02981758.

3 1


IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

KEITH WESTPHAL, ET AL., )
)
Plaintiffs, )
)
v. ) Case No.: CV- 2013-901678.00
)
J. DAVID NORTHCUTT, III., D.M.D., )
ET AL., )
)
Defendants. )

DEFENDANTS MOTION FOR SUMMARY JUDGMENT
AND SUPPPORTING MEMORANDUM OF LAW

Defendants J. David Northcutt, III, Bobby R. Wells, Stephen R. Stricklin, Thomas T.
Willis, Sam J. Citrano, Jr., William Chesser, and Sandra Kay Alexander, (collectively, the
Dental Board), acting in their capacity as the members of the Board of Dental Examiners of
Alabama, move for summary judgment on all claims and issues.
I. INTRODUCTION
Plaintiffs Keith Westphal and Joyce Wilson ask this Court to declare unconstitutional the
Alabama statute that requires a person who engages in the business of offering teeth-whitening
services to be a licensed dentist. The Plaintiffs bear a heavy burden to demonstrate that the
Alabama Dental Practice Acts restrictions on teeth-whitening services are not constitutional.
The factual record before this Court demonstrates that the commercial whitening of teeth is an
activity that involves health and safety concerns that are appropriate for governmental regulation.
The factual record before this Court demonstrates that summary judgment should be entered in
favor of the Dental Board.

ELECTRONICALLY FILED
8/8/2014 6:16 PM
01-CV-2013-901678.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK

02981758.3 2

II. NARRATIVE STATEMENT OF UNDISPUTED, MATERIAL FACTS
1

Plaintiffs Keith Westphal and Joyce Wilson wish to open businesses in Alabama that
offer teeth-whitening services. Complaint 4-5. Neither are licensed dentists. Id. Non-
dentist teeth-whitening services are typically offered in a mall kiosk, salon, spa, or a standalone
business location. Complaint 1, Westphal Depo. p. 48. Non-dentist teeth-whitening involves
the sale of a whitening agent that is applied to the customers teeth using a facility and
equipment furnished by the teeth-whitening provider. Id. Complaint 12-13.
There are at least a dozen different types of non-dental teeth-whitening systems that are
utilized in the United States. Wilson Depo. p. 146. The Plaintiffs do not know what procedures
and limitations may be utilized by other non-dentist teeth-whitening businesses. Id. at p. 151;
Westphal Depo. at pp. 43-44.
Keith Westphal
Mr. Westphal has owned and operated a Natural White tooth-whitening business in
Cornelius, North Carolina since January 2012. Westphal Depo. At pp. 29-30. He has no dental
or other medical training or experience. Id. at p. 18, 46-47. He decided to become a franchisee
for Natural White because a friend recommended the company and because it was half the cost
of other franchises. Id. at pp. 29-30; 39. Before opening a Natural White franchise, he looked
primarily at legal and business factors and not at the health or safety aspects of operating a tooth-
whitening business. Id. at pp. 29-30.
Mr. Westphals business website touts the effectiveness and safety of Natural Whites
BeamingWhite
TM
tooth-whitening products. Westphal Depo. Ex. 6 at pp. 1, 4. The website states
that the BeamingWhite
TM
products, which use a pen applicator and hydrogen peroxide, are

1
The facts in this section are based upon the Complaint, deposition testimony and exhibits. All of these evidentiary
materials are attached hereto as Exhibit 1 and are incorporated by reference herein.

