UK Teeth Whitening Law – The FACTS Posted on October 2, 2014, by

Read a Few Articles From A GDC Perspective & Wondering Can You Still Offer Teeth Whitening?

The General Dental Council (GDC) tries to scare people into stopping you offer teeth whitening? However if you knew they were lying would this not make you angry, them stopping you from making an honest living to grow your business and support your family?

Well ever since teeth whitening treatments became popular in the UK in the mid noughties, there has been a debate over whether this is the exclusive “right” of dentists or can anyone perform the treatments! Well this debate got a bit more heated last May with the High Court Ruling “GDC versus Lorna Jamous” case.

A lot of information in the media and that generally easily accessible to the general public is unfortunately from a GDC perspective. Not surprising really, they’ve been around for some time so got a great network of contacts and lots of dental professionals pay them juicy subscription fees every year to help fight their corner! Whereas us non-dentists in the beauty and cosmetic world don’t!

This puts us at a massive disadvantage and why we thought this article was very much needed to give you the facts so that you don’t feel intimidated next time some jumped up dental nurse threatens to report you for doing nothing wrong!

The first thing you’re probably thinking is why do they hate us so much and want to destroy our livelihood that we have worked so hard to build up! Well it’s not the obvious of money, rather surprisingly. We all know a “laser” teeth whitening treatment at a dental surgery costs between £500 – £800 whereas the similar looking (from an outsiders perspective) treatment at a beauty salon costs between £59 and £199.

No its pride and ego, much to my surprise. These dentists think they are above us and we are little more than dirt on their shoes! That may shock some of you but unfortunately that’s the reality of the situation. How dare we offer teeth whitening when “they” have been to dental school for 5 years.

Well I am sorry Mr Dentist, cosmetic teeth whitening is a very straight forward procedure and no-where near as complex as they like to make out. At this point they come in with some big words to scare the public and media, but if anyone should know, I should as I have trained hundreds of people in teeth whitening over the years and as long as you are careful and thorough, everything will go fine (and don’t step over into dentistry)!

The Facts & European Law

Ok so here’s the first law to be aware of. The European Cosmetic Directive, 31st October 2012. This clearly states that:

 No treatment which contains or releases more than 6% hydrogen peroxide must not be used even if a dentist (unless for other justified reasons).

 Any teeth whitening treatment containing between 0.1% – 6% hydrogen peroxide can only be sold by dental practitioners, or under their prescription. Over 18’s only. Plus a thorough clinical examination must be carried out first. Therefore DENTAL TEETH WHITENING.

 Products which contain less than 0.1% hydrogen peroxide which are freely available for consumers to purchase and have been classified as ‘safe’. For eg whitening products, toothpastes, mouth washes etc. Whereas this is COSMETIC TEETH WHITENING.

The location of the treatment is not of importance in differentiating between a “Dental” or “Cosmetic” teeth whitening procedure. For eg if a treatment is performed mobile in someone’s home by a dentist using Hydrogen peroxide 6% (not sure GDC regulations would allow a home treatment but this serves the example well) this would be a “Dental” Teeth Whitening treatments as opposed to a treatment using Sodium Bicarbonate (which releases less than 0.1% Hydrogen Peroxide) at dental surgery, would be classed as “Cosmetic” Teeth Whitening.

So that’s pretty clear cut would you not agree? Just in case you’re still not sure, here it is again:

“Concentrations of less than 0.1% hydrogen peroxide present or released in oral products, including mouth rinse, tooth paste and tooth whitening or bleaching products are safe and will continue to be freely available on the market.”

However the GDC won’t have you believe that clearly defined European law (that also supersedes UK law, why I don’t understand but in this aspect works well for us Cosmetic Teeth Whiteners, so am not complaining).

So according to the GDC only a qualified dental practitioner should use these safe products as defined by the EU Cosmetic Directive, in fact again to quote the European Commission as ‘safe’ and made ‘freely available’.

