Open any glossy magazine these days and you are likely to see a high profile celebrity smiling at you with a sparkly white smile. However, professional tooth whitening treatments are no longer the preserve of the rich and famous. As a popular and accessible cosmetic dental treatment, it has become widely available at many dental practices across the UK.

The General Dental Council (GDC) has stated that only registered dentists are permitted to apply materials and carry out procedures designed to improve the aesthetic appearance of teeth, since this amounts to the practice of dentistry. So too does the giving of clinical advice about such procedures. This form of dental practice is not within the list of permitted duties which dental hygienists and therapists can legally carry out and the Council reiterates that anyone who practises dentistry illegally risks being prosecuted by the GDC in the criminal courts.

Whiteners are cosmetics

Tooth whitening treatments are no longer the preserve of the rich and famous

The House of Lords ruled in June 2001 that tooth whitening agents were covered by the EU Cosmetics Directive, and not by the Medical Devices Directive. This means that it is a criminal offence to supply products with more than 0.1% hydrogen peroxide or compounds that release it – tooth whitening agents typically contain 3.6% hydrogen peroxide.

The 'supply' of such products includes 'offering to supply, agreeing to supply, exposing for supply and possessing for supply and selling, hiring out or lending the goods;... the performance of any contract for work and materials to furnish the goods'. While these definitions have not been tested in relation to tooth whiteners, the BDA's legal advice is that a dentist applying tooth whitening products in exchange for payment would be likely to be selling and therefore supplying the products.

The penalties for illegal supply are up to six months in prison, a fine of up to GBP 5,000 or both. It would be up to local trading standards officers (TSO) to bring a case against a dentist to court. However, The Department of Trade and Industry has advised a low-key approach to the issue. But, given the high profile of tooth whitening, a local TSO might become interested in the supply were a patient to complain to it about any other aspect of the practice – pricing, for example.

Unmarked products

The BDA says that following the House of Lords ruling, unmarked products containing 3.6% hydrogen peroxide have been supplied to dentists without instructions or indications so that dentists could in turn supply the products to patients. But if the dentist's intended purpose for the product is for tooth whitening use, that use is still covered by the cosmetics regulations. The dentist is therefore supplying the product under the regulations and so is caught by the prohibition. The Department for Trade and Industry has also emphasised that it is the product's intended purpose (intended by the supplier) which determines its classification, not the method or area of application.

What is the BDA doing?

The BDA has worked closely with the relevant government bodies to try to get the supply of tooth whitening products on the agenda of the European Commission advisory groups, in order to get the rules changed. Moves to change the current position are being discussed but the BDA said it did not know if and when any change might occur. The Department of Health has informed dentists that it would not seek to interfere with a dentist's therapeutic decision to use a bleaching technique where a dentist considers this to be in the best interests of the patient's overall oral health care. (For whitening, bleaching techniques are preferable to the more invasive option of veneers, for example.) Dentists must be aware that it is nevertheless up to the discretion of individual trading standards officers to consider prosecution for the supply of illegal products.

What are dentists doing?

It would be up to local trading standards officers (TSO) to bring a case against a dentist to court.

Dentists make their own decisions about whether to use these products, bearing in mind the risks and benefits. Dental insurers advise caution, pointing out that a successful defence of any dentist facing a prosecution may prove difficult.

What is the GDC doing?

The GDC does not prosecute dentists or anyone else in the criminal courts for breach of the cosmetics regulations, local trading standards officers are responsible for the enforcement of the cosmetics regulations. It adds that trading standards has advised officers to take a 'low-key' approach to the enforcement of the cosmetics regulations, because they and the Department of Trade and Industry recognise that the current legal limit is much too low, and this is widely recognised by member states of the European Union.

All queries about prosecution policy should be directed to your local trading standards office. Where any dentist is convicted of a criminal offence, the GDC is told about the conviction and investigates whether the conviction should affect the dentist's right to treat patients.

The GDC believes that the present situation is very unsatisfactory for both patients and practitioners but cannot offer immunity from prosecution by trading standards officers, and in relation to GDC procedures would deal fully with complaints received from patients and with any reports of convictions. It can confirm that in the absence of a conviction it would not initiate disciplinary action solely on the basis that a product was used which contravened the Cosmetics Regulations. However, it adds that if the use of a particular product went beyond that, and raised an issue of professional standards or conduct, the GDC would investigate that thoroughly.

For more information visit www.bda.org or www.gdc-uk.org