Consumers who were counting on a bright white smile for the holiday season may find it harder, and more expensive, than they thought.

Dentists in several states are trying to prohibit non-dentists — such as employees of tanning salons, hair salons and spas — from offering teeth whitening, claiming that non-dentists lack the expertise to safely perform the procedure. Coincidentally, dentists also tend to charge more — between $300 and $700 per treatment — than non-dentists, who typically offer the service for less than $100, according to a recent Wall Street Journal article.

“The dentists are the incumbents in the high-end teeth whitening business; competitors are seeking to enter this market and take away market share by offering the service at a lower price. That’s a very common situation,” says Wharton legal studies and business ethics professor Richard Shell, who addresses this dynamic in his book, Make the Rules or Your Rivals Will. “Incumbents are always trying to use their political clout to maintain their exclusive right to sell a product or service. It’s not that different from optometrists trying to stop department stores from selling reading glasses, or the dairy industry fighting to keep margarine out of the market as a cheaper substitute for butter.”

In this case, Shell says, “the political battle will be fought over how the issue is framed. The incumbents are attempting to portray teeth whitening as a medical procedure that needs to be executed according to a high standard of professional performance in order to avoid any medical risk. The people seeking to enter the market argue that it is a cosmetic treatment, like hair coloring, that anyone who is reasonably careful can accomplish at no risk.”

According to the Journal article, dentists in New Jersey, North Carolina and Connecticut are taking on the non-professionals, with mixed results. In Connecticut, non-professionals are trying to overturn a rule passed by the state dental commission that prohibits them from offering the teeth-whitening service. In North Carolina, the state dental board has accused non-professionals of engaging in “unlicensed stain removal” and has tried to catch violators on camera. The Federal Trade Commission, however, weighed in on the side of the non-dentists. And in New Jersey, a court ruled in favor of a tanning chain that had been sued by a private trade group representing dentists — a decision the dentists are appealing, the Journal notes. 

The dentists may have a hard time proving their point, Shell suggests, because teeth whitening, except in extreme cases, is probably “no more dangerous than swallowing toothpaste. Even after dentists perform the procedure, they give you a kit that you take home and use yourself. So it obviously doesn’t have to be done in a medical office. This is a case where the profit margins for dentists are huge, and they are fighting hard to keep them.” Meanwhile, non-dentists can point to the fact that “teeth whiteners are in practically every toothpaste, and you can buy whitening strips over the counter…. A Consumer Reports article that rated at-home tooth whiteners shows you just how common a consumer product it is.”

Shell says he would not be surprised if state dental associations lobby for special state taxes on teeth whitening services that are not provided by licensed dentists.

One of the classic examples of an industry that tried to use legal mechanisms to exclude its competitors was the national railroad association’s attempt to restrict trucks to short-haul routes while keeping the long-haul routes for themselves, even though there was no business reason for this restriction. “The railroads claimed that long-haul trucks would damage the roads and make highway driving less safe,” Shell notes. “As anyone who has driven on an interstate highway knows, the railroads lost.”