Health Care

Barnes & Thornburg: 2nd Circuit Upholds Connecticut State Dental Commission ‘Economic Protectionism’


By Serj Mooradian

 On July 17, 2015, the United States Court of Appeals for the 2nd Circuit affirmed a district court decision that the Connecticut State Dental Commission did not violate the Equal Protection and Due Process Clauses of the federal Constitution when it promulgated a regulation that only licensed dentists may use a light emitting diode (LED) procedure for teeth whitening. 

The plaintiff in Sensational Smiles v. Mullen, 2015 WL 4385295, was a non-dentist owned company that provided the LED teeth whitening procedure. It argued that although Connecticut had an interest in protecting the oral health of its residents, that there no rational basis exists between that interest and the regulation prohibiting the teeth-whitening procedure, because even if LED lights could generally cause harm, that dentists are not trained in the use of LED lights or to practice of teeth whitening. Sensational Smiles argued that as a result, the regulation constituted economic protectionism of dental services enjoyed by licensed dentists in Connecticut. 

In contrast, the State Dental Commission argued that it gathered evidence that if a patient undergoing LED teeth whitening did suffer a burn, that a dentist would be the most appropriate person to treat the injury. Additionally, it argued the use of bleach on teeth requires diagnostic expertise and that only a dentist possesses the skill to distinguish between pathologic and non-pathologic causes of tooth discoloration, and whether bleaching is appropriate. 

The court agreed with the State Dental Commission’s arguments and further discussed the “simple truth is that the Supreme Court has long permitted state economic favoritism of all sorts, so long as that favoritism does not violate specific constitutional provisions or federal statutes.” Here, because the law had a rational basis, any economic protectionism was incidental and did render the regulation a Constitutional violation (the court carefully declined to address whether the rule was a violation of federal anti-trust laws) [enhanced opinion available to subscribers | Lexis Advance].

Serj Mooradian is an associate in the Chicago office of Barnes & Thornburg LLP and a member of the Healthcare Department. He concentrates his practice on counseling healthcare clients on a range of federal and state regulatory and compliance issues, professional licensure matters, agreements, and transactional and corporate matters.

For more information about LexisNexis products and solutions, connect with us through our corporate site.