02981758.3 3

superior to products using trays and carbamide peroxide, which he says break down to produce
urea and ammonia. Id. at p. 4. A BeamingWhite
TM
Teeth Whitening Guide was provided to Mr.
Westphal to give a description of the products and how they are to be used. Westphal Depo. Ex.
3. The Guide warns that the BeamingWhite
TM
product uses 16% hydrogen peroxide, the
highest concentration in the cosmetic teeth whitening industry. Id. at p. 18. (emphasis in
original). The Guide further warns franchisees that 16% hydrogen is a very strong gel and
therefore is NOT suitable for home use, where customers will use it without your supervision
and may hurt themselves. Id. (emphasis in original). The BeamingWhite
TM
Guide repeatedly
prohibits technicians using the BeamingWhite
TM
system from having direct contact with a
customers teeth, with instructions like the following: NEVER put anything in the
customers mouth. Id. at p. 9 (emphasis in original). DO NOT place the tray or anything
else in the customers mouth. Id. at p. 4. (emphasis in original). [Y]ou are not allowed to put
anything directly in the customers mouth. Id. at p. 9 (emphasis in original). The
BeamingWhite
TM
Guide further warns that teeth whitening should not be performed on pregnant
women or on people who have poor tooth enamel or decalcification, have periodontal disease,
gingivitis, or gums in poor condition, wear braces, recently had oral surgery, have decaying
teeth, exposed roots, or open cavities, or have a history of allergies to peroxide products. Id. at p.
12.
Mr. Westphals business website states that his whitening technicians have a minimum
of two years experience in whitening teeth. Westphal Depo. Ex. 6 at p. 6. The website states:
Always ask how long the tech (who will be whitening YOUR teeth) has been in the business. If
the tech is new with less than 6 months experience, be cautious. Id. (emphasis in original). The

02981758.3 4

website further states that Mr. Westphals business does not charge sales tax because [t]eeth
whitening is a non-taxable service. Id. at p. 8 (emphasis added).
Mr. Westphal is one of two people at his business who provide teeth-whitening services
to customers. Westphal Depo. at pp. 47-48. His customers read and sign a consent form and he
asks about their prior whitening experiences, primarily for marketing purposes. Id. at p. 65. He
does not take a medical history nor does he ask about allergies. He leads the customer to a chair
in a treatment room, where they are given protective glasses. Wearing gloves, he gives the
customer a cheek retractor and instructs the customer how to put it in place. Id. In direct
violation of the BeamingWhite
TM
Teeth Whitening Guide, Mr. Westphal uses an applicator pen to
apply whitening gel directly to the teeth for approximately 60-80% of his customers. Id. at pp.
67, 73. He positions an enhancing light in front of the customers mouth, inspects the results of a
whitening session, and immediately repeats the process as many as two more times if the
customer requests. Id. at p. 66. A whitening session can include the application of a
remineralization product on the teeth using a cotton swab. Id. at pp. 66-67. Mr. Westphal
applies the remineralizaiton product directly to his customers teeth when they request that he do
so. Id. at p. 72. After a customers procedure is completed, Mr. Westphal wipes down the chair
and equipment with an ammonia-based cleaner like Windex, using [w]hatever is on sale that
week. Id. pp. 71, 74.
Joyce Wilson
Joyce Wilson operated a beauty salon and spa in Jasper, Alabama for 26 years. Wilson
Depo. at p. 5. She has no dental or medical training. Id. at p. 9. Beginning in late 2005 or early
2006, she offered teeth-whitening services to her customers. Id. at pp. 87-88. These services

02981758.3 5

consisted of providing a whitening product, instructing the customer how to use the product, and
providing a chair and enhancing light for the application process. Id. at pp. 83, 181-184.
Around 2005, Ms. Wilson formed BEKS, Inc., a business that develops and sells
BriteWhite
TM
teeth-whitening systems for use in salons, by dentists, and at home. BEKS, Inc.
sells teeth-whitening products to customers through the internet. Wilson Depo p. 83, Complaint
51. Since 2006, Ms. Wilson has sold several thousand BriteWhite systems nationwide to
hundreds of businesses Id. at pp. 115-116.
In 2006, Ms. Wilson received a letter from the Dental Board instructing her to stop
offering teeth-whitening services in Alabama. Complaint. 50. She sold her salon in 2006 and
has been out of the spa and salon business since that time. Wilson Depo. at p. 33.
In 2007, Ms. Wilson formed the Council for Cosmetic Teeth Whitening (CCTW), an
advocacy group for businesses performing non-dentist teeth whitening. Id. at pp. 151, 155. The
CCTW published a best practices manual to establish industry safety standards for performing
non-dentist teeth-whitening. Id. Ex. 7. The CCTW website states: In order to avoid legal
action and ensure client safety, it is IMPERATIVE that all companies in this industry take
EXTREME caution in the strength and quality of products you are offering, how you conduct
whitenings and the language you use on your websites and promotional materials. Wilson
Depo. Ex. 12 at p. 6 (emphasis in original).
The Dental Board
The Board of Dental Examiners of Alabama (the Dental Board) is responsible for
enforcing Alabama law regarding the unlicensed practice of dentistry. Complaint. 25. The
Alabama Dental Practice Act, Ala. Code 34-9-1 et seq., prohibits persons from engaging in
the practice of dentistry unless licensed. Id. 21; Ala. Code 34-9-3, 34-9-6. Alabama law

