A blogger is suing the North Carolina Board of Dietetics/Nutrition for First Amendment violations of his free speech right, after he was investigated and charges with unlicensed practice of dietetics.

Unlicensed practice – whether of medicine, psychology, nutrition and dietetics, or massage therapy – is often considered criminal activity in most states. 

Recently, our law firm has noticed an uptick in representation of clients who are under investigation for unlicensed practice of nutrition and dietetics.  Enforcement authorities increasingly seem to be investigating non-licensed practitioners, and these practitioners frequently attend courses for integrative and holistic nutrition without being aware that their certificates will not protect them from government action. 

Now, the Institute of Justice is filing a First Amendment claim on behalf of one such practitioner:

That’s where Steve Cooksey, from Stanley, N.C., comes in. In February 2009, Cooksey was rushed to the hospital in a near diabetic coma. After years of sedentary living and poor diet, he had developed Type II diabetes. His doctors told him he would be dependent on drugs and insulin for the rest of his life.

While in the hospital, Cooksey spoke with a North Carolina-licensed dietitian who told him to eat a high-carbohydrate/low-fat diet, limit his caloric intake, monitor his blood sugar and inject insulin as needed. But as Cooksey began reading more about his condition in books and on the Internet, he became increasingly skeptical of the dietician’s advice. Because diabetes is an inability to properly process sugar, he found himself attracted to theories by advocates of low-carbohydrate/high-fat diets. After much research, Cooksey eventually settled on a "Paleolithic" diet, which involves eating food similar to that eaten by our Stone Age ancestors, eschewing sugars, processed foods and starches in favor of fresh vegetables, fish, meats, eggs, fats and nuts.

After adopting a Paleolithic diet, Cooksey underwent a dramatic personal transformation. He lost 78 pounds and is now in excellent health; he freed himself of drugs and doctors, normalized his blood sugar and insulin, and considers himself fit and energized. Cooksey started a blog to share his experience and advice, becoming an advocate for the Paleolithic diet on his free Web site, Diabetes-Warrior.net.

As his Web site grew in popularity, Cooksey developed friendships with many of his readers, several of whom he began advising and counseling on how to overcome the challenges of adopting a Paleolithic diet. Eventually, he began offering a one-on-one coaching service, whereby for a fee he would provide this same sort of advice, counseling and encouragement in phone calls and e-mails to customers. Cooksey also started to receive questions from readers, which he would respond to in a free Dear Abby-style online advice column.

Unfortunately for Cooksey, his Web site caught the attention of authorities. On Jan. 13, Cooksey received a phone call from the North Carolina Board of Dietetics/Nutrition informing him that his advice about what to buy at the grocery store — even his uncompensated advice to friends — constituted the unlicensed and, hence, criminal practice of dietetics. The board sent him a 19-page print-up of his Web site, which its members had gone through with a red pen, informing him that his private, uncompensated advice to friends is illegal "assessing," that the published advice in his Dear Abby-style column is illegal "counseling/advising," and that his coaching service is illegal, too. The red-pen review struck out various statements the board members claimed he could not legally make unless he became a licensed dietician, a process that takes years and costs thousands of dollars. The penalties for violating the dietetics-licensure statute range from fines to jail time.

In Complementary & Alternative Medicine: Legal  Boundaries & Regulatory Perspectives, I described case law in which courts held that the 10th Amendment – the police power (or power to regulate health, safety, welfare, and morals) trumps 1st Amendment free speech.

The current lawsuit attempts to strike a blow for the First Amendment against occupational licensing laws.  Writing for the Institute for Justice, a nonprofit, public interest law firm, the attorney who filed the case describes nutritional board investigations as "a lucrative, status-enhancing monopoly over the provision of dietary advice."

This may be a landmark case defining the rights of non-licensed providers.  In the meanwhile, practitioners who offer nutritional advice should consult with experienced health law attorneys to assess whether they are within the legally scope of practice of a licensed profession, or, compliant with laws in their state governing nutritional advice. 

Contact the Michael H. Cohen Law Group if you are practicing nutrition and are under investigation or simply need legal advice to determine your level of risk and regulatory compliance.