Teeth whitening supplier denied natural justice

A supplier of teeth whitening products was denied natural justice when its products were recalled, says the Federal Court.
A supplier of teeth whitening products was denied natural justice when its products were recalled, says the Federal Court.

The debate about how harmful take-home tooth-whitening kits really are took an interesting twist this week when the Australian Dental Association (ADA) informed members that a compulsory recall of unsafe tooth whiteners back in 2012 was not valid.

In February 2012 then-Parliamentary Secretary to the Treasurer, David Bradbury, signed a Consumer Protection Notice ordering a company to recall DIY teeth whitening kits to protect consumers from high concentrations of hydrogen peroxide that may cause chemical burns to a user’s mouth and gums. This is why it might be better to just go to a professional dentist, who can easily do this for you without causing you pain.

The products recalled were supplied by Pro Teeth Whitening (Aust) Pty Limited. “These products contain the bleaching agent hydrogen peroxide in higher concentrations than the recognised safe limits as set out in the Poisons Standard 2011 and are unsafe for DIY teeth whitening,” said Mr Bradbury at the time.

It appeared that Mr Bradbury was acting on advice offered by the Australian Competition and Consumer Commission (ACCC). Prior to that time, ), 22 teeth whitening products with unsafe levels of hydrogen peroxide or Carbamide Peroxide had already been voluntarily recalled by 8 other suppliers since December 2011.

Now the ADA has been informed that on 19 February 2014 the Federal Circuit Court of Australia (Federal Court) ordered that the decision of the then Parliamentary Secretary be set aside. The Federal Court also ordered that the Compulsory Recall Notices for the products supplied by Pro Teeth Whitening be set-aside, effective from the date the recall notices which were issued on 6 February 2012.

The legal effect of the court order is that the compulsory recall action made on Pro Teeth Whitening products was not valid at the time it was issued.

In his judgement The Hon. Justice Darryl Rangiah said, “I have found that the Minister’s decision to certify that a recall notice should be issued without delay in respect of the appellant’s products pursuant … denied the appellant natural justice.”

A full report of the case can be viewed by following this link:

The ADA’s Policy on Teeth Whitening (Bleaching) By Persons Other than Dental Practitioners (Policy 2.2.8) can be viewed here.

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