The GDC also refuse to acknowledge, the House of Lords 2001 classification of teeth whitening products as ‘cosmetic’ AND the 2012 ruling by the European Commission which AGAIN confirmed this. In both cases, teeth whitening was deemed to NOT meet the criteria for a medical device and is therefore subject to the EU Cosmetics Directive.

Some More Hard Evidence, Facts & Laws

We can take this step one further and refer to yet again another piece of cosmetic legislation, The Cosmetics Products Safety Regulations 2008 which described six key functions:
• Clean
• Perfume
• Change appearance
• Correct body odour
• Protect
• Keep in good condition
If the main purpose of the product is not to perform one of these functions it is unlikely to be a cosmetic.

Site of application is also of critical importance in determining cosmetic of medical, the following are deemed to be “cosmetic”:
• Epidermis (top layer of skin)
• Hair system
• Nails
• Lips
• External genital organs
• Teeth
• Mucous membrane of the oral cavity
If it is not, the product is unlikely to be a cosmetic.

So let’s recap this, The House of Lords ruling 2001 states that Teeth Whitening Treatment is COSMETIC, The European Directive 2012 states that Teeth Whitening Treatment is COSMETIC and The Cosmetic Products Safety Regulations 2008 states that Teeth Whitening Treatment is COSMETIC

While we’re firmly burying that nail into the GDCs coffin, lets also quote The EU Commission again, who go on to say that these same types of cosmetic whitening products can be:

‘ freely placed on the market and can be readily available to consumers. The Directive does not impose restrictions on the training of people who would use these products. Consumers themselves can apply these products as well as dentists or others’.

According to the EU Commission, a dental practitioner is only required to supervise or administer whitening products where the hydrogen peroxide content is greater than 0.1%. Any product with less than 0.1% hydrogen peroxide can be used by anyone, even at home, and therefore NO restrictions on this.

However, quite astonishingly, almost like a “child” who refuses to accept that 2+2 DOES equal 4 and NOT 9, the General Dental Council has refused to accept the Directive and are actively prosecuting Cosmetic Teeth Whiteners” who are offering teeth whitening treatments containing less than 0.1% hydrogen peroxide and within in EU law.

It is therefore they who are breaking the law! This should not be allowed by the government, no more than gangsters should be able to run protection rackets and intimidate and scare people for “protection money”. The GDC are intimidating and scaring law abiding citizens but instead of guns and violence, they are using the courts, making threats and throwing their weight around.
So How can the General Dental Council Get Away With This?

Even though the EU Directive is perfectly clear and must be adopted by all member states. The GDC is relying on very old law, in fact over 30 years ago old, who do you know was having their teeth whitened 30 years ago, point made yeh!

The Dentist’s Act 1984 states the type of procedures which fall under the practice of dentistry included in section 37, namely:

‘…the giving of any such treatment, advice or attendance as is usually performed or given by dentists; and any person who performs any operation or gives any treatment, advice or attendance on or to any person as preparatory to or for the purpose of or in connection with the fitting, insertion or fixing of dentures, artificial teeth or other dental appliances shall be deemed to have practiced dentistry within the meaning of this Act.’

Also of interest from the Dentist’s Act, section 38:
‘A person who is not a registered dentist, a visiting ECC practitioner entered in the list of such practitioners, or registered medical practitioner shall not practice or hold himself out, whether directly and by implication, as practicing or as being prepared to practice dentistry.’

Yet we never describe what we do as dentistry or dental treatments! In fact quite the opposite, we also make it very obvious its “COSMETIC TEETH WHITENING” and the go onto further say it’s NOT a dental procedure.

Even with all this said and done, The GDC has defended its aggressive stance with this statement:
‘Where an individual is not registered with the GDC they are not entitled to provide tooth whitening as tooth whitening falls within the definitions of practice of dentistry under sections 37 and 38 of the Dentists Act. The GDC will continue to prosecute individuals who carry out tooth whitening illegally under the Dentists Act 1984.’

