Supreme Court Hears Arguments In Teeth Whitening Case

[MachineGhost]

The U.S. Supreme Court heard arguments Tuesday in a case with potential repercussions for thousands of state licensing boards. The subject was teeth whitening. Yes, you read that right. Teeth whitening. Specifically, whether a state regulatory board composed mainly of private dentists violated the nation's antitrust laws when it barred nondentists from offering teeth-whitening services at a lower price.

http://www.npr.org/2014/10/14/356177201 ... ening-case

[MachineGhost]

This kind of economic protectionism is far too rampant.  I hope the SCOTUS sets a precedent.

[MachineGhost]

Really? Do you want a technician with minimal training injecting botox or using a laser on you? Teeth whitening at the in-office level can be hazardous if not done properly and IMHO should not be done by $9 $13/hour high school dropouts. But then again, I am a dentist. 

Yeah, maybe it's not the best clear-cut example to use for a case, but since when does steak matter?  i.e. Ferguson.  What bothers me is the SCOTUS justices seem to completely ignore the question of public safety in their questioning because that is the excuse used by all of these economic protectionist boards to automatically shut down all debate.  There's a huge difference between brain surgery and teeth whitening!  The line for licensing should be drawn where someone can potentially kill or maim someone else; tort liability can take care of the rest.  Maybe I should run for Supreme Court.

[MachineGhost]

You must be joking. The only thing worse than gov't meddling is all the law suits. What we need in this country is tort reform.

I'm not joking.  How do you expect self-responsibility to work if no one can sue anyone for death or damages caused by career incompetence, bad products, etc.?  You might as well just put a chain around your neck and live in Corporate Fuedalism.  Extremism of any kind is bad, including ambulance chasing.  I don't want to go back to the Old West.

[Mark Leavy]

This kind of economic protectionism is far too rampant.  I hope the SCOTUS sets a precedent.

Really? Do you want a technician with minimal training injecting botox or using a laser on you? Teeth whitening at the in-office level can be hazardous if not done properly and IMHO should not be done by $9 $13/hour high school dropouts. But then again, I am a dentist. 

Yes.  Really.
Self organizing industries are happening.  Government Legislation is too slow to keep up with innovation.  You see industries like AirBnB and Uber bypassing stolid regulatory bodies and innovating in ways that make the world better for everyone.

It will also happen in medicine, and cosmetics will lead the way.

Some folks will be horribly disfigured as the industry learns to regulate itself.  But it will regulate itself, and it will do it better than can be done using the current graft prone regulatory bodies.  Best to get on with it.

[Mountaineer]

You must be joking. The only thing worse than gov't meddling is all the law suits. What we need in this country is tort reform.

I'm not joking.  How do you expect self-responsibility to work if no one can sue anyone for death or damages caused by career incompetence, bad products, etc.?  You might as well just put a chain around your neck and live in Corporate Fuedalism.  Extremism of any kind is bad, including ambulance chasing.  I don't want to go back to the Old West.

The "old" Old West doesn't sound so bad.  The late 19th century old west - different story.  Sounds like we are living in a version of that more recent old west today (jump to the conclusions at the end of the article).

http://www.independent.org/publications ... .asp?a=803

... Mountaineer

[dragoncar]

Really? Do you want a technician with minimal training injecting botox or using a laser on you? Teeth whitening at the in-office level can be hazardous if not done properly and IMHO should not be done by $9 $13/hour high school dropouts. But then again, I am a dentist. 

Yes.  Really.
Self organizing industries are happening.  Government Legislation is too slow to keep up with innovation.  You see industries like AirBnB and Uber bypassing stolid regulatory bodies and innovating in ways that make the world better for everyone.

It will also happen in medicine, and cosmetics will lead the way.

Some folks will be horribly disfigured as the industry learns to regulate itself.  But it will regulate itself, and it will do it better than can be done using the current graft prone regulatory bodies.  Best to get on with it.

Well I agreed with everything you started to say, and then your argument fell flat. I hope you or I are not one of the guinea pigs whose procedure ends up going south.

Don't worry, if you are injured simply refuse to buy any more of their services.  Free market in action!

[MachineGhost]

The "old" Old West doesn't sound so bad.  The late 19th century old west - different story.  Sounds like we are living in a version of that more recent old west today (jump to the conclusions at the end of the article).

I'm not talking about the violence.  I'm talking about the naked greed, exploitation and virtual immunity of the Fat Cat Bankers, Shysters and Corporate Trusts against the "little people".  You effectively had no legal recourse other than your gun and becoming an outlaw.  That's uncivilized.