02981758.3 6

deems a person to be practicing dentistry if he or she performs, or attempts or professes to
perform, any dental operation or dental service of any kind, gratuitously or for a salary, fee,
money or other remuneration paid . Id. 34-9-6(1). The Act provides that the practice of
dentistry includes a person who [p]rofesses to the public by any method to bleach human teeth,
performs bleaching of the human teeth alone or within his or her business, or instructs the public
within his or her business, or through any agent or employee of his or her business, in the use of
any tooth bleaching product. Id. 34-9-6(12).
Dr. Michael Maniscalco
Michael Maniscalco has been a licensed, practicing dentist in Birmingham, Alabama
since 1981. Maniscalco Depo. at p. 26. Dr. Maniscalco has a Bachelor of Science degree and a
D.M.D. degree from the University of Alabama-Birmingham. Id. at p. 28. He has taken
multiple Continuing Education courses on teeth whitening. Id. at pp. 25, 45-46.
Dr. Maniscalco has performed peroxide-based teeth whitening for his patients since 1983.
Id. at p. 27. He treats approximately 2,000 patients and he performs teeth whitening for
approximately 60% of them. Id. at pp. 26-27. Dr. Maniscalco always conducts a pre-treatment
examination in order to confirm that a patient does not have health problems or injuries that
would make teeth whitening inappropriate. Id. at pp. 25, 52. His office follows standard
hygiene precautions, which include wearing mask, glasses, and gloves. Id. at pp. 43-44. He
disinfects treatment rooms and equipment using a medical-strength disinfectant spray and
sterilizes metal instruments with an autoclave. Id. at p. 44.
Based on his experience and background, Dr. Maniscalco has concerns about teeth
whitening services being provided by non-dentists. Id. at p. 47. He has personally witnessed

02981758.3 7

peroxide burns of the lips and gums and cases of extreme sensitivity to the whitening agents. Id.
at pp. 48-49.
Dr. Kenneth Tilashalski
Kenneth Tilashalski is a dentist and professor at the University of Alabama at
Birmingham School of Dentistry. Tilashalski Depo. at pp. 62-63. Various aspects of teeth
whitening are taught at UABs dental school, including internal bleaching within the
Endodontics curriculum and vital tooth bleaching as part of Operative Dentistry. Id. Ex. 1 at p.
52. Tooth bleaching is also covered in Pathology and other disciplines and courses. Id. at pp.
54-55. UAB students receive clinical credit for performing teeth-whitening procedures. Id. at p.
55.
Based on his education, experience, and research, Dr. Tilashalski expresses the following
opinions regarding the practice of teeth whitening by non-dentists:
1. Teeth whitening by non-dentists presents actual and potential concerns about the
publics health and safety. Scientific and industry literature articles document the concern of
medical professionals regarding the possible dangers of teeth whitening. At least one published
article documents significant damage and pain resulting from a non-dentist teeth-whitening
procedure. Non-dentist teeth whitening (a) fails to address whether teeth whitening is
appropriate for a particular individual, possibly leading to causation or worsening of oral injuries
or disease; (b) presents the potential for sanitation and infection risks for consumers and
practitioners; and (c) creates an illusion of professional expertise or experience without providing
the benefits of care by a trained dentist. Tilashalski Depo. Ex. 1.
2. Significant variations among the products and procedures utilized in non-dentist
teeth whitening create uncertainty and risk in that there is no way to know or predict the precise

