Judge supports teeth whiteners, with some limits

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HARTFORD, Conn. (AP) — A federal judge has backed a teeth-whitening business in its fight with Connecticut over rules that made it illegal for people who are not dentists to provide certain procedures.

U.S. District Judge Michael Shea in Hartford also ruled Friday in the 2011 lawsuit that the state may limit to dentists the practice of positioning a light in front of a customer's mouth, which activates the peroxide used to whiten teeth.

The decision allows two business owners to start up again, though their firm has racked up hundreds of thousands of dollars in losses since being shut by the state. The ruling allows the businesses to provide LED lights, but customers must position them for themselves.

"The state was wrong," said Taso Kariofyllis, co-owner of Sensational Smiles, which operated in two shopping malls before the state ordered the business to close because the two owners are not dentists. "What they did was unconstitutional."

State Attorney General George Jepsen had loosened several rules governing the selling of whitening products before the ruling. Customers could receive manufacturers' instructions, a place to use and dispose of the product, use a shade guide to demonstrate the shade of teeth and have a light available with a self-administered whitening product at the business site.

A spokeswoman said Monday that Jepsen believes the court properly found that Kariofyllis and his business partner "did not meet their burden in establishing that the ruling was unconstitutional."

Paul Sherman, a lawyer for the Institute for Justice, the public interest law firm that sued, said he will appeal the portion of the decision preventing people who aren't dentists from positioning lights in front of a customer's mouth.

The Institute for Justice, based in Arlington, Va., sought to overturn Connecticut's regulations it says promoted a monopoly for dentists. A non-dentist who offers some whitening services can face a felony charge, up to five years in jail or $25,000 in fines, the firm said.

Sherman said at least 30 states are trying to license teeth whitening businesses, not because of complaints from consumers, but to protect dentists "from honest competition."

The U.S. Supreme Court decided on March 3 to examine the North Carolina dental regulatory board's claim that only dentists should be allowed to whiten teeth.

The Federal Trade Commission said the state board engaged in unfair competition in the market for teeth-whitening services by shutting down businesses such as day spas and tanning booths that offered the service. The board sued the FTC in 2011, saying the agency overstepped its authority.

A federal appeals court in Richmond, Va., sided with the FTC.

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