Westphal v. Northcutt
| Decision Date | 05 June 2015 |
| Docket Number | 1140153. |
| Citation | 187 So.3d 684 |
| Parties | Keith WESTPHAL and Joyce Osborn Wilson. v. 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. |
| Court | Alabama Supreme Court |
Paul M. Sherman, Institute for Justice, Arlington, Virginia; Arif Panju, Institute for Justice, Austin, Texas; and Ed R. Haden and Charles B. Paterson of Balch & Bingham LLP, Birmingham, for appellants.
Luther M. Dorr, Jr., of Maynard, Cooper & Gale, P.C., Birmingham; and Susan F. Wilhelm, deputy atty. gen., Alabama Board of Dental Examiners, for appellees.
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.
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 non-dentists 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.
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, 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...
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