02981758.3 8

technique or product that may be used by any particular non-dentist practitioner. Without
foundational dental training, non-dentist teeth whitening may be performed in a way that causes
injury or illness. Id.
3. Health and safety concerns arise when non-dentist practitioners do not follow
established protocols for teeth-whitening products and equipment, such as Mr. Westphals
practice of personally applying chemicals directly to the teeth of his customers. Id.
4. Dental schools provide general and specific expertise that lessens the risk of teeth-
whitening procedures. Dental training on the subjects of anatomy, physiology, pathology,
disease screening, oral hygiene, disease diagnosis, and infection control is valuable in preventing
and treating problems arising from teeth-whitening procedures. Id.
5. Non-dentist teeth whitening is not likely to improve a persons oral health or
motivate them to go to the dentist more often. Persons who undergo regular non-dentist teeth
whitening are just as likely to visit a dentist less frequently because of the faulty belief that they
are periodically being seen by a person claiming to have expertise about teeth, or because they
believe that whiter teeth are healthier teeth, or because they have spent their dental care budget
on teeth cleaning rather than actual dental care. Id.
In reaching his conclusions, Dr. Tilashalski was influenced by his own experience and
education, and by articles published in scientific journals and by the American Dental
Association. Id. at p. 1. Those publications
2
contained statements like the following regarding
the safety and health risks of tooth whitening:

2
Two of the publications relied upon by Dr. Tilashalski were authenticated during his deposition. The other two
articles are self-authenticating writings that are appropriate for judicial notice by the Court. See Ala. Rules of Evid.
201, 902(6), 101(b)(6).

02981758.3 9

[C]oncerns have remained about the long-term safety of unsupervised bleaching
procedures, due to abuse and possible undiagnosed or underlying oral health
problems. Although published studies tend to suggest that bleaching is a
relatively safe procedure, investigators continue to report adverse effects on hard
tissue, soft tissue, and restorative materials. Tooth Whitening/Bleaching:
Treatment Considerations for Dentists and their Patients. ADA Council on
Scientific Affairs (September 2009, revd 2010) at p. 2.
www.bamatis.com/docs/HOD_whitening_rpt.pdf.
The following report describes a case of an acute flare-up following the use of a
gel bleaching system on a discolored maxillary central incisor. The case
illustrates the importance of determining the preoperative pulpal states prior to
any vital bleaching procedure and suggests that bleaching agents in a vehicle gel
can diffuse into the pulp system and cause an alteration of both the pulpal and
periradicular status of a tooth. Tilashalski Depo. Ex. 3 at p 1.
Dental patients and [dental health-care personnel] can be exposed to pathogenic
microorganisms including cytomegalovirus (CMV), HBV, HCV, herpes simplex
virus types 1 and 2, HIV, Myobacterium tuberculosis, staphylococci, streptococci,
and other viruses and bacteria that colonize or infect the oral cavity and
respiratory tract. Kohn, Guidelines for Infection Control in Dental Health-Care
Settings 2003 at p. 2, www.cdc.gov/mmwr/PDF/rr/rr5217.pdf.
[T]here are numerous studies which exhibited microstructural changes of dental
hard tissue induced by bleaching agents, especially when peroxides are applied in
high concentrations. It was also reported that slight surface alterations, as

02981758.3 10

assessed by scanning electron microscopy, and a decrease of surface
microhardness and fracture toughness might occur due to bleaching of dental hard
tissues. Tilashalski Depo. Ex. 2 at p. 1.

