Date: January 25, 2024Attorney: Dennis J. Alessi

A quick internet search and you will see advertisements by dentists or Dental Spas in the metropolitan area stating that you can: “Have Your Teeth Whitened & Eliminate Forehead Lines All in One Visit.” The major suppliers and distributors of Botox, Juvéderm, and Restylane, all offer instructional courses and bulk purchase discounts for dentists to administer these injectables for purely cosmetic purposes for the faces and necks of their patients. These companies insist they have opinions from their attorneys that it is legal and within the scope of practice, for dentists to provide these purely cosmetic services for their patients. But when we pressed one major company to provide this legal opinion, the silence of the response was deafening.

Defining “Practicing Dentistry”

Going back to the basics, in New Jersey, the legal definition of “Practicing Dentistry,” NJSA 45:6-19, is particularly precise, comprehensive, and restrictive. It is limited to the “diagnosing, treating, prescribing or operating for any disease, pain, deformity, deficiency, injury, or physical condition of the human tooth, teeth, alveolar process, gums, cheek, or jaws, or oral cavity and associated tissues.”

The definition lists the performing of dental operations as including using a Roentgen or X-ray machine for dental treatment, dental radiograms, or for dental diagnostic purposes; extracting a human tooth or teeth; or correcting or attempting to correct the malposition of the human teeth or jaws; or offering or undertaking, by any means or method, to diagnose, treat or remove stains or concretions from human teeth or jaws; or using or administering local or general anesthetics in the treatment of dental or oral diseases or in any preparation incident to a dental operation of any kind or character; or taking impressions of the human tooth, teeth, jaws, or performing any phase of any operation incident to the replacement of a part of a tooth, teeth, or associated tissues; or performing any clinical operation included in the curricula of recognized dental schools or colleges.

It does not take a law degree to understand from this definition that the permitted scope of practice for dentists is limited to preventive and restorative dental health care of the teeth, gums, and jaw and that injecting Botox or Restylane for purely cosmetic purposes around someone’s eyes to eliminate Crowe’s feet, in their jaw to eliminate sagging skin, or in their forehead to eliminate brow lines, is absolutely and totally unrelated to this permissible scope of practice.

A Broad Interpretation of New Jersey Board of Dentistry Regulations

Some have interpreted the New Jersey Board of Dentistry regulation,  Section 13:30-8.4A , Administration of Injectable Pharmacologics, as affording dentists the “green light” to administer these injectables for purely cosmetic purposes at least in the “peri-oral area” which the regulation defines as the gums, cheeks, jaws, lips and oral cavity and associated tissues.”

Attorneys, for a number of reasons, are satisfied that this is an overly – broad interpretation of this regulation. The plain language of this regulation, the Dental Board’s comments on it, and at least tangentially a New Jersey appellate court decision, all support a more restrictive interpretation that permits a dentist to administer these injectables in the “peri-oral area” only when it is an element of a dental healthcare procedure or treatment of the area.

First, the regulation states, “a dentist may administer an injectable pharmacologic for the cosmetic or functional enhancement of peri-oral tissue only in a dental treatment setting…” Secondly, the very last section of the regulation includes a catch–all provision that: “Nothing in this section shall be construed to authorize a dentist to treat diseases, disorders or conditions that are outside the scope of the practice of dentistry, as defined in 45:6-19”. This is a reference to the above-quoted statutory definition of “Practicing Dentistry” as the “diagnosing, treating, prescribing or operating for any disease, pain, deformity, deficiency, injury, or physical condition of the human tooth, teeth, alveolar process, gums, cheek, or jaws, or oral cavity and associated tissues.”

The regulation explicitly grants dentists the authority to administer injectables, but this authorization is restricted to a dental treatment setting. Moreover, The entire regulation that provides this authorization is constrained by the statutory definition of “Practicing Dentistry.” In simpler terms, this means that the authorization is only applicable when the dentist is delivering dental health care, and the administration of injectables is integral to that care.

The Dental Board and its representatives have provided both formal and informal examples of acceptable uses for these injectables, all of which are connected to dental healthcare treatments, such as addressing bruxism and temporomandibular joint dysfunction. Despite the clear language in the regulation issued by the Dental Board, a dentist sought clarification on whether injecting Botox into the peri-oral area, treating Crowe’s fee, or injecting into the forehead would be permissible. The Board responded negatively, stating that such actions were only acceptable if the dentist was “treating a dental condition.”

Appellate Court Decision on Injectables and Pharmacologics

In the decision In The Matter Of  N. J. A. C. 13:30 – 8.4 A, Governing Injectable, Pharmacologics, the New Jersey appellate court was not directly presented with the question of whether dentists can administer injectables for purely cosmetic purposes unrelated to the providing of any dental health care treatment. However, in affirming the authority of the Dental Board to issue the regulation, the appellate court cited, with some emphasis, the exact same language of the regulation, referenced the same Dental Board examples of acceptable uses, and described the dentist’s question and the Board’s answer.

Creative Legal Solutions for Dental Spas

Notwithstanding all the above, the internet is replete with advertisements by New Jersey “Dental Spas” offering several types of purely cosmetic treatments by dentists using these injectables which are totally unrelated to providing any dental health care treatment: for example, giving a patient fuller lips.

For those dentists who want to enter this admittedly very lucrative market of non-dental facial and neck cosmetic procedures by opening a dental spa but who are concerned about a regulatory violation in doing so, there are legal options available. These include hiring an advanced practice nurse or registered nurse as an employee to administer the injectables or the dentist owning the dental spa with the advanced practice nurse or even with a physician. With either route, working with a qualified legal professional is essential to ensure that you operate within your state’s regulations.

How Our National Dental Law Group Can Help

According to a recent survey, as many as 5% of dental practices in the United States operate dental spas. Owning and operating a dental spa, especially in New Jersey, can have regulatory hurdles that should not be overlooked. Our National Dental Law Group is well-versed in the laws governing the “practice of dentistry” and can help you understand how to provide these services without violating the rules.