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Akron Univ. School of Law

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Wednesday, March 5, 2014

Guest Blogger Associate Professor Ann Marie Marciarille: Teeth-Whitening at the Supreme Court

MarciarilleWell, that is how the Wall Street Journal described the March 3, 2014 grant of certiorari in North Carolina Board of Dental Examiners vs. Federal Trade Commission, anyway.  And it is a case about teeth-whitening services in North Carolina, in particular, but it is also a case about whether the North Carolina Board of Dental Examiners violated federal antitrust law by banning non-dentists from offering teeth-whitening services in the state.

The question the case raises is one that haunts all health care provider dominated medical boards. Poised at the intersection of our long tradition of state deference to medical provider self-regulation and the realities of increasing competition, in the dental arena, for lesser credentialed or non-credentialed providers of cosmetic dental services, this case is one to watch.

Teeth-whitening products and services have a long history. Though modern bleach based products are not without their controversy they are also big business. Do-it-yourself teeth-whitening, launched by Crest White Strips at the turn of the century, has grown into an industry that still contains a strong do-it-yourself component as well as a dental office-based component as well as a freestanding cosmetic teeth whitening center component. You might say this case is at the intersection of all three of these.

Traditionally, each state’s statutory licensing system defines dental services for itself. You may not be surprised to learn that teeth whitening, bleaching, and stain removal are particularly called out as dental services in some states while others remain silent. In what one author calls “license creep” the state by state addition of teeth whitening services to the medical dental portfolio has been a marvel to behold. You may also not be surprised to learn that freestanding cosmetic teeth whitening centers in some jurisdictions are fighting for their livelihood.

It is estimated that 85 million Americans lack dental insurance. Most dental insurance plans do not extend coverage to cosmetic teeth-whitening, but lack of dental insurance across a wide swath of American society has trained us to be astute shoppers for dental services of all kinds. No wonder, then, that people of all demographic profiles are interested in obtaining dental services (cosmetic and dental alike) in a low price venue.

There are lessons to be learned here on price sensitivity in other aspects of health insurance but knowing this about dental services (cosmetic and medical alike) will help you to understand how cosmetic dental services may be the cash cow that keeps some dental clinics afloat.  Not unlike the dearth of dermatologists available for speedy removal of a suspicious mole as compared to the number available to offer “med-spa” cosmetic services, teeth-whitening may be the tail wagging the proverbial dog in dental practice management.

What can we anticipate from the Supreme Court? First, it is time for some badly needed clarification on the application of the California Liquor Dealers v. Midcal Aluminum test for state action immunity as applied to health care provider governed licensing entities. Second, look for some interesting language on the nature of health care provider self-regulation. Finally, know that this is not the only example of health care “license creep” at hand. Whichever way it breaks, this case will have resonance.

-Guest Blogger Associate Professor Ann Marie Marciarille

http://lawprofessors.typepad.com/healthlawprof_blog/2014/03/guest-blogger-associate-professor-ann-marie-marciarille-.html

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