III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. ALA. R. CIV. P. 56(c). Once the movant makes
a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the
non-moving party to present substantial evidence regarding the existence of a genuine issue of
fact. Pickens v. Town of Brilliant, 675 So. 2d 428, 429 (Ala. Civ. App. 1995) (emphasis added).
Evidence is substantial for purposes of precluding summary judgment only if it is of such
weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved. Thompson Prop. v. Birmingham Hide &
Tallow Co., 839 So. 2d 629, 633 (Ala. 2002) (quoting West v. Founders Life Assur. Co. of Fla.,
547 So. 2d 870, 871 (Ala. 1990)).
IV. ARGUMENT
Plaintiffs have a heavy burden to invalidate the Dental Practice Acts restriction on teeth-
whitening services. When this Court reviews a statute for the purposes of determining whether
it violates the Alabama Constitution, we apply a presumption in favor of constitutionality and
will seek to sustain the enactment of the Legislature, a coequal branch of government. Hutchins
v. DCH, 770 So. 2d 49, 59-60 (citing Reed v. Brunson, 527 So.2d 102 (Ala.1988)). Plaintiffs
bear the burden of establishing it to be clear beyond reasonable doubt that the challenged
statute violates the Alabama Constitution. Id.

02981758.3 11

Plaintiffs contend that the Dental Practice Acts restriction on teeth-whitening services by
non-dentists violates the due process and equal protection clauses of the Alabama Constitution.
Alabama courts evaluate constitutional challenges under a rational basis standard and/or an
overbreadth test. In light of the undisputed, material facts before this Court, Plaintiffs cannot
prevail under either standard and their claims are due to be rejected as a matter of law.
A. Plaintiffs Do Not Demonstrate That the Dental Practice Acts Restrictions
On Teeth-Whitening Services Have No Rational Basis.

For a case which involves neither a suspect class nor a fundamental right, the rational
basis test is the proper test to apply to either a substantive due process challenge or an equal
protection challenge. Gideon v. Alabama State Ethics Comm'n, 379 So. 2d 570, 573-74 (Ala.
1980).
3
Under the rational basis test the Court asks: (a) Whether the classification furthers a
proper governmental purpose, and (b) whether the classification is rationally related to that
purpose. Id.
The law is clear that a party attacking the constitutionality of a statute has the burden of
negating every conceivable or reasonable basis that might support the constitutionality of the
statute. Northington v. Alabama Dep't of Conservation & Natural Res., 33 So. 3d 560, 564 (Ala.
2009) (emphasis added). The Alabama Supreme Court has recognized that as long as the
statute implements any rational purpose it should be upheld. Id. (emphasis added); see also
State v. Colonial Pipeline Co., 471 So. 2d 408, 412 (Ala. Civ. App. 1984) ([A] statutory

3
Plaintiffs do not argue that they belong to a suspect class or are attempting to protect a fundamental
right. Suspect classes are determined by characteristics related to birth, racial characteristics, alienage,
and similar factors, while fundamental rights are those such as voting, free association and travel, and
familial rights within a recognized zone of privacy. See Hutchins v. DCH Reg'l Med. Ctr., 770 So. 2d 49,
58 (Ala. 2000).


02981758.3 12

discrimination will not be set aside if any set of facts reasonably may be conceived to justify it.)
(emphasis added).
Within this legal framework, Plaintiffs challenge falls short. Their argument that the
Dental Practice Act is inequitable, but [m]ere inequality under such classification is not
sufficient to invalidate a statute. State v. Spann, 118 So. 2d 740, 743 (1959). Unless clearly
and patently arbitrary, oppressive and capricious on its face, such classification is not subject to
judicial review. Id. As long as there is any rational basis for the statute, the Plaintiffs
challenge fails.
Plaintiffs do not negate every conceivable basis for upholding the constitutionality of the
Dental Practice Acts restrictions on teeth-whitening services. The record before this Court does
not negate the State of Alabamas legitimate interest in reducing the risks associated with teeth
whitening, and promoting the safe offering of teeth-whitening services. The factual record in
this case does not negate the Legislatures finding that it is a matter of public interest and
concern that the dental profession merit and receive the confidence of the public and that only
qualified dentists be permitted to practice dentistry in the State of Alabama. Ala. Code
34(9)(2)(a).
Because Plaintiffs are unable to nullify every potential basis for the Dental Practice Acts
restriction on teeth-whitening services, they are forced to argue that the primary effect of the
Acts restriction on teeth-whitening services is to protect dentists from competition. This
argument offers no help under the rational relation test, which requires only one conceivable,
rational basis for the statute. The policy of protecting the oral and physical health and safety of
Alabama citizens is that rational basis. Because Plaintiffs cannot negate every conceivable basis

