Tooth Whitening Wars in North Carolina: Is Your State Next?

The FTC and Teeth Whitening Wars in North CarolinaIn North Carolina, tooth-whitening services can be administered by non-dentists in hair salons, retail stores, and at kiosks in shopping malls.

And the FTC in North Carolina believes a dentist doesn’t need to be present.

In 2010 the North Carolina State Board of Dental Examiners attempted to reign in the non-dentists by sending out 42 letters notifying tooth-whitening providers that they were illegally practicing dentistry and ordered them to stop.

As reported by, the U.S. Federal Trade Commission (FTC) then initiated an action against the North Carolina dental board, alleging that the board violated federal law in their attempts to block non-dentists from providing tooth-whitening services.

In February 2011, the dental board retaliated by filing a lawsuit against the FTC, accusing the commission of violating the U.S. Constitution in its attempts to keep the North Carolina State Board of Dental Examiners from regulating tooth-whitening services being offered by non-dentists.

A FTC judge fired back by denying the dental board’s motion to dismiss the FTC’s complaint and unanimously rejected the argument that the state action doctrine exempts it from antitrust scrutiny under the Federal Trade Commission Act.

The FTC judge further ruled that the North Carolina State Dental board’s efforts to block non-dentists from dispensing whitening services constitutes an illegal anti-competitive conspiracy.

In an email to, Board attorney Noel Allen writes, “If a clear state statute, a century of court precedents, and the United States Constitution no longer allow the state of North Carolina, acting through its General Assembly, to define the practice of dentistry to protect our citizens from the illegal and unsafe practice of dentistry, then it should be the Congress or the U.S. Supreme Court that pronounces the death of that state right. The decision should not come from the FTC acting on its own initiative, without even so much as internal rule to support it.”

The North Carolina State Dental Board argues that they never tried to stifle competition and were only trying to protect the public from non-licensed dental treatments.

The battle between dentists and teeth-whitening providers is being fought in other states as well. Recently the Connecticut State Dental Commission ruled that tooth whitening is dentistry and can no longer be performed without a dentist present, while another judge ruled against the New Jersey Dental Association in their legal battle against a chain of tanning salons offering tooth-whitening services.

What are your thoughts? Do you think tooth-whitening services require a dental license?

For the entire story by see: FTC Judge Rules That NC Dental Board Acted Illegally

Years of Great Dental Marketing Erased When Dentist Sues Patient

Years of Great Dental Marketing Erased When Dentist Sues Patient No matter how many times The Wealthy Dentist points out that suing for a negative online review is just bad dental marketing, another case makes headlines.

Three weeks ago we reported on dentist, Mo Saleh, who was suing a former dental patient for $300,000 for damage to his reputation and loss of revenue stemming from what he felt was an inflammatory negative online review.

And just this week the judge in the case decided to throw the lawsuit out, stating that online comments made by the dental patient were free speech.

To prove that the dental patient was guily of libel, the dentist would have to establish that the statements made in the online review were false, that they caused the dentist harm, and were posted without proper research into the validity of the comments.

But if the online review is considered a statement of opinion about the dentist, as opposed to actual facts, then the dentist won’t get very far in a lawsuit for defamation, and here in California, as well as in Oregon, the law takes it one step further with Anti-SLAPP legislation.

California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. (The California Anti-SLAPP Project). The same is true on Oregon, where the dentist’s lawsuit was initiated.

According to KVAL news, Dr. Saleh may appeal the judges verdict, if he feels that the online review was meant to harm him and not simply to inform the public.

The Wealthy Dentist argues that Dr. Saleh’s money would be better spent initiating a new dental marketing campaign targeted at showcasing what his dental practice has to offer and bringing in new dental patients.

Most of the general public is beginning to look at negative online reviews with some skepticism because of many of the outlandish comments reviewers have made. Someone looking for a local dentist may see the negative review, but will also read the positive reviews, and probably ask a few people they know in the community for a recommendation.