[WiseOne]

Which fat cats are you referring to here?  Last I checked, dentists earn decent salaries but can hardly be considered uber-powerful and wealthy.
?
Pugchief, what are the potential complications of teeth whitening?  I rather agree that anything that involves significant medical risk probably shouldn't be left to the free market.  The problem is where to draw the line.  Tylenol for example can do a lot of damage if you don't take it correctly, but that's completely free & open.  I'd probably draw the line at any invasive treatment that carries risks of infection, bleeding etc.

In fact I'd like to see more medications taken out of the realm of prescriptions and put back behind the pharmacy counter where they belong, so that pharmacists can once again advise patients and dispense medications like they used to, before they became little more than human pill counters and paper pushers.  The only medications that should still be strictly controlled are antibiotics.

[Greg]

Which fat cats are you referring to here?  Last I checked, dentists earn decent salaries but can hardly be considered uber-powerful and wealthy.
?
Pugchief, what are the potential complications of teeth whitening?  I rather agree that anything that involves significant medical risk probably shouldn't be left to the free market.  The problem is where to draw the line.  Tylenol for example can do a lot of damage if you don't take it correctly, but that's completely free & open.  I'd probably draw the line at any invasive treatment that carries risks of infection, bleeding etc.

In fact I'd like to see more medications taken out of the realm of prescriptions and put back behind the pharmacy counter where they belong, so that pharmacists can once again advise patients and dispense medications like they used to, before they became little more than human pill counters and paper pushers.  The only medications that should still be strictly controlled are antibiotics.

That and sugar should be strictly controlled by the pharmacist. Someone with a weak heart condition could drink an exceptionally sugary drink (probably with caffeine in it too) and die.

[WiseOne]

Sounds like teeth whitening should be considered a medical procedure, then.  Unlike popping a pill, the skill of the person doing the procedure is critical.

Re antibiotics...my reasoning is that misuse of antibiotics hurts other people, but misuse of opioids hurts no one but the person taking the medication.  It may even be that the strict controls make matters worse, because if opioids could be bought in stores like cigarettes, alcohol, and (soon to be) marijuana, prices would be lower, addicts wouldn't feel the need to go out and rob people to fund their habits, and there would be no need for the services of organized crime.  Interestingly, I read recently that Mexican pot gangs are complaining that they are about to go out of business because pot prices have dropped due to legalization in the US.  My heart bleeds.

Antibiotic resistance on the other hand is probably the most serious public health threat facing us today.  We are entering the "post-antibiotic" era, where there are once again untreatable bacterial infections.  Less sexy than Ebola, but when all of us are elderly and hospitalized, this is what's going to kill us.

[Mountaineer]

The "old" Old West doesn't sound so bad.  The late 19th century old west - different story.  Sounds like we are living in a version of that more recent old west today (jump to the conclusions at the end of the article).

I'm not talking about the violence.  I'm talking about the naked greed, exploitation and virtual immunity of the Fat Cat Bankers, Shysters and Corporate Trusts against the "little people".  You effectively had no legal recourse other than your gun and becoming an outlaw.  That's uncivilized.

That definitely sounds like "today", now that you've brought greed, exploitation, and virtual immunity of the Fat Cat's to the party.    Pass the 45 please.

... Mountaineer

[MachineGhost]

Which fat cats are you referring to here?  Last I checked, dentists earn decent salaries but can hardly be considered uber-powerful and wealthy.?

I was referring to all corrupt cronies of the Old West.

In fact I'd like to see more medications taken out of the realm of prescriptions and put back behind the pharmacy counter where they belong, so that pharmacists can once again advise patients and dispense medications like they used to, before they became little more than human pill counters and paper pushers.  The only medications that should still be strictly controlled are antibiotics.

+1. The core problem is all of the regulations from the insurance companies and Medicare.  They have a 99% stranglehold on private pactice of medicine.  Doctors are nothing more than "standard of care" automatons; individual thought and individual patient treatment is being perished every day.  Might as well replace them with robots then!  Maybe once everyone is unemployed, creativity and challenging the status quo will flourish once again.  I approve.

[MachineGhost]

Sounds like teeth whitening should be considered a medical procedure, then.  Unlike popping a pill, the skill of the person doing the procedure is critical.

Well, the [fat] cat is out of the bag then.  There's at home teeth whitening kits you can do to yourself.  Frankly, I don't care what the reason used is so long as the case gets made at SCOTUS.  We have yet to live up to the full promise of the Constitution in terms of economic liberty.  These cartels and protectionist boards have been "protecting the public" since the Old West with local and state government's continually kowtowing to them.  It really amped up after FDR's cartelization.