02981758.3 13

for the Acts restriction on teeth-whitening services, they cannot as a matter of law carry their
burden under the rational basis test.
B. Plaintiffs Do Not Pass The Overbreadth/Substantial Connection Test.
The Plaintiffs attempt to invoke the overbreadth challenge to constitutionality. Statutes
and regulations are void for overbreadth if their object is achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. Scott & Scott, Inc. v.
City of Mountain Brook, 844 So. 2d 577 (2002) (citations omitted). The Alabama Supreme
Court has articulated an exacting standard of review for an overbreadth challenge: We
approach the question of the constitutionality of a legislative act with every presumption and
intendment in favor of its validity and seek to sustain rather than strike down the enactment of a
coordinate branch of the government. Monroe v. Harco, Inc., 762 So. 2d 828, 831 (Ala. 2000)
(citations omitted). Moreover, in order to overcome the presumption of constitutionality, the
party asserting the unconstitutionality of the Act bears the burden to show that the Act is not
constitutional. Board of Trustees of Employees Retirement Sys. of Montgomery v. Talley, 291
Ala. 307, 310, 280 So. 2d 553, 556 (1973).
In order to prevail on an overbreadth challenge, a party must demonstrate that a statutes
restriction does not bear a substantial relation to the public health, safety, or morals, or to the
general welfare, the public convenience, or to the general prosperity. Scott & Scott v. City of
Mountain Brook, 844 So. 2d at 594. The factual record before the Court demonstrates that there
is a substantial relation between the Dental Practice Act and a legitimate governmental interest.
The Act regulates the provision of dental services, an area that unquestionably falls within public
health and safety. Statutes regulating and safeguarding the practice of professions such as
dentistry are to be given a liberal construction in order that the purpose of their enactment be

02981758.3 14

attained. Board of Dental Examiners v. King, 364 So. 2d 311 (Ala. Civ. App. 1977), revd on
other grounds, 364 So. 2d 318 (Ala. 1978). The Plaintiffs complaint advances numerous
arguments that the Dental Practice Acts restrictions on teeth-whitening services are illogical,
unnecessary, unreasonable, and onerous. Those policy arguments, however, do not change the
fact that the Dental Practice Acts restriction on teeth-whitening is substantially related to public
health and welfare.
C. Plaintiffs Do Not Demonstrate That Non-Dentist Teeth Whitening Poses No
Actual or Potential Risk to Public Health Or Safety.

In order to prevail under either a rational relation or overbreadth challenge, Plaintiffs
must demonstrate that non-dentist teeth whitening poses no actual or potential health or safety
risk to the public. The factual record in this case amply demonstrates actual or potential risk.
Plaintiffs own safety materials and instruction manuals stress the need for competent
supervision of the teeth-whitening process because customers may hurt themselves if the
whitening products are used without supervision. Mr. Westphals website cautions potential
customers to inquire about the experience level of a teeth-whitening technician and encourages
them not to use a technician with less than two years of experience. The website of Ms.
Wilsons advocacy group advises teeth-whitening practitioners to take extreme caution to
ensure client safety. Dr. Michael Maniscalco testifies that he has observed lip and gum burns
and pain resulting from sensitivity to peroxide whitening products. Dr. Tilashalski has
significant professional concerns about safety and health risks from non-dentist tooth whitening.
In addition, he cites published reports discussing similar concerns by the American Dental
Association and others, as well as an article reporting injuries resulting from non-dentist teeth
whitening.

