Dental Board of California Closely Watches Failed Bill to Regulate Mail-Order Teeth Alignment Companies

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By Jonathan Greenbergs

On August 8, 2020, AB 1998 (Low) failed to pass the Assembly Committee on Business, Professions, & Economic Development. As amended June 3, 2020, this bill would have amended sections 1680, 1683.1, and 1683.2 of, and added section 1684.1.1 to, the Business and Professions Code, requiring dentists and orthodontists to review X-rays of patients’ teeth before providing certain orthodontic treatments. The bill would have also required patients to be provided specified information in a dental treatment plan, and specified that licensed dentists and other professionals under the jurisdiction of the Dental Board of California (DBC) not be required to sign an agreement that limited their ability to file a complaint or provide information to the Board.

An outgrowth of DBC’s last sunset review process, the Board had voted to watch AB 1998 [Agenda Item 11(a)], which was highly controversial. DBC stated in its 2018 response to Legislative Oversight’s background paper on its sunset review issues, that it is possible for a consumer to go through the mail-order teeth realignment process without ever actually consulting with a licensed dentist, which has raised nation-wide concerns.

According to the author, AB 1998 would have banned “dangerous and harmful teleorthodontics” by largely prohibiting direct-to-consumer dental aligner products until legislation is passed to establish parameters for how teleorthodontics companies may operate. The author further stated, “California is proud to be the incubator of innovation—but we cannot sacrifice patient health and safety in exchange for making billionaires out of tech bros.”

According to a bill analysis, groups such as the American Association of Orthodontists and the California Association of Orthodontists supported the legislative changes as important measures for consumer protection. The bill was opposed by groups such as SmileDirectClub and the Black Small Business Association of California on the basis that a blanket mandate for radiographs would be contrary to the standard of care for dentistry and preempts a dentist’s judgment in the care for his or her patient. Opponents also argued that teledentistry is an affordable option for many low-income communities, specifically, communities of color. According to SmileDirectClub’s 2019 lawsuit against DBC, traditional braces can cost over $5,000, and SmileDirectClub charges just under $2,000.

If AB 1998 had passed, it would have required providers to order new X-rays if consumers could not produce them. According to a bill analysis, this is already the standard of practice for orthodontists and dentists, and it would diminish the ease and convenience of SmileDirectClub and other teledentistry options. The American Association of Orthodontists testified that X-rays are essential to the diagnosis and prevention of root issues, bone disease, and oral cancer; without X-rays being required, teeth may be aligned but unhealthy.

Despite some consumer satisfaction, reporting by news outlets and the Better Business Bureau have led to a weakening public image for SmileDirectClub. According to a bill analysis, the Better Business Bureau reported that it has received over 1,670 complaints about SmileDirectClub, Inc. since 2014, including reports of cracked teeth, misaligned bites, migraines, and jaw pain after using the teeth-straightening trays from clients who purchased mail-order aligners like the ones offered by SmileDirectClub. SmileDirectClub has sued NBC over a news segment alleging the company’s malpractice, which SmileDirectClub says is “defamatory” and has requested damages of $2.85 billion.

As further outlined in the testimony surrounding AB 1998, a separate news article revealed that the largest telehealth orthodontics company’s lead dentist was at risk of losing his California license following a two-year DBC investigation. DBC accused the lead dentist of “violating state law, defrauding state dental regulators and acting with gross negligence toward patients while helping [the company] grow its business.” Prior to DBC’s accusation, SmileDirectClub filed a lawsuit [as cited to above], against the Dental Board members, alleging that its investigation into the company’s practices constituted harassment.

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