Court: Court of Appeals for the Second Circuit; July 17, 2015; Federal Appellate Court
Judge DRONEY concurs in a separate opinion. Circuit Judge GUIDO CALABRESI addresses the constitutionality of a Connecticut rule allowing only licensed dentists to perform certain teeth-whitening procedures under the Due Process and Equal Protection Clauses. The court affirms the District Court’s judgment, concluding that multiple rational grounds support the rule.
The Connecticut State Dental Commission, responsible for dental regulations under Conn. Gen. Stat. 20-103a(a), issued a ruling on June 8, 2011, permitting only licensed dentists to conduct specific teeth-whitening procedures. Following this, the Connecticut State Department of Public Health warned Sensational Smiles, a non-dentist teeth-whitening business, to stop its services or face legal action. Sensational Smiles challenged the rule, arguing it violated the Equal Protection and Due Process Clauses by lacking a rational relationship with the government’s interest in public oral health. The District Court rejected these claims and granted summary judgment in favor of the defendants.
In reviewing the summary judgment de novo, the court applies rational-basis review to the constitutional claims, which do not involve fundamental rights or suspect classifications. The court emphasizes that a statute can be upheld if any conceivable rational basis exists for it. The protection of public oral health is acknowledged as a legitimate government interest, although there is contention regarding the rule's rational relation to this interest. The court agrees with the District Court that a rational basis exists for prohibiting non-dentists from using LED lights in teeth-whitening procedures.
Expert testimony presented to the Commission indicated potential health risks associated with using LED lights in conjunction with teeth-whitening gels. Although Sensational Smiles challenges this evidence, courts are not tasked with evaluating the State’s choice to accept certain disputed evidence. Sensational Smiles contends that there is no logical basis for restricting LED light usage to licensed dentists, arguing that dentists lack training in LED light application and teeth whitening. However, the Commission may have reasonably determined that dentists are better equipped to handle any adverse reactions (like sensitivity or burning) that might occur during procedures, as they possess the necessary diagnostic skills to assess individual patient needs, especially when distinguishing between pathological and non-pathological tooth discoloration.
Sensational Smiles also argues the rule is irrational since it permits consumers to use LED lights on themselves after receiving instruction from unlicensed professionals, while prohibiting those professionals from assisting. However, the law does not require perfect regulation, as individuals can often perform actions on themselves that they cannot do for others without a license. The Commission’s regulation, therefore, reflects a reasonable response to potential health risks associated with LED lights, fulfilling its duty to protect public health without violating due process or equal protection.
The appellant, alongside Professor Todd J. Zywicki, argues that the true intent behind the Commission’s regulation is to protect the economic interests of licensed dentists in Connecticut, suggesting it serves as a form of economic protectionism. This concern reflects a significant issue, particularly in light of the ruling in North Carolina State Board of Dental Examiners v. FTC, which ruled that regulatory boards must be sufficiently state-controlled to claim antitrust immunity. Recent appellate court decisions indicate that regulations primarily aimed at shielding specific groups from competition may not withstand rational basis scrutiny.
Economic protectionism for a particular industry is generally not considered a legitimate governmental purpose, as established in cases like St. Joseph Abbey v. Castille and Merrifield v. Lockyer. The principle that protecting a specific interest group from competition lacks legitimacy is supported by decisions such as Craigmiles v. Giles. However, the Tenth Circuit has ruled that intrastate economic protectionism can constitute a legitimate state interest, as seen in Powers v. Harris. This perspective is adopted here, recognizing that economic favoritism can be deemed rational under the Fourteenth Amendment, even if the legislature's motives are not explicitly articulated.
The Supreme Court has historically allowed state economic favoritism, provided it does not contravene specific constitutional provisions or federal laws. Notable cases affirming this include Fitzgerald v. Racing Association of Central Iowa, which upheld a tax scheme favoring riverboat gambling, and Nordlinger v. Hahn, which supported a property tax scheme favoring long-term property owners. The Court's rulings suggest that states often favor certain economic groups, reflecting political realities rather than judicial opinions on their wisdom.
Furthermore, it is suggested that a potential rationale for regulations, such as those affecting teeth whitening services, could be to subsidize essential dental services provided by licensed professionals. Ultimately, the interpretation of the Fourteenth Amendment should not undermine state sovereignty in regulating economic matters, as emphasized by Justice Holmes's dissent in Lochner v. New York, which cautioned against overly restrictive interpretations.
The document asserts that the federal courts do not endorse specific economic theories, such as the Fabianism of Sidney and Beatrice Webb, and emphasizes that the determination of economic policy is the prerogative of state legislatures. It highlights the challenge of differentiating between protectionist motives and legitimate public interests, noting that both can coexist without clear standards for acceptable protectionism. The text references the Lochner case as an example of potentially flawed economic regulation, suggesting that it may have functioned to benefit certain economic interests under the guise of health regulation.
It stresses that if state actions favoring specific economic interests violate federal law, they would be subject to the Supremacy Clause, including violations of the dormant Commerce Clause or the Sherman Act regarding monopolies. The court clarifies that it is not addressing the applicability of antitrust laws in this instance, focusing instead on the constitutionally valid rationale for the Commission’s rule favoring licensed dentists over unlicensed teeth whiteners.
The excerpt concludes with a summary of a teeth-whitening process involving an LED light and references expert testimony regarding potential risks associated with such treatments. It further discusses the concept of rent-seeking in public choice economics, indicating that proposals may often be driven by interest-group motivations rather than genuine public welfare. Lastly, it distinguishes the current matter from the Metro. Life Ins. Co. v. Ward case, explaining that Ward's context of out-of-state discrimination does not apply to intrastate economic regulation. The judgment of the District Court is affirmed.