02981758.3 15

Plaintiffs attempt to minimize the risks of non-dentist teeth whitening by characterizing
them as temporary or minor. There is no severity or permanence scale, however, that must be
met in order for the Alabama legislature to recognize an area as one warranting regulation. Any
rationally perceived risk of danger is a sufficient basis for legislation designed to protect the
public interest. Moreover, legislation may constitutionally address threatened dangers that have
not yet occurred. See Vestavia Plaza, LLC v. City of Vestavia Hills, Ala.. ___ F.Supp.2d ___,
2013 WL 4804196 (N. D. Ala. 2103) (upholding constitutionality of business license ordinance
bearing a rational relationship to eliminating a future threat to the public). See also Jones v.
Schneiderman, 888 F.Supp. 2d (S. D. N. Y 2012) (legislatures decision may be based on
rational speculation unsupported by evidence or empirical data).
A recent decision involving non-dentist teeth whitening is very instructive on the issue of
whether a slight or even hypothetical health risk is sufficient to warrant legislative restriction. In
Martinez v. Mullen, ___ F.Supp.2d ___, 2014 WL 1315658 (D. Conn. 2014), a non-dentist teeth-
whitening business challenged a ruling by the Connecticut State Dental Commission that only a
licensed dentist may shine an LED light in the mouth of a consumer seeking to whiten teeth.
The Plaintiff in the Martinez case, represented by the same law firm and expert witness as the
Plaintiffs at bar, argued that the Commissions ruling was unconstitutional under the federal
equal protection and due process clauses. Specifically, the Martinez plaintiff argued that using
an LED light was harmless because there were no reported incidents of serious or lasting injury
using such a light. The Commission countered with scientific and industry literature citing a
possible health risk from the use of LED lights. The court upheld the constitutionality of the
Commissions ruling even though the Commissions supporting materials hardly support a
definitive conclusion and were tentative in comparison to the opinion of plaintiffs expert

02981758.3 16

witness Id. at *13-14. The court held that the medical literature provided a conceivable basis
for the legislature to conclude that LED light might pose a health risk. Id. at *14. At least
where neither suspect classifications nor fundamental rights are involved, the Constitution does
not prevent government officials from taking prophylactic measures to protect the public in the
face of uncertainty. It is thus immaterial that as Plaintiff emphasizes the medical literature
does not cite any instances in which anyone has ever been harmed by an LED light. Id.
D. The Plaintiffs Claims Are Undercut By The White Smile Decision.

In White Smile USA, Inc. v. Board of Dental Examiners of Alabama, 36 So. 3d 9 (Ala.
2009), the Alabama Supreme Court rejected claims that are closely linked to Plaintiffs claims in
the case at bar. The plaintiff filed suit for declaratory judgment that the Dental Board was
incorrectly interpreting the Dental Practice Act to include teeth-whitening services as within the
practice of dentistry.
4
The plaintiff argued that its teeth-whitening services merely provided an
over-the-counter product that was self-administered by the customer in a salon. 36 So. 3d at 13.
The trial court ruled against the plaintiff and held that the sale of teeth-whitening products and
services constituted the practice of dentistry as defined by the Dental Practice Act. Id. at 9. The
Alabama Supreme Court affirmed, holding that dental services should be interpreted to mean
a helpful act or useful labor of or relating to the teeth. Id. at 14. The Alabama Supreme Court
went on to hold that the teeth-whitening process utilized by the plaintiff constituted a dental
service. The court noted that:
Although the LightWhite teeth-whitening process is largely self-
administered by the customer, [Plaintiff] DMarkos offers the customer
assistance in that its employees are present with the customer throughout
the process. DMarkos employees instruct the customer in the proper
application of the product; they answer questions, presumably with some

4
In 2009, the Dental Practice Act did not include the express reference to teeth-whitening services that was added
by amendment in 2011.

02981758.3 17

knowledge; and they handle many of the materials used in the process
while wearing protective gloves. Accordingly, DMarkos sells not only
the product, but also the helpful acts and useful labor of its employees that
relate to the customers teeth-whitening service. Id.