They most likely won’t make their decision based on one reviewer’s comments, and if a dental patient did decide on a dentist based on just one review, then a dentist might not want them as a dental patient.

But a dentist can do more damage to their reputation themselves and erase years of great dental marketing by engaging in litigation with a dental patient who has written a poor review of their dental practice.

Instead, spend that money on making your dental practice the best practice in town.

Would you sue for a negative online review?

For more on this story see: Judge Stops Lawsuit Dentist Filed Against Patient Over Yelp Review 

Would BMI Sue Dentists for Playing Music During Dental Treatments?

Would BMI Sue Dentists for Playing Music During Dental Treatment?Last week in dental news, the EU’s top court ruled that dentists who have music playing during their surgeries should not pay royalties because they are not broadcasting to the public.

The ruling stems from a case brought against a Turin dentist by an Italian agency that collects music royalties.

They argued that the dentist was violating international agreements by broadcasting the copyright-protected works to the public during oral surgery, and as such were liable to pay royalties to the artists.

The European Court of Justice disagreed, citing that the dentist was not broadcasting music for profit and the audience was limited.

But is the same true for dentists here in the U.S.?

In the U.S. the laws covering music copyright are outlined in the 1976 Copyright Act, the Digital Performance Right in Sound Recordings Act (DPRSR) of 1995, the Digital Millennium Copyright Act (DMCA) of 1999, and the Copyright Term Extension Act containing the Fairness in Music Licensing Act (FMLA) of 1998. There also international agreements covering music under The Berne Convention.

When you play, perform, or record music that you did not create, you are often subject to certain copyright laws.

The few exceptions to copyright law fall under “public domain rights” where the composer has been dead for more than a certain number of years, or the copyright has expired. This is often the case for most classical and traditional music from all around the world.

However, the Fairness in Music Licensing Act of 1998, also known as the “Sony Bono Act,” (of Sony & Cher fame) adjusted the copyright concerning public domain rights to include works published in the U.S. in 1922 or earlier.  This law also allowed bars, restaurants, and cafes to play the radio and show television programing in the public domain, but not recorded music. There are also square-footage constraints and limits to the number of speakers used included in this change to public domain use.

Is this confusing or what?

The simplified version is if music or lyrics are created in the U.S. and fall under copyright protection, then a dentist (or anyone) cannot

  • make a imitative arrangement for public use in any form
  • reproduce the music or lyrics
  • perform the music or lyrics in public
  • distribute the music or lyrics for free — or for profit
  • play a recording of the music or lyrics in public (even if you own the CD or have purchased the song and downloaded it to your computer or phone)

Where does leave you, as U.S. dentist or your patients, want to listen to music during dental treatment?

In the U.S., the dentist performing dental treatment could technically play the radio, listen to the television (would you really want a TV on in the background while performing treatment?) or only play music that falls under the public domain rights as long as he or she is not performing the treatment in front of others or taping it for upload to the Internet for viewing.

The dentist could make a strong argument that listening to personal music from a CD, or iPhone with speakers during surgery does not constitute a public performance because the dental patient is possibly sedated, but would a dentist want to spend the time or the money involved to defend such a position if questioned?

And what if the music from the dentist’s sound system happens to be located in a dental practice location where sound easily travels next door to a space that is occupied by the public and does fall under music copyright restrictions?

These are the murky waters a business owner ventures into when using copyrighted music in a public space, even when that public space may only be occupied by a dentist, some dental staff and a partially or fully anesthetized dental patient.

The three major music rights management companies are BMI, ASCAP, and SESAC and they represent songwriter’s interests and help enforce songwriter’s performance rights. These companies issue public use licensing agreements and monitor businesses to uncover possible copyright infringement of their members’ songs and music.

They are famous for monitoring public spaces and sending cease and desist letters to small business owners.

The best procedure for dentists looking to play music at their dental practice (regardless of the situation) should be to pay licensing rights for copyright-protected music when used, or stick with music limited to use in the public domain.

It’s cheaper than paying an attorney in the future.


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