BIRMINGHAM, Alabama – A Jefferson County judge heard arguments this morning on whether she should declare Alabama's ban on teeth whitening services provided by non-dentists unconstitutional or dismiss the lawsuit that challenges the law.

Jefferson County Circuit Judge Elisabeth A. French did not say when she might rule after a 30-minute hearing in the lawsuit filed last year by Keith Westphal, of North Carolina, and Joyce Wilson, of Guntersville.

The lawsuit challenges the constitutionality of the Alabama Dental Practice Act, which requires a person to be a licensed dentist if they offer teeth-whitening services. Violation of the law could mean up to a year in jail and $5,000 in fines.

The lawsuit argues the Alabama law is overly broad, is in violation of due process, and unreasonably favors dentists. French had previously allowed the lawsuit to continue.

Westphal and Wilson are represented by the Arlington, Va.-based Institute for Justice, a nonprofit law firm that describes itself as a "civil liberties law firm."

Paul Sherman, senior attorney with the Institute, told the judge today that not a single person has been identified who has been injured due to teeth whitening services, so it is an unreasonable, irrational and unconstitutional law. The harm is remote, he said, and the law protects the business of dentists who offer the services at a much higher rate than non-dentists.

Wilson, who is now in her 70s, stopped selling and offering instructions to customers on the teeth whitening equipment she sold after receiving a cease and desist letter from the state's dental board. She is still selling equipment, but only out of state, he said.

Westphal wants to expand his business, which offers teeth whitening services, to Alabama, Sherman said.

Rusty Dorr, attorney for dentists, told the judge that there is at a minimum uncertainty about the safety of teeth-whitening and so the law should stand. Just because there are no complaints, "doesn't mean there isn't a threat of harm," he said.

Dorr said that some of the non-dentist businesses offering the teeth-whitening services have rooms and equipment that makes it look like a dentist office and the workers wear smocks and protective glasses and gloves.

On Aug. 8 attorneys for the dental board filed a motion for summary judgment – a request to rule in their favor and dismiss the lawsuit without a trial because they say all the evidence the judge needs has already submitted in the case. French set the hearing for today.

"The plaintiffs (Westphal and Wilson) bear a heavy burden to demonstrate that the Alabama Dental Practice Act's restrictions on teeth-whitening services are not constitutional," according to the motion for summary judgment. "The factual record before this Court demonstrates that the commercial whitening of teeth is an activity that involves health and safety concerns that are appropriate for governmental regulation. The factual record before this court demonstrates that summary judgment should be entered in favor of the Dental Board."

Sherman and other attorneys for Westphal and Wilson responded in briefs submitted on Tuesday and asked for summary judgment in their favor.

"The Dental Board's motion for summary judgment should be denied because Alabama's requirement that plaintiffs become fully licensed dentists before they may lawfully sell over-the-counter teeth-whitening products that customers apply to their own teeth is wildly disproportionate to the minimal risks associated with teeth whitening," according to Westphal and Wilson's response. "Literally millions of people worldwide have safely whitened their teeth with products identical to those sold by Plaintiffs. Indeed, under Alabama law, it is perfectly legal for anyone, even a child, to purchase products identical to those sold by Plaintiffs and apply those products to their own teeth at home with no prescription, no supervision, and no instruction."

"And although the use of these products, like the use of many cosmetic products, carries some minimal risks, the Dental Board's own expert concedes that these risks are identical whether a person applies teeth-whitening products to their own teeth at home, which is legal, or applies those products to their own teeth at a mall or salon, in which case the person who sold those products is guilty of a crime and can be jailed for up to a year," according to the Westphal and Wilson response.

Alabama has between 2,500 and 2,600 dentists, but the dental board does not track how many of those offer teeth whitening services or require specific training, said Susan Franklin Wilhelm, Board Administrator and Executive Director for the Alabama Board of Dental Examiners. But dentists are generally required in any service they offer to have the proper training, she said.

Wilhelm, in an email to AL.com, stated that the Dental Board was created by the Legislature to protect the health, safety, and welfare of the public through the regulation of the practice of dentistry and dental hygiene in the State of Alabama. "The provisions of the Dental Practice Act, as set by the Legislature, help assure the people of our state that, when seeking dental treatment, licensed healthcare professionals have achieved the appropriate education, training, and experience," she wrote.

Sherman, after the hearing, said after the hearing that the state law was designed to protect dentists from competition.

Consumers can buy teeth-whitening products and apply it themselves without violating the law, Sherman said. But a business person can be guilty of the state law simply by instructing or offering a place for a customer to apply it themselves, he said.

Next month the U.S. Supreme Court is expected to hear arguments in a North Carolina anti-trust case involving that state's dental board sending out cease and desist letters to teeth-whitening, Sherman said.

Besides the Alabama lawsuit, there also are also lawsuits in federal courts in Georgia and Connecticut challenging the constitutionality of similar laws, Sherman said.

The Alabama Supreme Court has previously ruled that teeth whitening does fall within the practice of dentistry, Sherman said. But that ruling did not address whether the act was constitutional, he said.

Nationwide, about 30 states have taken actions to regulate non-dental teeth whitening services, Sherman said.

Teeth-whitening is emblematic of an increase over the past half century of states requiring licensing to perform certain jobs, Sherman said. He cited African hair braiding and equine massage services as examples.

Updated at 11:40 a.m. Sept. 4 with additional information and comments from attorney