Pearly White Protection

Teeth whitening may seem like a natural addition to your service menu,
but be forewarned: Many dentists are out to prevent it.

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Consider the following scenario: Two young children, Bobby and Susie, are watching cartoons one Saturday morning and quietly building with Legos in front of the TV set.

“Bobby! Stop taking my Legos!” Susie suddenly shouts, to which Bobby replies, “No, Susie, I want all your Legos. And I’m going to tell Mommy not to let you play with the Legos anymore. I’m even going to tell her to make a rule that you’ll be punished if you play with any Legos!”

Wow! Sounds like this Bobby kid deserves a little face time in the corner. What makes enfant terrible think he can have all the blocks to himself? And what makes him believe that he can convince Mommy to make a rule stipulating that Susie can’t ever play with the Legos?

Now consider that Susie represents the spa industry, Bobby is the dental lobby, the Legos are teeth whitening equipment and Mommy is the state legislature. Here’s what would happen: Bobby would walk away with all of the blocks, Susie would get none and Mommy would tell Susie that she’d better not play with the Legos anymore or she’ll get a spanking. That’s because Bobby, i.e. the American Dental Association (ADA), is pushing legislation to prohibit spa professionals and any other non-dentists from providing teeth whitening procedures. And in more than a dozen states, the ADA has already proved successful.

Read on to learn more about this ongoing crusade. We’ll examine in depth one state’s prohibitive legislation to discuss scenarios you may encounter implementing teeth whitening services, and review ways in which to protect yourself.

A Tale as Old as Wisdom Teeth

Here again is another example of a professional association (read: group of lobbyists) acting territorial and attempting to limit spa professionals from performing specialized procedures. From the widespread effort several years back to prevent cosmetologists and estheticians from applying permanent makeup and providing lasting hair removal services, to dermatologists’ recent drive to keep spas from offering microdermabrasion and chemical peels, we know that this latest turf battle of teeth whitening doesn’t exist in a vacuum.

And, judging by some of the bizarre initiatives we’ve seen to limit spa professionals’ areas of practice, the battle knows no bounds. Remember when Mississippi therapists were prohibited from performing craniosacral massage, because it was similar in nature to a suspect procedure described in ancient medical literature? Spa professionals weren’t totally banned from performing scalp massage, however, as long as they applied less than five grams of pressure—equivalent to the weight of several paperclips. That little piece of legislative brilliance was fiercely backed by local chiropractors.

Now, the ADA is actively encouraging local, “constituent dental societies” to lobby to prohibit teeth whitening procedures from being administered by non-dentists such as estheticians. It has already been successful in several regions. The argument: If whitening solutions are applied incorrectly, the possible resulting side effects include temporary tooth sensitivity, gum irritation and, in rare cases, irreversible damage to teeth and gums. In many states, the ADA is also attempting to limit the whitening techniques that clients can employ at home.

Legislative Cavities

State by state, lobbying and lawmaking produce inconsistent results. In California and Ohio, it’s considered outside the scope of practice for anyone other than a licensed dentist to put anything into a person’s mouth, but in some cases clients can legally place the items in there themselves. In Florida, a massage therapist may perform dental services, in addition to colonic irrigation and a host of other apparently invasive services.

Perhaps the most outrageous example of inconsistent “body license” involves the New Jersey State Board of Cosmetology’s battle to prohibit estheticians from performing Brazilian waxing because “it gets too close to mucous membranes.” At this rate, we’ll soon see the human anatomy divvied up into jurisdictional regions, much like the chart of a cow that graces butchers’ walls to showcase various cuts of meat.

For the sake of consistency, let’s take a look at one governmental body that has recently limited teeth whitening procedures: Illinois. The state takes the “scope of practice approach.” According to the Illinois Dental Practice Act, “a person practices dentistry if he or she places his or her hands in the mouth of any person for the purpose of applying teeth whitening materials.”

It then goes on to assert that, “A person does not practice dentistry when he or she discloses to the consumer that he or she is not licensed as a dentist under this Act 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.”

By the time an esthetician spits all of that out, I’m afraid the client will soon conclude she may as well perform the service herself, at home. And this jargon doesn’t cut spa professionals any slack, as it serves as a legislative nod to the reality that anyone can simply buy teeth whitening kits over the counter.

While not a death penalty offense, practicing dentistry without a license can have heavy consequences. In one recent Illinois case, a defendant was convicted of three counts of unlawful practice of dentistry, put under 12 months’ court supervision, fined $250 and ordered to pay $390 in restitution. That doesn’t even take legal fees into account.

There’s plenty of similar legislation elsewhere. Be sure to check your local government’s website before purchasing expensive teeth whitening equipment. You’ll also want to know how far your professional liability insurance will go to back you up.

Root of the Problem

At this point, you may be wondering why dental lobbyists haven’t railed against over-the-counter teeth whiteners. The push for regulation is underway on that front as well. The ADA’s website reveals that it “supports educating the public on the importance of consulting a licensed dentist before undergoing whitening/bleaching services, and urges the Association to petition the Food and Drug Administration to properly classify tooth whitening and bleaching agents.”

Lobbyists’ push for limitations on the procedures that spa professionals can perform are so numerous and formulaic that I’ve been able to construct what appears to be a tried-and-true recipe on which medical and dental associations rely:
1. Donate extensively to the campaigns of key legislators.
2. Demonstrate to association members that a procedure performed by spa professionals either is or could be a profit center for a medical or dental professional.
3. Discover an instance—often rare—in which the performance of said procedure was conducted by a spa professional and resulted in severe harm to an individual.
4. Harangue said legislator to outlaw spas’ right to perform the procedure, with the support of cooperative medical and dental professionals.

Will Bobby convince Mommy to force Susie to stop playing with her Legos after all? That all depends on how much Bobby pays Mommy—in other words, how much it’s worth to Bobby to be the sole manipulator of Legos. Of course, it will also rest on whether Bobby can find a situation in which Susie has injured someone with the Legos. If these criteria are met, history shows that Susie will be censured and banned from play. •

DAYSPA advisory board member Michael L. Antoline, J.D., is a legal affairs writer and attorney in Champaign, Illinois. Information in this column is general. Seek legal counsel for specific cases.