[MachineGhost]

Yeah, but the problem lies in part with the doctors, who often cave to patient pressure for antibiotic Rx. The pharmacies have no control over that. I have probably been guilty of that myself on rare occasions.

I don't know.  I'm no fan of antibiotics, but my second round for my wisdom teeth extraction (clindamycin) seems to have cleared up a lingering infection that the previous round didn't do for my cracked molar (penicillin & amoxicillin).

But of course, I'm [now] very aware of the gut microbiota and how to repair the nuclear winter incurred by antibiotic use.  Ordinary people are not so fortunate and are just setup for long-term problems and diseases down the line.  I'm getting real tired of CAVEAT EMPTOR when the awareness and intelligence gap is an order of magnitude among both patients and their physicians vs the vanguard.  Gawd, I sound like a Democrat...

[MachineGhost]

That definitely sounds like "today", now that you've brought greed, exploitation, and virtual immunity of the Fat Cat's to the party.    Pass the 45 please.

"Today" started post-Civil War.  Before that time I'm not well versed other than corruption with the Presidents and Congress.

[MachineGhost]

You are seriously uninformed on this topic. OTC whitening kits use a 7% carbamide peroxide gel which breaks down into a very weak concentration of hydrogen peroxide. Dentist supplied take-home kits use a roughly 22% carbamide peroxide gel that again breaks down into a relatively weak concentration of hydrogen peroxide. The in-office bleaching treatment that is under fire in this discussion is a 35% hydrogen peroxide [caustic!] gel that must be used with soft-tissue barriers and handled with extreme care. You can buy your own home dental drill in Europe, but that doesn't mean you aren't a moron if you drill your own [or your family/freind's] teeth.

You got a reference for that?  Because we're takling about at least 25 states here shutting down teeth whitening businesses for "practicing dentistry without a license" even if they are selling take home, self-use kits and even if it is the exact same kits as sold in retail stores.  And wouldn't the onerous be on the manufacturers not to sell highly powerful hydrogen peroxides to non-dentists?  35% is utterly ridiculous if a dentist only uses 22%.  Should we draw the line between "practicing dentistry" based on the hydrogen peroxide content?  I didn't see the SCOTUS asking questions like that either; so I don't think this is about public safety at all, but ideology.

[Libertarian666]

Sounds like teeth whitening should be considered a medical procedure, then.  Unlike popping a pill, the skill of the person doing the procedure is critical.

Re antibiotics...my reasoning is that misuse of antibiotics hurts other people, but misuse of opioids hurts no one but the person taking the medication.  It may even be that the strict controls make matters worse, because if opioids could be bought in stores like cigarettes, alcohol, and (soon to be) marijuana, prices would be lower, addicts wouldn't feel the need to go out and rob people to fund their habits, and there would be no need for the services of organized crime.  Interestingly, I read recently that Mexican pot gangs are complaining that they are about to go out of business because pot prices have dropped due to legalization in the US.  My heart bleeds.

Antibiotic resistance on the other hand is probably the most serious public health threat facing us today.  We are entering the "post-antibiotic" era, where there are once again untreatable bacterial infections.  Less sexy than Ebola, but when all of us are elderly and hospitalized, this is what's going to kill us.

Right on all counts. Furthermore, those states that have allowed medical pot have had a drop in opioid deaths:
http://media.jamanetwork.com/news-item/ ... uana-laws/

I don't know why that is mysterious, though. It seems obvious to me that some people will use pot for pain control if it is legal, instead of opioids.

[MachineGhost]

It was my understanding that the NC case was only about the in-office whitening. I haven't heard that 25 states were shutting anything down, let alone for take-home kits like the drugstore sells. Again, can you please provide a reference for that statement?

I'll keep looking, but its hard to find the exact details for all the states.  Some of the states (CT, GA) being litigated against are about non-prescription strength whitening kits being sold in spas or mall kiosks along with help and advice and which is then taken home and self-applied by the customer.  I think if prescription-strength whiteners were being sold to non-dentists, the core problem would be with the suppliers skirting the laws and not the non-dentists acquiring it.

I just read an amicus brief for the NC case and it isn't fundamentally about public health at all; its about whether or not private regulatory boards have exemption against federal anti-trust laws.  This is what is at stake in the SCOTUS case.  The FTC feels that private regulatory boards are illegaly outlawing competition.  They believe they have a leg to stand on and I think they certainly do if private regulatory boards are forcing non-prescription whitening businesses out of the marketplace.  What defense can anyone seriously make if the whiteners used are non-prescription strength?  Even if it seems like a dumb business idea, its the principle at stake.  And especially whether such self-regulating private regulatory boards which don't need to lobby for anticompetitive laws, can practically write their own.  It's like being in the Old West again.  Let's nip this capitalist cronyism in the bud once and for all.

