Consumers for Dental Choice
1725 K St., N.W., Suite 511
Washington , DC 20006
Ph. 202.822-6307; fax 822-6309
www.toxicteeth.org

Petition to the Attorney General of Maine and to the Federal Trade Commission, Boston Regional Office

Re: Threatened Boycott of Dental Services for Maine’s Children by the American Dental Association

Relying on its monopoly market power, the American Dental Association – which endorses mercury fillings and gets paid by manufacturers for doing so – is threatening a boycott of dental services for the children of Maine if mercury fillings are banned. The ADA presented a letter to the Joint Committee on Natural Resources during a hearing to ban amalgam for environmental reasons, which stated that if one form of filling materials, mercury, was abolished – even though interchangeable substitutes exist – “the result will be treatment delayed [and] treatment denied.”

OVERVIEW

Repeatedly in recent years, the Federal Trade Commission has acted against antitrust violations by organized dentistry. Cases from Indiana, California, and South Carolina have all involved efforts to restrict competition in dental services, generally against competitors, other dental providers, or patient groups.

This week, however, the ADA attacked the most defenseless target of all: children. The ADA threatened that the passage of a law in Maine abolishing just one kind of filling material, the one containing the neurotoxin mercury, would cause their members to start withdrawing dental care to children – even though alternative materials are available and every dentist knows (or is licensed to know) how to use them. When an economist warns of fewer services being available, it is a prediction. When the trade group supplying 70% of those services makes the warning, it is a threat.

The ADA masquerades as a society focused on dental health. Actually, the ADA works hand-in-glove with its secret contractual partner, the amalgam manufacturers, to keep their fillings in use and to prevent the public from learning they are mainly mercury. Even though the ADA tells the public that it has found mercury amalgam to be “safe and effective,” in reality the ADA has never tested mercury fillings for safety. Rather, the ADA has pay-to-play endorsement contracts, where mercury fillings manufacturers pay the ADA up-front fees, and the ADA grants a seal of acceptance with no tests on safety whatsoever. Furthermore, the ADA’s history of financial interest in marketing amalgam extends to owning patents, two of them (now expired) – another financial move that is anathema to medical ethics.

To advance those patents in the 1980s, the ADA enacted a gag rule, a notorious rule of conduct compelling dentists to stand silent on the issue rather than expose the toxicity of mercury fillings, or that the fillings have mercury at all. In addition to deceiving the public, the ADA promotes amalgam under the highly deceptive term “silver,” and has even created a brochure for dentists to hand out to their patients that is boldly titled “silver fillings.”

Far from being a scientific group interested in dental care, the ADA is an economic colossus, one that has ensured market protection to its favored dental filling material by controlling dentists’ speech via the gag rule, mandating mercury fillings in dental school curricula, creating the dental insurance market that give primacy to mercury fillings over other materials, and awarding its Seal of Acceptance to a product that is composed of 50% of one of the most toxic elements on earth, mercury.

STATEMENT OF FACTS

I. The American Dental Association has monopoly economic power.

1. The American Dental Association (ADA), based in Chicago, is by far the dominant trade group among dentists, with a membership equaling or exceeding 70% of all U.S. dentists.
2. The 70% figure far exceeds the level of the bar (under 40%) or medical (under 50%) associations, and perhaps any other health trade group.
3. Unlike law and medicine, the ADA has an ironclad “tripartite” system, meaning a dentist may only join the local and state dental society by joining the American Dental Association.
4. The ADA controls the accreditation of dental schools. Using that power, the ADA ensures that dentists must pass tests of implanting mercury fillings, even though some dental students consider it a health risk for themselves and their patients.
5. The ADA plays a major role in recommending where dentists should locate their dental practices.
6. The ADA founded Delta Dental Plan, the major dental insurer, and created its third-party payment system to ensure payments to dentists, not to protect consumers. At the start, dentists controlled the boards of Delta Dental Plans.

   II. The ADA has pay-to-play contracts with mercury fillings manufacturers to promote mercury fillings.

7. Alone among major health trade groups, the ADA has a system of product endorsements called the “seal of acceptance” program, in which the ADA pronounces a product “safe and effective.” Among the endorsed products are the mercury fillings produced by all major mercury amalgam manufacturers.
8. Manufacturers must pay an up-front fee before the ADA will even consider providing the “safe and effective” label.
9. The ADA hid from the committee, and hides from the Maine and American public, the fact that it has these pay-to-play endorsement contracts with amalgam manufacturers – instead masquerading its system as one based on its phony “science.”
10. The ADA represents to the public and to its dentist members that it has evaluated the mercury fillings for safety.
11. In fact, the testing is a sham. The ADA has never conducted a single experiment that proves the safety of mercury fillings. It has no procedures to test mercury amalgam for safety, but it provides the “seal of acceptance” nonetheless.
12. The ADA is the only health trade group that endorses a product containing large quantities of mercury.
13. The ADA’s interest in protecting and promoting mercury fillings is also illustrated by the fact that the ADA owns two patents on amalgam -- patent numbers 4,018,600 and 4,078,921 (expired).
14. The mercury amalgam manufacturers recognize they are marketing a product that should not be given to children and pregnant women, but rely on the ADA to block this information from the people of Maine and the United States. One of the largest mercury amalgam manufacturers, Kerr, puts this chilling warning on is packing slip of the mercury amalgam product Tytin which is a Kerr product and this is what is written on the packing slip:

    "The health authorities of the various countries, including Canada, Germany, France, the United Kingdom, Norway and Austria have recommended against the placement or removal of an amalgam in certain individuals such as pregnant and nursing women and persons with impaired kidney function."

