (1954)). If an ordinance is
'" fairly debatable, a court will not substitute its
judgment for that of the municipal government body acting in
a legislative capacity." ' City of Russellville
v. Vulcan Materials Co., 382 So.2d at 526 (quoting
City of Birmingham v. Norris, 374 So.2d 854, 856
(Ala. 1979)). ..."
Scott & Scott, Inc. v. City of Mountain Brook, 844
So.2d 577, 594-95 (Ala. 2002). Further, this Court has
" 'The validity of a police power regulation ...
primarily depends on whether under all the existing
circumstances, the regulation is reasonable, and whether it
is really designed to accomplish a purpose properly falling
within the scope of the police power. Crabtree v. City of
Birmingham, 292 Ala. 684, 299 So.2d 282 (1974)....
Otherwise expressed, the police power may not be employed to
prevent evils of a remote or highly problematical character.
Nor may its exercise be justified when the restraint imposed
upon the exercise of a private right is disproportionate to
the amount of evil that will be corrected. Bolin v.
State, 266 Ala. 256, 96 So.2d 582, conformed to in 39
Ala.App. 161, 96 So.2d 592 (1957).'
" Statutes and regulations are void for overbreadth if
their object is achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms.
See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391,
19 L.Ed.2d 444 (1967); Keyishian v. Board of
Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629
Ross Neely Express, Inc. v. Alabama Dep't of Envtl.
Mgmt., 437 So.2d 82, 84-85 (Ala. 1983) (quoting City
of Russellville v. Vulcan Materials Co., 382 So.2d 525,
527 (Ala. 1980)).
State v. Lupo, supra, this Court held that the
Alabama Interior Design Consumer Protection Act, which
required professional licensing of all persons performing the
" practice of interior design," was
unconstitutional. The legislative act at issue in Lupo
broadly defined the practice of interior design to include
such things as selecting paint colors and pillows for a sofa.
Applying the doctrine of overbreadth to the facts of that
case, we concluded that " the Act '" impose[d]
restrictions that [were] unnecessary and unreasonable upon
the pursuit of useful activities" ' and that those
restrictions '" [did] not bear some substantial
relation to the public health, safety, or morals, or to the
general welfare, the public convenience, or to the general
prosperity." '" 984 So.2d at 406 (quoting Scott
& Scott, 844 So.2d at 594, quoting in turn Friday v.
Ethanol Corp., 539 So.2d 208, 216 (Ala. 1988)).
Consequently, we held that the Interior Design Consumer
Protection Act violated the due-process protections of the
case, there can be no dispute that the practice of dentistry,
generally speaking, relates to the public health and is,
therefore, a legitimate subject of the State's police
power. Moreover, teeth whitening is
unquestionably a dental treatment. In White Smile we held
that teeth-whitening services similar to those at issue here
were " dental services." 36 So.3d at 14 (" The
commonly accepted definition of 'dental service' is
... a helpful act or useful labor of or relating to the
teeth." ). Indeed, the record shows that peroxide-based
teeth bleaching was initially developed and performed by
dentists. Teeth-whitening services, then, fall naturally
within the sphere of dentistry. The legislature,
moreover, has expressly provided that teeth whitening falls
within the " practice of dentistry," and a
presumption of constitutionality attaches to this legislative
pronouncement. See, e.g., State ex rel. King v.
Morton, 955 So.2d 1012, 1017 (Ala. 2006).
light of this presumption, we cannot say that the inclusion
of teeth-whitening services, like those offered by Westphal
and Wilson, within the definition of the practice of
dentistry in the Dental Practice Act is not reasonably
related to public health, safety, or general welfare.
Teeth whitening is a form of dental treatment that requires
the application of a chemical bleaching agent directly to the
customer's teeth. The evidence in the record indicates
that the procedure is relatively safe but that it is not
without potential adverse effects. There is evidence
indicating that some people have suffered peroxide burns of
the lips and gums as a result of exposure to bleaching
compounds; others experience, albeit temporarily, mild to
moderate tooth sensitivity or irritation of the soft tissue
in the mouth.
materials before us indicate that teeth whitening is
inappropriate for people with particular dental conditions,
conditions a layman may not be able to recognize or diagnose.
