CAMLAW: Complementary and Alternative Medicine Law Blog

California law for non-licensed practitioners and nutritional advice

California law dealing with unlicensed health care providers also addresses a topic often neglected: advice involving nutrition.

The California statute, cited earlier on this blog, includes this provision:

2053.5. (a) Notwithstanding any other provision of law, a person who complies with the requirements of Section 2053.6 shall not be in violation of Section 2051 or 2052 unless that person does any of the following: (1) Conducts surgery or any other procedure on another person that punctures the skin or harmfully invades the body. (2) Administers or prescribes X-ray radiation to another person. (3) Prescribes or administers legend drugs or controlled substances to another person. (4) Recommends the discontinuance of legend drugs or controlled substances prescribed by an appropriately licensed practitioner. (5) Willfully diagnoses and treats a physical or mental condition of any person under circumstances or conditions that cause or create a risk of great bodily harm, serious physical or mental illness, or death. (6) Sets fractures. (7) Treats lacerations or abrasions through electrotherapy. (8) Holds out, states, indicates, advertises, or implies to a client or prospective client that he or she is a physician, a surgeon, or a physician and surgeon. (b) A person who advertises any services that are not unlawful under Section 2051 or 2052 pursuant to subdivision (a) shall disclose in the advertisement that he or she is not licensed by the state as a healing arts practitioner.

2053.6. (a) A person who provides services pursuant to Section
2053.5 that are not unlawful under Section 2051, 2052, or 2053 shall,
prior to providing those services, do the following:
(1) Disclose to the client in a written statement using plain language the following information:
(A) That he or she is not a licensed physician.
(B) That the treatment is alternative or complementary to healing
arts services licensed by the state.
(C) That the services to be provided are not licensed by the
state.
(D) The nature of the services to be provided.
(E) The theory of treatment upon which the services are based.
(F) His or her educational, training, experience, and other
qualifications regarding the services to be provided.
(2) Obtain a written acknowledgement from the client stating that
he or she has been provided with the information described in
paragraph (1). The client shall be provided with a copy of the
written acknowledgement, which shall be maintained by the person
providing the service for three years.
(b) The information required by subdivision (a) shall be provided
in a language that the client understands.
(c) Nothing in this section or in Section 2053.5 shall be
construed to do the following:
(1) Affect the scope of practice of licensed physicians and
surgeons.
(2) Limit the right of any person to seek relief for negligence or
any other civil remedy against a person providing services subject
to the requirements of this section.
2068. This chapter shall not be construed to prohibit any person
from providing nutritional advice or giving advice concerning proper
nutrition. However, this section confers no authority to practice
medicine or surgery or to undertake the prevention, treatment, or
cure of disease, pain, injury, deformity, or physical or mental
conditions or to state that any product might cure any disease,
disorder, or condition in violation of any provision of law.

For those energy healers and others providing nutritional advice, consider this:

For purposes of this section the terms "providing nutritional advice or giving advice concerning proper nutrition" means the giving of information as to the use and role of food and food ingredients, including dietary supplements. Any person in commercial practice providing nutritional advice or giving advice concerning proper nutrition shall post in an easily visible and prominent place the following statement in his or her place of business:

"NOTICE"

"State law allows any person to provide nutritional advice or give
advice concerning proper nutrition--which is the giving of advice as
to the role of food and food ingredients, including dietary
supplements. This state law does NOT confer authority to practice
medicine or to undertake the diagnosis, prevention, treatment, or
cure of any disease, pain, deformity, injury, or physical or mental
condition and specifically does not authorize any person other than
one who is a licensed health practitioner to state that any product
might cure any disease, disorder, or condition."

The notice required by this section shall not be smaller than 81/2
inches by 11 inches and shall be legibly printed with lettering no
smaller than 1/2 inch in length, except the lettering of the word
"NOTICE" shall not be smaller than 1 inch in length.

This is interesting, because the statute applies to "any person" giving nutritional advice. In some states, even licensed health care providers such as chiropractors have been prosecuted for practicing "medicine" without a license; in one case, the court held that the chiropractor had gone beyond 'dietary advice,' which the statute plainly allowed, into 'prescribing vitamins to treat disease,' which is unlicensed medical practice.

Of course, California's statute still prohibits unlicensed medical practice, so a California court could conceivably still come out the same way. But the new language does provide a fair amount of wiggle room for those who conscientiously stay within the rules and post the appropriate notice.

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