The White Smile court acknowledged that the parties had raised conflicting policy
arguments regarding the interpretation of the Dental Practice Act. The plaintiffs in that case
argued as do the Plaintiffs in the case at bar that the Acts restriction on teeth-whitening
services was overly broad and unreasonable, and was motivated by economic rather than safety
concerns. Notably, the court declined to address those criticisms, holding that the evaluation of
the merits of the competing policy considerations is a matter for the legislature. Id. at 14.
In the White Smile decision, the Alabama Supreme Court examined teeth-whitening
services that are similar to (but less invasive than) the services provided by Plaintiffs.
5
In both
cases, the plaintiffs argue that the teeth-whitening agent they sell is available over the counter
and that they do not (or at least should not) apply the product to the customers teeth but merely
assist the customer to do so. The relatively hands-off whitening services at issue in the White
Smiles case were held to be the provision of dental services and therefore the practice of dentistry
and subject to statutory regulation. This holding was legislatively confirmed in 2011, when the
Dental Practice Act was amended to expand the definition of practice of dentistry to include a
person who performs tooth bleaching. Perhaps most significantly, the Alabama Supreme Court
in White Smile declined to supplant the Legislatures judgment regarding the policy

5
In the White Smile case, there was no evidence that the plaintiff was directly applying chemicals to the teeth of
consumers, as Mr. Westphal has admitted that he does a majority of the time. Mr. Westphals own website
confirms the service nature of his business when he assures potential customers that he does not charge sales tax
because teeth-whitening is a non-taxable service.

02981758.3 18

considerations for the statute with the Courts judgment, which is precisely what Plaintiffs ask
this Court to do.
6

CONCLUSION
The factual record before this Court does not satisfy the heavy burden that the Plaintiffs
must meet in order to hold the Dental Practice Act unconstitutional. If an ordinance is fairly
debatable, a court will not substitute its judgment for that of the . . . government body acting in a
legislative capacity. Scott & Scott, Inc., 844 So. 2d at 595 (quoting City of Russellville v.
Vulcan Materials Co., 382 So.2d at 526). Plaintiffs have not demonstrated that the Acts
restrictions on teeth-whitening services have no rational basis or no substantial relation to a
legitimate government interest. Under either standard, the Act is not unconstitutional and
Plaintiffs claims should be denied as a matter of law.
/s/ Luther M. Dorr, Jr.
Luther M. Dorr, Jr. (AL Bar No. DOR 007)
Vanesa Hernandez


MAYNARD COOPER & GALE, P.C.
2400 Regions/Harbert Plaza
1901 Sixth Avenue North
Birmingham, Alabama 35203-2602
Phone: (205) 254-1000
rdorr@maynardcooper.com
vhernandez@maynardcooper.com


6
The White Smile court also rejected a constitutional challenge raised by the Institute for Justice in an amicus curiae
brief. As in the case at bar, the Institute for Justice argued that the test for constitutionality is whether the statute
imposes a restraint that is reasonable. See Brief of the Institute for Justice as Amicus Curiae, White Smile USA,
Inc. v. Board of Dental Examiners, 2009 WL 2194766.

02981758.3 19

/s/ Susan F. Wilhelm____________
Susan F. Wilhelm, Deputy Attorney General
(AL Bar No. WIL 409)
Board of Dental Examiners of Alabama
5346 Stadium Trace Parkway
Suite 112
Hoover, Alabama 35244
Phone: (205) 985-7267
susan@dentalboard.org

Attorneys for Defendants J. David Northcutt, III,
Bobby R. Wells, Stephen R. Stricklin, Thomas T.
Willis, Sam J. Citrano, Jr., William Chesser, and
Sandra Kay Alexander


CERTIFICATE OF SERVICE

I hereby certify that I have on this the 8
h
day of August, 2014, electronically filed the
foregoing pleading with the Clerk of the Court, using the AlaFile system, and that the Plaintiffs will
be served electronically through same.

Paul M. Sherman (DC Bar No. 978663)
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203-1854
Email: psherman@ij.org

Arif Panju (TX Bar No. 24070380)
Institute for Justice
816 Congress Avenue, Suite 960
Austin, TX 78701
Email: apanju@ij.org

Charles B. Paterson (AL Bar No. ASB-1542-r73c)
Balch & Bingham, LLP
1901 Sixth Avenue North, Suite 1500
Birmingham, AL 35203-4642
Email: cpaterson@balch.com


/s/ Luther M. Dorr, Jr.
Of Counsel