Illegal teeth whitening In this feature l product safety l celebrity promotion l the law DIY – not the white way to do it All of the teeth- whitening gels submitted for analysis were found to be non- compliant, either because of excessive levels of peroxide – the highest we found was 8.1 per cent – or labelling issues Why is it dangerous for consumers to receive teeth-whitening treatments from beauticians? Teeth-whitening gels contain 80 times the maximum permitted level of hydrogen peroxide and are being applied by unqualified and uninsured people. The term ‘illegal teeth whitening’ is often used to describe two separate – but closely linked – issues. The first is whether the person carrying out the procedure is qualified to do so, and is registered with the General Dental Council (GDC). The second is whether the cosmetic product being used complies with the EU Cosmetics Regulation in relation to the amount of peroxide that it contains or releases. Clearly, the latter is a product-safety concern and requires the involvement of trading standards departments. However, by working with the GDC and using the various tools at our disposal, it’s possible to tackle both issues simultaneously. What sparked off your team’s work with the gDC? In April 2015, the GDC wrote to all trading standards departments to highlight the growing problem of illegal teeth whitening by non-GDC- registered companies and individuals, and to seek their cooperation. The letter invited authorities to share intelligence and to work with the GDC’s illegal-practice team to tackle the problem. We were delighted to accept this invitation and began drafting a project plan. Our goal was simple: to identify all traders offering teeth whitening illegally and bring them into compliance. What work have you done together? Has it been an effective collaboration? Because of the number of celebrities promoting teeth-whitening salons and products, we began our research on social networking platforms, such as Twitter and Instagram. By searching for keywords – known as ‘hashtags’ – such as #teethwhitening and #Essex, we were able to identify a few salons offering teeth whitening in our area, as well as several mobile beauticians based in other parts of Essex. We also used our covert Facebook account to view the most popular ‘buy and sell’ groups in our area, and found several posts relating to teeth whitening. Of course, it’s important to consider whether you need to obtain authorisation under the Regulation of Investigatory Powers Act (RIPA) before doing this; the answer is probably ‘yes’ in most circumstances, particularly for ‘closed’ groups. Our database in relation to beauty salons was rather out of date. However, our health and safety colleagues came to the rescue, giving us a list of salons with massage and special treatment (MST) licences in the area. All of these were visited by an officer to establish whether they were offering teeth whitening. Once we had a list, we contacted the GDC’s illegal-practice team to share this intelligence and found that they had already been in touch with one of the salons – Express Beauty by Regis, which operated in the local Tesco Extra store. We agreed that a trading standards officer would visit salons to obtain a sample of their teeth-whitening gel and give comprehensive advice. This was followed by a warning letter outlining the offences enforced by the GDC and trading standards, requiring them to cease their activities immediately. Although offences under the Dentists Act are enforced by the GDC, we also highlighted the potential offences of a misleading action and unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs). What have you achieved? The project was a real success and we achieved our goal of bringing all traders into compliance within four months of starting the project. Each salon assured us they would no longer offer teeth whitening. All of the teeth-whitening gels submitted for analysis were found to be non- compliant, either because of excessive levels of peroxide – the highest we found was 8.1 per cent – or labelling issues. The agreement of Regis to cease their activity in relation to teeth whitening was praised by the GDC, and the story was picked up by the national and regional press, including the Mirror, Radio Essex and local newspapers. How did having the gDC on board help? Working with the GDC’s illegal-practice team certainly helped us to achieve our goal. It provided invaluable advice during the project, as well as helpful guidance documents, and gave a consistent message to salons on the legal position of teeth whitening. I know it is keen to hear from other trading standards departments on joint working to tackle illegal teeth whitening. What challenges has the team faced and how did you overcome them? During the project we faced a handful of challenges, but they were relatively easy to overcome. Our thanks go to Richard Knight, a specialist trading standards officer at Essex County Council, who was both very supportive, and kind enough to share his guidance for businesses. We found that most salon staff had attended a one-day teeth-whitening training course and then ordered equipment and teeth-whitening products from the training provider. It seems they were told a number of myths – for example, that it is legal to carry out teeth whitening if the gel is ‘self- administered’ by the customer or if it is peroxide-free. We handed out a copy of the FAQs document produced by the GDC, which addresses these common misconceptions. We also found that a number of beauticians advertised a ‘mobile’ teeth- whitening service on Twitter and Instagram, and it was difficult to establish where they were based. In some