When Kelly Markos started offering teeth whitening in her upscale salon, she thought it would be a nice addition to her lineup of eyelash extensions, temporary tattoos and custom makeup.
But then an inspector for the Alabama Board of Dental Examiners ordered her to stop, accusing her of practicing illegal dentistry.
Markos' ongoing lawsuit with the state has waded into the murky area of regulating teeth-whitening products that are increasingly offered in settings outside the dentist's office, such as salons and mall kiosks.
The dental industry claims it's a health and safety issue; the beauty parlors say the dentists are just trying to push them out of a lucrative niche.
"As a new business owner, I'm trying to bring something new and innovative to the salon. And then to be threatened to be shut down before I really even had it going was more than a little frustrating," Markos said recently while blow-drying a customer's freshly cut hair. "I believe that this is a cosmetic service and we are on the right side of the law."
But Dr. Leslie Seldin, a dentist for 43 years and now consumer adviser and spokesman for the American Dental Association, said it's hard to know whether those bleaching trays or ultraviolet lights are sanitary or safe.
In some salons, the whitening is sometimes facilitated by people wearing white coats who hand the trays to customers to put into their own mouths or adjust the lights over their teeth.
But the ADA is worried customers might wrongly think salon employees are health care professionals.
"We do not know about what level of sterilization and disinfection is being done. You're dealing with something that is totally unregulated," Seldin said.
Many of the same products are available in stores for customers to use on themselves at home.
"What we ultimately feel this boils down to is a consumer-rights issue, because consumers should have the right to whiten their teeth any way they want to whiten their teeth as long as it's safe," said Paul Klein, vice president of White Smile USA. The Atlanta-based company licenses its whitening products to locations in 23 states, including Markos' salon.
Whitening at a salon or mall shop using bleaching trays or ultraviolet light usually costs about $100 to $200. It can cost up to $400 and more at a dentist's office.
A Montgomery judge has ruled in favor of Alabama's dental board in a lawsuit brought by White Smile USA and Markos, finding that whitening constitutes the practice of dentistry and requires a license.
Other states addressing concerns
Birmingham attorney Jim Ward, who represented the Alabama board in the case, said the issue is being addressed in several states, including Wyoming, Louisiana, North Carolina, Minnesota and New Mexico, and that many have reached the same conclusion as the Alabama judge.
Klein said his company has been discussed in New Mexico and Tennessee but there's never been any court involvement until Alabama.
"We feel the state is trying to use their regulatory power to protect a monopoly for the dentists, and we don't think that's right," he said.
Last month, the Tennessee Board of Dentistry, following complaints about mall kiosks, changed its rules to clarify that whitening can only be performed by licensed dentists or hygienists and dental assistants under their direct supervision.
"It's amazing — we never touch the customer's mouth, never touch the customer, period, and we don't see how that could possibly be practicing dentistry," said Klein, who was visibly agitated as he discussed the situation.
Ohio's dental board agreed with Klein last year, finding that while it does have some concerns about unregulated use of the materials, whitening by non-dentists is OK as long as consumers position the light by themselves, put the material on their own teeth, and no one else touches their mouths.
"Simply providing a consumer with the materials to make a tray and demonstrating to them how to apply materials to their teeth for bleaching purposes is not the practice of dentistry," the board said in its decision.
The ADA's Seldin said that he first saw such whitening being done on a cruise about seven years ago, but that the practice has really taken root within the past four or five years.
"The American Dental Association has a policy but that's not enforceable in any way," he said. "The dental boards and governments of states are going to have to figure out how they're going to handle it."