Moreover, teeth-whitening compounds may damage dental
restorations or prostheses; alternatively, they may have no
effect on restorations, resulting in color mismatching of
teeth. Teeth whitening may not be effective as to some types
of discoloration. Furthermore, tooth discoloration may be
caused by an underlying condition or disease, which a
nondentist likely would not detect. In such cases, teeth
whitening might serve to mask an underlying condition and
delay necessary treatment. Therefore, it is not unreasonable
to conclude that pretreatment examination and subsequent
assessment of each teeth-whitening consumer's situation
by a professional dentist could reduce the risk of the
adverse effects of teeth whitening, could help consumers
avoid ineffective or unnecessary treatments, and could
diagnose and treat underlying conditions. Finally,
teeth-whitening services involve contact with the mucosal
membranes of the mouth, which raises concerns of sanitation
and infection -- areas in which dentists receive specialized
education and training.
concerns and others do not appear trivial. Given the
deferential standard of review in a statutory challenge, we
cannot say that provision that includes teeth-whitening
services within the scope of the practice of dentistry, thus
limiting the performance of those services to licensed
dentists, violates the due-process protections of the Alabama
we note that Westphal and Wilson also raise a number of
public-policy arguments in support of their contention that
non-dentists should be permitted to offer teeth-whitening
services. For example, they argue that limiting
teeth-whitening services to licensed dentists, who typically
charge more than non-dentists for the services, increases the
cost of teeth whitening for consumers. They argue that the
primary effect of the prohibition on non-dentist teeth
whitening is economic protectionism in favor of dentists.
They also note that other activities unregulated by the Board
of Dental Examiners, like oral piercing, pose a vastly
greater threat to public health and safety than does teeth
whitening. Whatever the merits of these arguments,
" [i]n passing on the validity of a statute it must be
remembered that the legislature, except insofar as
specifically limited by the state and federal constitutions,
is all-powerful in dealing with matters of legislation; ...
[and] that all questions of propriety, wisdom, necessity,
utility and expediency in the enactment of laws are
exclusively for the legislature, and are matters with which
the courts have no concern."
Surtees v. VFJ Ventures, Inc., 8 So.3d 950, 983
(Ala.Civ.App. 2008)(quoting Jansen v. State ex rel.
Downing, 273 Ala. 166, 168, 137 So.2d 47, 48 (1962)).
foregoing reasons, we hold that the requirement in the Dental
that teeth-whitening services be performed by licensed
dentists does not violate the due-process protections of the
Alabama Constitution of 1901. Accordingly, the judgment of
the circuit court is affirmed.
C.J., and Stuart, Bolin, Murdock, Wise, and Bryan, JJ.,
and Shaw, JJ., concur in the result.
The principle quoted from Northington
expresses the general principle that this Court considers de
novo pure questions of law and the application of law to
settled facts. Smith's Sports Cycles, Inc. v.
American Suzuki Motor Corp., 82 So.3d 682, 684 (Ala.
Westphal and Wilson also assert that the
prohibition of non-dentist teeth-whitening services violates
the equal-protection guarantees they contend are contained in
§ § 1, 6, and 22, Alabama Constitution of 1901. As
to the issue whether the Dental Practice Act violates
§ § 1, 6, and 22, either separately or
collectively, it was incumbent on Westphal and Wilson to make
specific arguments regarding how the Act violated those
sections. Westphal and Wilson, however, make only one
specific reference to § § 1, 6, and 22 in the
introductory portion of their brief and make no specific
arguments concerning the purported equal protection conferred
by these provisions or how it has been violated -- failing
even to quote any portion of the constitutional provisions.
Moreover, their arguments appear to rely chiefly on the
overbreadth doctrine, which we have held falls within the
dueprocess protections of the Alabama Constitution. Given the
lack of contextual analysis to support their " equal
protection" argument, we decline to address it. See
White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d
1042, 1058 (Ala. 2008). Westphal and Wilson do not assert any
violation of the Equal Protection Clause of the United States
Section 34-9-2, Ala. Code 1975, provides,
" The Legislature hereby declares that the
practice of dentistry and the practice of dental hygiene
affect the public health, safety, and welfare and
should be subject to regulation. It is further declared to
be a matter of public interest and concern that the dental
profession merit and receive the confidence of the public
and that only qualified dentists be permitted to practice
dentistry and only qualified dental hygienists be permitted
to practice dental hygiene in the State of Alabama. All
provisions of this chapter relating to the practice of
dentistry and dental hygiene shall be liberally construed
to carry out these objects and purposes."
We express reluctance to opening the door
for judicial determinations as to what particular procedures
or services within an accepted field of professional practice
might be safely carved out for performance by laymen.