cases, we were able to trace them using council tax records and through open source checks via the National Anti-Fraud Network (NAFN), both of which are government-run data and intelligence services. However, in other cases, we simply had to pick up the phone and ask! Several referrals were made to local trading standards departments. any tips for colleagues about to embark on a project of this nature? I would encourage you to contact the GDC and Richard Knight at the earliest opportunity, as their advice is invaluable. I would also suggest: l Use relevant keywords, such as ‘teeth whitening’, to identify posts on social networking platforms such as Twitter and Instagram. Some websites also offer location-based searching – for example, posts within a 10-mile radius l You may be able to negotiate a discount from test houses if you submit several samples at once, or if you request a ‘limited’ labelling report l Consider offences under CPUTRs – for example, a ‘misleading action’ in relation to the trader’s qualifications, or a ‘banned practice’ in relation to creating the impression that a product, which includes a service, can legally be sold when it cannot l If you have a teeth-whitening training company in your area, or receive complaints from a local salon, consider offences under the Business Protection from Misleading Marketing Regulations 2008 Illegal teeth whitening: A Q&A with Lewis Collantine tHe gDC The General Dental Council regulates dental professionals in the UK. To find out more, or to get involved, call +44 (0) 20 7167 6000 or visit www.gdc-uk.org LegaL position Cosmetic products such as teeth-whitening gel must comply with the EU Cosmetics Regulation, which includes requirements in relation to labelling, ingredients and safety. Manufacturers and importers must also register cosmetic products on the EU’s Cosmetic Products Notification Portal (CPNP). This legislation is enforced by trading standards. Annex III to the EU Cosmetics Regulation contains a list of ‘restricted substances’ that may only be used in accordance with the specified restrictions. According to this annex, products must not contain or release more than 0.1 per cent hydrogen peroxide. A higher concentration of six per cent is permitted for dentists and dental practitioners. In 2013, the High Court confirmed in the case of GDC v Jamous that tooth whitening is the ‘practice of dentistry’. This means it may only be carried out by dentists, dental therapists, dental hygienists or dental technicians who are registered with the General Dental Council (GDC). It is an offence under the Dentists Act 1984 for any other person to do so. This legislation is enforced by the GDC. Many salons will argue that they can legally offer teeth whitening if it is ‘self- administered’ by customers. However, Section Footnotes: 37 of the Dentists Act includes the words ‘treatment, advice or attendance’ and, as such, one or more of the following steps may constitute dentistry: l Asking the customer to complete a consent form that includes advice on the treatment and highlights any potential contraindications1 l Offering advice on the treatment, expected results and contraindications l Agreeing a ‘before’ shade using a colour chart l Handing a teeth-whitening tray to the customer and explaining how to place it into the mouth l Handing goggles to the customer and placing an LED light in front of them l Being present to provide advice or assistance to the customer during treatment l Providing advice on aftercare and maintenance, including the recommendation of aftercare kits l Agreeing an ‘after’ shade using a colour chart The GDC has successfully prosecuted a number of individuals and companies using the ‘self-administered’ approach. In addition, under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) it is an offence for traders to treat consumers unfairly through misleading actions, misleading omissions or aggressive practices. In my opinion, companies and individuals who are not GDC-registered may commit offences under this legislation. For example, Regulation 5 states that a commercial practice is misleading if its presentation is likely to deceive the average consumer in relation to the ‘nature, attributes and rights of the trader’. In my opinion, the ‘average consumer’ (as defined in Regulation 2) will be aware that teeth whitening may only be carried out by dental professionals. Further, the definition of ‘nature, attributes and rights’ (as set out in Regulation 5(6)) includes qualifications, status and approval of the trader. It is possible that consumers could be misled to believe staff are qualified or approved to carry out teeth whitening. In addition, Schedule 1 of the CPRs includes 31 commercial practices that are deemed to be unfair in all circumstances. Paragraph 9 reads: ‘Stating or otherwise creating the impression that a product [which includes services] can legally be sold when it cannot.’ Although the teeth-whitening product itself may be sold, if the salon cannot legally offer the teeth-whitening service it may also fall under this provision. 1. A contraindication is a specific situation in which a drug, procedure or surgery should not be used because it may be harmful to the person. There are two types of contraindications: relative contraindication means that caution should be used when two drugs or procedures are used together; and absolute contraindication means that an event or substance could cause a life-threatening situation. A procedure or medicine that falls under this category should be avoided. www.nlm.nih.gov Credits Lewis Collantine is a trading standards officer at Thurrock Council. 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