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Monday, May 27, 2013

Law - "A Clash Over Who Is Allowed to Give You a Brighter Smile"

Recall the story by Lesley Weidenbener, quoted in this May 13th post, headed "Pence makes good on promise to oppose new regulations." And the May 9th story by Mary Beth Schneider, headed " "Gov. Mike Pence vetoes professional licensing bills," including:

“Lower taxes and less regulation, including fewer licensing requirements, will mean more jobs for Hoosiers,” Pence said in a statement. “I am vetoing these licensing bills because I believe they create barriers to the marketplace for Hoosiers and restrict competition.” * * *

And he appeared to chide the legislature for not passing one of his agenda items: Senate Bill 520, which would have created the “ERASER Committee” to review occupational licensing and establish a procedure to automatically sunset unnecessary licenses, permits and certifications.

“I will continue to work with members of the General Assembly as we pursue efforts to reduce red tape and reform licensing in Indiana, because less regulation will mean more jobs for Hoosiers,” he said.

This weekend the NY Times had this long story by Campbell Robertson. Some quotes:
GUNTERSVILLE, Ala. — In the middle of the enduring conflict between liberty and public welfare stands Joyce Osborn Wilson and her teeth-whitening business.

After 26 years of running The Hairport, Ms. Wilson, who now lives in this pretty lakeside town in northern Alabama, invented a whitening system called BriteWhite and began selling it to other salons and spas. It was all smiles for a year or so.

Then in 2006, she received a letter from a lawyer representing the state dental board. She was practicing dentistry without a license, the letter read, and must immediately “cease and desist” selling her products in Alabama.

Last month, Ms. Wilson and another owner of a teeth-whitening business sued in state court, arguing that a law declaring teeth whitening the exclusive province of dental professionals is unconstitutional.

Though Ms. Wilson did not know it when her trouble started, this dispute is one of many taking place all over the country between nondentist teeth whiteners and state dental boards. This issue is itself part a much broader debate over the proper limits of occupational licensing and the amount of leeway that professional boards should be given to set up barriers of entry.

From later in the long story:
Teeth whitening began to flourish in the 1990s, with dentists using forms of peroxide to essentially bleach the teeth (as opposed to removing stains, which is part of routine cleaning). The service generally costs around $300 or more, according to court documents; by 2006, a survey by the American Academy of Cosmetic Dentists found that dental practices were making an average of $25,000 a year from teeth whitening.

Later, whitening strips or kits — which often consist of peroxide gel, an application tray and in some cases a little LED light that activates the gel — began appearing online and in pharmacies, where they can be bought over the counter like cosmetics.

Teeth whitening also began to be offered as a service in salons and spas and at mall kiosks. There, employees provide the devices and explain how to use them, but, such business owners emphasize, nobody puts hands or fingers into anyone else’s mouth. The services at salons and kiosks generally cost around $100. Altogether, teeth whitening has become a multibillion-dollar industry.

Starting in 2005, state dental boards began adopting polices and pushing for legislation that would make teeth whitening illegal for anyone to perform but dentists or dental hygienists. According to the Institute for Justice, a law firm that is taking up Ms. Wilson’s suit, at least 14 states have, by policy or statute, defined teeth-whitening services as the practice of dentistry.

The Institute for Justice has long been involved in campaigns against what it regards as overzealous licensing requirements, arguing that in areas like interior design or hair braiding, they are simply anticompetition measures. What sets the teeth-whitening debate apart, said Paul M. Sherman, an attorney at the institute, is that the same products prohibited for use in salons in Alabama and several other states can be bought over the counter in those states with no trouble at all.

“The equal protection argument is particularly compelling because these are the same products that people buy and use at home every day,” he said.

The NYT includes a link to the worth-reading Alabama lawsuit (Alabama, BTW, has electronic filing).

The Institute for Justice has a 34-page white paper titled "White Out: How Dental Industry Insiders Thwart Competition from Teeth-Whitening Entrepreneurs." According to a Table on p. 7 of the document [p. 9 of the PDF], Indiana does not yet have a law or policy regarding to teeth whitening.

But is one in the works? Take a look at HEA 590, about "dental matters." It ends with this provision:

SECTION 17. [EFFECTIVE JULY 1, 2013] (a) During the 2013 legislative interim, the health finance commission established by IC 2-5-23-3 shall study issues concerning the delivery of dental practices by a person other than an individual licensed under IC 25-14 and current options and procedures in Indiana and other states concerning consumer protections for dental care services.

Posted by Marcia Oddi on May 27, 2013 03:30 PM
Posted to General Law Related