CNN commentator Fareed Zakaria may be out of his element when considering the tooth whitening case that the Supreme Court will consider when it returns from its recess in October. Zakaria gets sidetracked onto the only tangentially-related issue of licensing and as a result fails to consider the essential question at the heart of the case, whether dentists have the right to determine what is or is not dentistry, and whether people without a license should be allowed to practice dentistry.
The case stems from actions that the North Carolina State Board of Dental Examiners undertook in 2010, when it sent letters threatening legal action against any non-dentists who were performing tooth whitening in North Carolina. In 2011, the Federal Trade Commission (FTC) concluded that this was an illegal action when it sent out “Cease and desist” letters against tooth whiteners in North Carolina who were not licensed as dentists.
The North Carolina State Board of Dental Examiners sued the FTC and currently the case is waiting to be considered by the US Supreme Court to determine whether the Board overstepped its authority.
Zakaria’s commentary focuses on the issue of licensing run rampant. According to him, the impact of this case will be to determine whether all manner of professions need to be licensed in order to perform their craft. Zakaria starts by pointing out that the proportion of professions that must have a state license to practice has expanded from 5% in the 1950s to more than 30% today. He rails against the licensing requirements for florists, wigmakers, and cosmetologists. He points out that licensing may increase the salary of the licensed professional by 18%, and that the increased salary is passed on to the consumer. (Though, with US wages stagnant, who would blame people who want to get some advantage that would allow them to increase their income. Zakaria points out that licensing creates barriers for lower-income people, which is true, but he doesn’t note that the increased wages of a licensed profession are more likely to help people break the cycle of poverty.)
But Zakaria’s argument falls apart when we remember that we’re not actually talking about cosmetic dentistry, not flower arranging, and that there may be real health consequences for allowing non-dentists to perform the procedure.
No matter what people may try to make this case about, the key issue in this tooth whitening case is whether the state board of dentistry should be allowed to define its profession (including, for example, whether BOTOX ® Cosmetic is part of dentistry) and determine when people need to be licensed to practice it.
tooth whitening is a safe procedure when properly used, but when improperly used it can lead to changes in the tooth enamel. These dangers are magnified when using the strong whitening compounds that are intended for use by dentists. Are we prepared to trust that people who are not licensed dentists will have the ability to recognize these problems as they develop, and the scruples to turn away paying customers to prevent them?
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