15. Without the ADA seal of acceptance and ADA’s concerted efforts to block this warning from the public seeing it, Kerr knows, dentists would have to cease placing its product in the mouths of children, pregnant women, nursing women, and people with kidney disease.
16. Through its seal of acceptance program, and its gag rule, the ADA has hidden this incredibly important information from the public. Indeed, in the letter to the Maine legislative committee, the ADA says it is particularly focused on the continued use of mercury fillings in children – even though parents in Canada are warned that their children should not receive them.

    III. The ADA has long engaged in an economic campaign to block the emergence of mercury-free dentistry.

17. Many dentists refuse to place mercury fillings – a poll in 2001 puts the number at 27% – and some are bold to explain that their reason for abandoning the use of amalgam is their concern over its potential health effects.
18. With the majority of dentists still placing mercury fillings, with its economic ties to mercury fillings manufacturers, and with its historical ties a third-party payment system relegating lower-income consumers to mercury fillings, the ADA fights the emergence of mercury-free dentistry.
19. The ADA’s “Code of Ethics” doubles as its rules of conduct. One such rule of conduct, now under review in the Supreme Court of California, compels dentists to stand silent instead of advise patients and the public about the health risks associated with mercury fillings. This rule of conduct is called the gag rule by the media and dental/ public health critics.
20. The ADA, through its control over state associations under the tripartite system, compels state associations to enforce the gag rule. Some ADA state and local dental societies therefore police advertising, speeches, and other communications by mercury-free dentists, and follow up with threatening communications or sham complaints to state boards which regulate dental licensing.
21. Mercury fillings are no longer needed to fill cavities, according to a petition endorsed by over 120 dentists (attached).
22. The concerted effort to block the emergence of mercury-free dentistry as the dominant practice is based on the ADA’s economic position.

    IV. On April 5, 2005, the ADA threatened to withhold dental services from the children of Maine if mercury fillings are banned.

23. The State of Maine has continual difficulties finding dentists to serve its rural areas.
24. The State of Maine has had continual difficulties encouraging dentists to participate in Medicaid for children’s dental services.
25. The State of Maine, for environmental reasons, is considering banning mercury fillings.
26. On April 5, 2005, the ADA sent several representatives to Augusta to deliver a letter dated March 29 to a Legislative committee, a letter signed by both its president and executive director.
27. The letter cc’d the executive director of the Maine Dental Association, indicating that the Maine Dental Association was not involved in this strong-arming action, but rather was being notified at the time as the lawmakers.
28. The letter states that (page 2, paragraph 5) that abolishing mercury fillings would “put patients at risk of … not being able to receive dental care,” even though the ADA knows that any cavity may be filled by alternative materials.
29. The letter lists children and persons with disabilities as the ADA’s #1 target for mercury fillings (page 2, paragraph six).
30. The letter then contains the following threat to withdraw dental services from those children of Maine:
    “The result will be treatment delayed, treatment denied, and treatment never
    being sought.” (Emphasis added).
31. The sentence following shows the ADA is not just making a prediction, but will work to fulfill that prediction:
    “That is not a situation the dentists of Maine, the United States, or our
    policymakers [sic] can be willing to accept.”
32. The ADA takes it upon itself to be the “policymakers” for dentistry, a bold assertion that its economic power trumps the state’s governmental interests. To threaten that the situation is one they cannot “be willing to accept” makes clear that the ADA plans to take action on the issue of delaying and denying treatment to children.
33. The actual language, itself a threat of a boycott, is even worse when it is combined with the following factors: the withholding of salient information about the ADA’s economic ties to mercury fillings manufacturers, the sham claim that mercury fillings are still necessary for children, and the fact that it was the top two officials of the ADA who threatened the withdrawal of services. It demonstrates an unfiltered message that the ADA is taking action; that it will harm the children of Maine in order to protect the marketing of mercury fillings.
34. At the hearing, the ADA warned about recommending to national dentists that they not locate to rural Maine, if the legislation passed.

REQUESTED ACTION

The antitrust laws prohibit concerted refusals to deal, also known as boycotts. The ADA has plenary power to put into effect a plan to withdraw or limit dental services to the children of Maine. The ADA has shown its purpose, consistent with its hidden financial ties to mercury amalgam manufacturers, is to protect the marketing of its endorsed product. The effect of a boycott could have calamitous effects on the health of the children of Maine.

We ask the Attorney General of Maine and/or the Federal Trade Commission to begin an investigation, and, moreover, to consider bringing an injunction against the American Dental Association to stop them from proceeding on this reckless and outrageous course of action.

EXHIBITS

1. ADA letter threatening boycott of Maine children if mercury fillings are banned;
2. Statement endorsed by 120 dentists that no cavity need by filled by mercury;
3. ADA rule of conduct mandating silence about mercury controversy (“gag rule”);
4. From www.ada.org: list of mercury fillings manufacturers with whom ADA signs endorsement contracts.

Respectfully submitted,

Charles G. Brown, National Counsel 1
Consumers for Dental Choice
April 12, 2005

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1. Antitrust prosecution experience: Staff Attorney, Bureau of Competition, Federal Trade Commission; Director, West Virginia Attorney General’s Antitrust Division; Chairman Antitrust Committee, National Association of Attorneys General.