August 9, 2015

Second Circuit upholds protectionist teeth-whitening policy in Sensational Smiles v. Mullen

By Second Circuit upholds protectionist teeth-whitening policy in Sensational Smiles v. Mullen

In a recent disappointing opinion, the U.S. Court of Appeals for the Second Circuit upheld the Connecticut Dental Commission’s policy of restricting the use of LED teeth-wsad toothhitening lights to licensed dentists – despite the fact that dentists are not trained to use them. Under the policy, entrepreneurs in the cosmetic teeth-whitening industry face substantial fines and even jail time if they dare shine a simple light – no more powerful than a household flashlight – on their clients’ teeth. Sensational Smiles, the company challenging the policy, argued that the restriction was unconstitutional because its only purpose was to protect the monopoly enjoyed by licensed dentists.   

Shockingly, the majority of the panel concluded that the policy was constitutional “even if the only conceivable reason for the LED restriction was to shield licensed dentists from competition.”  Judge Christopher Droney disagreed, emphasizing that there must be at least some public benefit for a rule to survive rational basis review under the constitution’s Equal Protection and Due Process Clauses.  He noted that the majority of other circuit courts that addressed the issue, including the Ninth Circuit in PLF’s victorious Merrifield v. Lockyer case, have held that pure economic protectionism is not a legitimate state interest. Now that the Second Circuit has deepened the divide on this issue, hopefully the Supreme Court will agree to hear one of these cases and unequivocally hold what we have been repeatedly saying: protecting the interests of established groups is not a proper constitutional role of government.

Until then, PLF’s Economic Liberty Project will continue to fight against anti-competitive laws that infringe on individuals’ right to earn a living without unreasonable government interference.

Shauneen Werlinger is a law clerk in PLF’s Washington, D.C.. office.

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