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Westphal v. Northcutt

Supreme Court of Alabama

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

         Released for Publication April 28, 2016.

          Appeal from Jefferson Circuit Court. (CV-13-901678). Elisabeth A. French, Trial Judge.

         For 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.

         For Appellees: Luther M. Dorr, Jr., of Maynard, Cooper & Gale, P.C., Birmingham; and Susan F. Wilhelm, deputy atty. gen., Alabama Board of Dental Examiners.

         MAIN, Justice. Moore, C.J., and Stuart, Bolin, Murdock, Wise, and Bryan, JJ., concur. Parker and Shaw, JJ., concur in the result.


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          MAIN, Justice.

         Keith 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.

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          I. Facts and Procedural History

         Teeth 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 effects.

         Although 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.

         Westphal 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.

         Westphal 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 solution.

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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 products.

         Westphal 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.

         According 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.

         When 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 minutes.

         Once 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 cleaner. Further,

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the gloves worn by the Natural White employee are discarded after each use.

         Wilson 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 the system.

         In 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.

         In 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.

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          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.

         Finally, 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.

         The 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 ...

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