80% of dentists offer teeth-whitening services accounting for annual revenues of $25K per dentist at $350 per procedure.  Non-dentist competitors offer it for under $150.  Now if we assume that dentists are using prescription-strength whiteners, then they're clearly offering an upmarket whitening service and shouldn't be in the business of eliminating the downmarket competition and probably don't even need to fear it due to market segmentation.  It seems like a shut and closed case to me.  But at least 29 states have restricted teeth whitening to dentists only due to the actions of such private regulatory boards; 9 of those actually sought injunctions!  This is no different than the taxi medallions trying to eliminate Uber or Hilton trying to elinate AirBnB.  Until a persuasive and compelling case can be made about there being a public health menace with non-prescription whiteners, it is just economic protectionism.

The dental industry also pressured state boards, primarily by filing complaints and urging legal action against  teeth-whitening  businesses.  Id.  at  15,  17-19. Of  97  such  complaints  from  nine  states,  93  charged only  that  businesses  offering  teeth  whitening  were engaged in the unlicensed practice of dentistry; only four were genuine consumer complaints. Id. at 23-24.

At  least  81  percent  of  the  complaints  were  filed  by dental interests – dentists, hygienists, dental associa-tions,  or  dental  boards  themselves  –  while  only  four percent  came  from  consumers;  the  other  15  percent were anonymous. White Out at 19.

Without  fail,  dental  interests  claim  that  teeth-whitening  restrictions  protect  consumer  health  and safety.  Id.  at  13-14.  Yet  the  same  products  sold  by teeth-whitening  businesses  can  be  bought  and  used by anyone at home, without instruction, supervision, or a prescription, and they are regulated by the U.S. Food and Drug Administration as cosmetics. Id. at 4. Unsurprisingly, dental interests rarely point to actual evidence of consumer harm. Id. at 13-14. Indeed, dur-ing a five-year period when dental associations were urging dentists to report harm from teeth whitening, only  four  genuine  consumer  complaints  were  filed across 16 states and the District of Columbia. Id. at 23-24.  None  of  the  complaints  alleged  permanent injury, only varying degrees of gum irritation – a tem-porary side effect that is common to teeth whitening wherever it is done, including dental offices. Id.

It  should  come  as  no  surprise,  then,  that  the clamor  to  restrict  teeth  whitening  has  come  exclu-sively from dental interests, not consumers. Licensed dentists have every incentive to ban outsiders from a profitable  trade,  the  organizational  means  to  lobby effectively,  and,  through  state  boards,  the  ability  to directly  implement  public  policy.  As  public  choice theory  predicts,  the  growth  of  teeth-whitening  re-strictions  reflects  neither  consumer  demand  nor  the public  interest,  but  rather  the  economic  interests  of licensed dentists.

[Pointedstick]

Am I a heartless libertarian bastard for suggesting that people should be able to buy their own teeth-whitening products and if they hurt themselves using them, it's their own damn fault and they should stop whining and grow up? And that if they try to sue someone for their own idiocy, the court system should be structured in such a way that everyone laughs at them and they feel terrible?

[MachineGhost]

Sigh. I feel like I am talking in circles here. If the treatment that the spa is rendering involves services under the state dental practice act [like taking impressions of the teeth for take-home kits] then they are in violation of current state law. But again, it is my understanding this is about treatment performed on site.

I don't disagree with this in principle, but again, if they are performing services required by law to be done by a licensed professional, they need to desist until the law is updated, like with Uber.

Okay, here's what you need to understand.  These so-called "state laws" that you think exist (there is serious doubt as to whether state laws explicity prohibit teeth whitening by non-dentists and passing such ex-post facto to make it so doesn't cover up the rotten stench) are self-written by private self-regulatory organizations and enforced [or threat of] under color of authority, so theres a clear conflict of interest.  It's natural to want to monopolize and outlaw competition when you have the explicit or implicit backing of the state's coercion behind you.  It doesn't mean you're right, lawful or just.  So we'll ultimately see what the SCOTUS has to say about this.

80% of dentists offer teeth-whitening services accounting for annual revenues of $25K per dentist at $350 per procedure. Non-dentist competitors offer it for under $150.

Where is your source for these stats, which you seem to pull out of thin air? And are they even offering the same service?

You should know me better than that I like to pull stats out of my ass.  Start at bottom of Page 24 (Page 6): http://www.ftc.gov/sites/default/files/ ... nacmpt.pdf

But at least 29 states have restricted teeth whitening to dentists only due to the actions of such private regulatory boards; 9 of those actually sought injunctions!

