The Era of the Private Enforcer

The first year of the new millennium has already provided two attention-grabbing events that should have been of considerable interest to the dental practitioner. The first came with a sigh of relief and great sense of satisfaction that a long legal battle with a major governmental regulatory agency had finally been brought to a positive closure. The second may be the harbinger of an unexpected and continuing threat to the small-business owner.

The long-running case brought by the Federal Trade Commission against the California Dental Association over advertising guidelines dated back to 1985. This case, which began with the FTC’s administrative complaint of July 1993 against CDA, has had a long history that will not be related here in detail. Last fall, the Ninth U.S. Circuit Court of Appeals received the case back from the Supreme Court and on Nov. 17, 2000, denied the FTC a rehearing, which was a welcome victory for CDA

At the conclusion of that decision, the FTC still had one remaining option -- to seek a further review from the Supreme Court. However, on Feb. 15, 2001, the FTC announced its decision not to seek further review and dismissed the complaint. Thus, the ability of the association to self-regulate by regulating member dentist advertising and thereby maintain quality and professionalism ultimately was upheld and reinforced. A key point in the CDA case was that professional regulation of dentist advertising can benefit consumers and encourage competition. The case had been widely watched, not only inside dentistry, but also by other professional associations.

At about the same time that the end of this long but successful journey was announced, an ominous threat to the daily lives of dental practitioners was beginning to cause anger and frustration. At the time of this writing, at least 80 dental offices had been served with 60-day notices by "private enforcers" citing violations of Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986.

The aspect of this activity that is probably most frustrating to dental practitioners is the fact that, as written, Proposition 65 gives individuals representing organizations the authority to enforce the law by filing suit. In other words, law offices representing environmental groups are able to carry out this "private" activity with almost no oversight, unless their action is legally challenged.

As has been reported elsewhere, the violations are for failure to warn about chemicals on the Proposition 65 lists that are known to the State of California to cause cancer, birth defects, or reproductive harm. Here is where the activity by the private enforcers seems to be somewhat arbitrary and in a sense, capricious. The materials and products that may contain the chemicals in question are FDA-approved as safe for use in dental offices. Further, the irony of Proposition 65 is that a business with nine or fewer employees is exempt from the requirement to post a warning, while those with 10 or more employees must post or face up to a $2,500-per-day fine for failure to do so.

It is our understanding that the citing of offices by the private enforcers has not shown favoritism as to the size of the practice, as dental practices of all sizes have been put through the process of having to respond to the citations, certifying whether or not they have more than 10 employees and, if they do, whether or not they have complied with the posting requirement.

The immediate challenge facing CDA is to identify a uniform and tasteful approach to notifying our dental patients of the chemical exposure. A 10-x-10-inch sign with "WARNING" in 1-inch high letters and including a statement that "…composite and amalgam fillings, crowns, orthodontic brackets and wires and other materials used in dental treatment contain chemicals known to the State of California to cause cancer, birth defects or other reproductive harm" sitting in the middle of a dental waiting room, is NOT going to contribute positively to the dental experience. We have confidence that a more acceptable modality to inform patients will be designed and approved, hopefully before this column is widely read. CDA has encouraged the attorney general’s office to promptly approve an alternative warning.

Most regulatory activity that small businesses face is administered by a local, state, or federal agency. This enforcement activity, while authorized by Proposition 65 law, is administered by private organizations, in this case with an apparent self-interest objective of raising funding for environmental causes. We are concerned that their enforcement activities will lack uniformity and fairness, given the lack of oversight of their actions. This activity also creates a seemingly unregulated opportunity for lawyers who have little interest in the proposition itself to line their pockets with what could translate into millions of dollars in payouts from small businesses.

This is an activity that must be watched closely, as an expansion of actions at this level could become a costly and public-relations-sensitive interference to dentists trying to provide health care services. Monitoring of this form of enforcement activity and its interference with the practice of dentistry will ideally fall into the province of CDA membership services during the era of the private enforcer.