It is clear that the practice of tooth whitening is ‘the practice of dentistry’ and as such only registered dentists should undertake tooth whitening for patients. But what happens when a patient decides to bypass the dentist and obtain an over-the-counter tooth whitening kit?
I recently settled an unusual case on behalf of a client whom I shall call ‘Mr W’ from Norwich. Mr W came to me after being told by his own dentist that the tooth whitening kit that he was using at home had caused ‘extensive tooth enamel erosion in an uncommon pattern’. The erosion of my client’s lower teeth was so deep that it had reached the pulp chamber causing his teeth to become necrotic. The dentist said the cause of this tooth erosion was the use of a particular brand of over-the-counter tooth whitening kits which for the purpose of this article shall remain nameless.
The over-the-counter tooth whitening kit was freely available from a number of UK high street chemists and contained, amongst other things tooth whitening gel and a tooth whitening accelerator which both contained a number of active ingredients which it turns out contravened the cosmetic product legislation.Mr W said that he used the tooth whitening kit as he had been concerned about the effects of discolouration from smoking.
Claim
Dental notes and records were gathered and a letter of claim in accordance with the Court rules was sent to both the manufacturer of the tooth whitening kit and its distributor. The actual claim arose from the provisions of the UK Consumer Protection Act 1987 (CPA 1987), Section 2(1). This section imposes primae facie strict liability, that is, strict liability makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of culpability or fault. The claim surrounded allegations that the tooth whitening kit was defective and unsafe in accordance with the CPA legislation. A defective product under the CPA 1987 is defined as one where ‘the safety of a product is not such as persons generally are entitled to expect’. The Court would take into account the instructions and warnings that are given with any product.
Defect
It was alleged that the defect in the product related to a lack of clear instructions or guidelines on usage as follows:
- There were no warnings given either in the instructions or on the packaging that use of the tooth whitening product may cause tooth erosion;
- There was no warning given that the use of the tooth whitening product may cause tooth sensitivity
- There was no warning or guideline given about the number of times that the tooth whitening product could be safely used in the long term without causing either sensitivity or erosion.
It turns out that Mr W had been using the product for about three years. He used the product approximately one day, once a week, usually at night. It was argued that the instructions for usage contained in the packaging of the tooth whitening kit were not adequate. There were no adequate instructions on the amount of safe usage of the product.
Defendant’s response
The defendant manufacturer of the over-the-counter tooth whitening kit, a large US company, instructed their own independent UK insurers through city solicitors to deal with the claim. Mr W underwent, by agreement, an independent dental examination with one of the UK’s leading prosthodontists and specialists in restorative dentistry based in London. The expert instructed was one of the world’s leading authorities in tooth whitening.
Expert report
The defendant’s expert took extensive clinical photographs and after a thorough examination of Mr W, along with testing of the components of the tooth whitening kit, reported that the ph of the entire tooth whitening kit components had an acidic reading with a ph of 3. The defendant’s expert concluded that with a ph as low as 3, it was likely that the kit had caused long-term acid damage to Mr W’s teeth.
The expert went on to say that the whitening kit was not recommended as safe to use for over-the-counter sales and that there was no published research in the dental literature to show that the particular tooth whitening kit in question was safe for patients to use. Mr W attended his own dental expert for reporting purposes and a consultant in restorative dentistry and endodontics based at the Queen’s Medical Centre in Nottingham was instructed. Mr W’s expert concluded that the appearance and pattern of wear on his teeth were consistent with chemical dissolution of the tooth structure related to acid erosion.
Condition and prognosis
The prognosis for Mr W was poor. It was argued that the best long-term treatment plan would be extraction of the affected anterior teeth and provision of an implant supported bridge.
Result
After an extensive legal argument, the defendants finally accepted liability and made an offer to settle Mr W’s claim for £20K for general damages for pain, suffering and loss of amenity and special damages (out of pocket expenses) plus his legal costs, which was accepted.
The case of Mr W is a prime example of what can happen when using an over-the-counter tooth whitening kit without clear instructions as to safe usage in breach of the Consumer Protection Act 1987. There is a clear duty on the manufacturer of over-the-counter tooth whitening kits to provide adequate and clear instructions on how to use their product along with adequate warnings of the dangers associated with using their products.
The General Dental Council believes that it is illegal for non-dental professionals to be offering tooth whitening treatment, and that only dentists, and dental hygienists and dental therapists on the prescription of a dentist, can carry out the procedure.
Does this open the doors for an argument that all over-the-counter tooth whitening kits should be removed from the shelves as a danger to the purchaser?
Probably not, but dentists should be aware that patients may bypass their clinical advice on tooth whitening. They should keep a watchful eye on irregular erosion patterns which this case has shown can be caused by the use of over-the-counter tooth whitening kits.