Reference, please. If you are referring to your quotes below, what is their source?

See Tables 1, 2, 3, 4: http://www.ij.org/images/pdf_folder/oth ... te-out.pdf
Heck, just read the entire document; it seems to have everything summarized and referenced.

But it is different. Your examples are of Uber and airbnb are of identical services. And Uber should be licensed just like taxis. Otherwise, they have an unfair competitive advantage [no taxes, regulation, insurance costs].

Huh?  Uber is taxis/limousines, AirBnb is lodging.  How's that identical?  There's already "public safety" or "public health" issues being thrown about with these two services.  Lots of hand flappin' hyperbole from entrenched interests, very little reality.

I don't agree with your characterization of "unfair".  What is more "fair", a private cartel monopolizing and using color of authority to threaten and/or shut down potential competitors at expense of the general public's well-being (higher prices, shittier service), or those "unfair" competitors that want to operate without "joining a union" and offer superiorness in terms of what the general public actually desires?  "Fairness" should never be an issue in terms of economic profit, only "public health" as only then does a government have a legitimate interest (and I don't necessarily believe in even that, but that's the way the world currently wants to operate).

What seems to have changed in the past decade or so is that using the excuse of "protecting the public interest" since the times of the Old West (or certainly FDR!) is no longer an open and shut case for economic protectionism.  There needs to be an actual steak behind the sizzle now.

[MachineGhost]

Uber can charge less because they don't play on a level field with taxis. Do you know what a taxi medallion in NYC costs? Plus annual licenses, fees and regulations. Uber doesn't pay any of that, so they have a lower overhead and can of course then charge less for what appears to be the same service. The question is why should the taxis be subject to that BS but not Uber? That isn't fair, and it gives Uber a huge edge in profitability.

Well, the contrary is taxi cartels are not allowing a level and fair playing field.  That is why the medallions cost so much.  It is a protection racket.  So you would rather have honest and innocent taxi competitors be forced to "pay up and join a union" rather than allow a free market to operate?  That's what I call unfair B.S..  Everyone has the right to earn an honest living without preventing anyone else from doing the same.  If there are health and safety concerns involved with taxis, lodging and teeth-whitening, it can be principles-based regulated by government without fobbing it off to economic protection interests (which is the real problem right there, but I digress).  That's just common sense, right?  So I hope the SCOTUS supports the FTC's position.  These self-regulatory boards should be protecting the public, not exploiting them.  Composition of such boards isn't the issue, its agenda.

I respect your opinion too but I think you're a little biased, maybe from all the propaganda you undoubtedly read from all the various dental organizations that unequestionably support dental licensing uber alles without looking at the issue with a fine toothed comb.  Please don't conflate public safety with economic protectionism.  This is what "they" all do to get you to support them!  It is no different than when politicians talk out of one side of their mouth while acting another way.  I have a long list of cuss words I can throw out due to my feelings about that kind of B.S., but I'll refrain.

[MachineGhost]

Agreed, but what you refuse to acknowledge is that the taxi drivers can not be freed from the regulations and fees they are encumbered with that Uber is not. Which is not fair to the taxis. Because they have to pass on those extra costs to their customers to remain profitable.

Nothing is stopping those taxi drivers from fighting the taxi medallions legally, starting a competing service such as Uber or heaven forbid, go work for Uber.  Which is exactly what is happening!  So cry me a river.  Only the losers left behind are complaining here.  Dats dem breaks when you "pay up to join a union" in a capitalist economy.  At some point you've got to take a risk if you want the status quo to ever change.  It's like that 60's slogan: either you're part of the problem or you're part of the solution.  The problem here is monopoly taxis are overpriced, provide shitty and surly service and are not convenient to use at all.  Where theres a market demand, there will be a way.  But I'll acknowledge to this: monopolies are not fair; either to the "union members" or to the consumers.  They are bad for everyone.

Now I honestly don't know why entrepreneurs would want to offer non-prescription teeth whitening kits or services as a business, but there must obviously be some kind of consumer demand for it?  Perhaps they feel dentists charge too much without realizing they get to avail themselves of prescription strength whiteners or technology.  That's a marketing problem for dentists then.  I say quit bitchin' and start advertising the advantage.  How hard can it be to advertise why your low-end, unlicensed competition is inferior and yours is better?  It's not rocket science and people are sooo suspectible to marketing fiction to begin with, so hit them with a sledgehammer and rake in the revenue.

As Buffett says...  oh sheesh, I won't do it again!