Which in blunt terms means that any person who offer teeth whitening treatments – whether or not below 0.1% Hydrogen Peroxide, will be a target of the GDC. DESPITE the fact that the EU Directive clearly states otherwise.

Where it gets confusing…

Until May 2013, the GDC’s bark was a lot worse than their bite, quite frankly they were an irritating noise that could be ignored.

Where it got confusing was the Lorna Jamous case, a beautician who offered Cosmetic Teeth Whitening treatments using products with less than 0.1% hydrogen peroxide, ie compliance with the European Directive. She initially won her case when the GDC tried prosecuting her in December 2012 and was found not guilty by the Magistrates Court.

You would think it would stop here, surely but no not the GDC! So they appealed and in May 2013, Ms Jamous was found guilty by Lord Justice Moses. However, the guilty verdict centred on whether teeth whitening was a treatment ‘usually’ administered by dentists and even Lord Justice Moses admitted there is significant ambiguity around the subject!

We Fight Back and where it gets really interesting!

This is where it gets really good for us and I still can’t believe with a few cases now, no-one has thought of this before:
When has anyone heard of a dentist whitening teeth with Sodium Bicarbonate? Exactly NEVER (there maybe the odd one off out there doing it to promote some companies products for a PR campaign and paid to put his name to it, that is quietly left out of the article!).

So if a dentist NEVER performs a treatment with sodium bicarbonate, this means that it can’t be dentistry if that profession never performs such a procedure. When have you ever heard of a dentist flying a Virgin Atlantic Boeing 747 from Heathrow to JFK New York? Never, exactly so would you say that flying a plan is dentistry? Of course not, so using Sodium bicarbonate to whiten teeth in a cosmetic treatment is also not dentistry. Case closed.

Also very interestingly the GDC have not gone after any of the big players in the market with deep pockets to fight a legal battle, I know of a large American Teeth Whitening company who have threatened the GDC to take them on but the GDC have not done so. Why? You guessed it, they go after the little guy first, bully them as they know they will intimidate and scare that individual, knowing they will not fight back and will just plead guilty further strengthening their case!

Also their rather subjective interpretation of the Dentist’s Act has yet to be passed into law.

What Can You Do To Safe Guard Yourself?

Investigations are currently underway by the European Commission but until they have issued their ruling, any individual in the UK who offers cosmetic teeth whitening treatments could find themselves a victim of the GDC.

This means facing prosecution for offering a treatment that any consumer can purchase off the shelf and apply themselves at home.

But wait, if you are not comfortable with the clear cut facts detailed above, we have another option.

Self-Administered Treatments…

Yes you heard correctly, so you got all the equipment and treatment packs and if you’re uncomfortable with the above risks even though you ARE within the law, this allows you to still bring in money offering teeth whitening just means you don’t actually do it anymore! So how does it work?

Well if we first go back and revisit the 1984 Dentistry Act, section 37 it states:

“the giving of any such treatment, advice or attendance as is usually performed or given by dentists”

The GDC have for some time struggled with the self-administered aspect of teeth whitening, in fact getting themselves into a bit of bother however they as always have come out with a pack of lies and intimidating stance as usual. They are now saying this is illegal if you provide the instructions on what to do!

Oh really, so someone applies everything themselves using your equipment which they “rent” from you and they purchase a treatment pack just like they would in Boots as this is still dentistry in their eyes! First off any judge would laugh them out of court but if they want to play silly games we can as well.

So this is what I would suggest:
1. Make it clear they are renting the equipment from you.
2. They make a separate purchase of the treatment pack from you.
3. You then provide them with a list of instruction so they can perform this themselves without any instruction from you (this is the advice bit under section 37 supposedly!).
4. Finally to be water tight you then leave the room so they can’t get you on the “attendance” bit. Simple.

Again I think a court would be in stitches if the GDC tried taking you to court under the “attendance” aspect of them doing everything themselves and your just in the same room! But I say why even give them the chance!

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