Legal issues facing health care practitioners who advise on nutrition and diet continue to spawn new regulation.

Legislation affecting nutritionists/dietitians affect all kinds of complementary and integrative medicine practitioners.  Holistic health professionals of every kind like to sprinkle in dietary, nutrition and lifestyle advice. 

Typically this raises scope of practice issues.  For example, dietary and lifestyle guidance typically is a part of acupuncturist and oriental medicine practice.  However, can massage therapists legally give nutritional advice?  Can even acupuncturists veer into Western dietary supplements?  Can either practice Ayurvedic medicine?

These are the kind of thorny legal and regulatory practice issues on which our lawyers advise.

Below is information from an alert from the NHFA about recent legislative activity that would affect a variety of health care providers and their legal rights. If you have questions about your legal right to practice, contact an attorney for legal guidance – and meanwhile, learn the political landscape whose changing contours can affect your practice.

Nevada AB289 would make it a crime to “practice dietetics” or provide “nutrition services” unless you are licensed as a dietitian. Because “nutrition services” and “dietetics” are so broadly defined in the bill, this would mean that in practical terms, anyone who gives advice or recommendations on foods or nutritional supplements could be at risk of prosecution for a misdemeanor and a civil fine of up to $10,000.

National Health Freedom Action strongly opposes AB 289 and views it as a direct infringement on free speech and the issue of freedom to practice for thousands of Nevada citizens and practitioners of the natural healing arts.

What you can do

Click here to call the members of the Nevada Senate Commerce, Labor & Energy Committee.

Tell them that this bill would prohibit free speech, restrict citizen access to nutritional advice, and restrict the rights of natural health practitioners to give nutritional recommendations to their clients.

If you live in the state of Nevada, please click here to send a message to the legislators who will hear this bill next. If you know anyone living in Nevada, please forward this message to them.

We must retain freedom of speech
about nutrition and freedom to practice!

It is imperative that the people of the United States retain freedom of speech about nutrition! And it is imperative that practitioners of the natural health arts be free to give advice or recommendations about good nutrition to their clients. Nutrition must remain in the public domain – which means that all of us must be free to help others be well with nutrition services

Nutrition services are integral to the practices of multiple healing arts. And there are many and varied approaches to good nutrition. Think for example of Vedic nutrition, macrobiotic nutrition, raw foods, and whole foods nutrition. Using foods to be healthy is not, and should not be, the exclusive domain of conventional medically trained dietitians.

Government should not interfere with free speech or practices unless they cause threat of harm to the public. If this bill should pass, at the very least it should contain an exemption to allow non-dietitians to provide truthful and non-fraudulent nutritional advice freely, provided that they do not hold themselves out as a dietician or use a protected title.

Take Action Now!
Click here to send a message if you live in Nevada

Click here to call legislators

Click here to read the bill language

Read more about the specific language of this bill and why it is so important to defeat it:

Seven important reasons to oppose and defeat AB 289:

1. This bill makes it a crime to “practice dietetics” or “nutrition services” which are defined very broadly to include many things many people do in the public domain and defined in this bill as:

4 Sec. 5. “Nutrition services” means the performance of acts
5 designated by the Board which are within the practice of dietetics.
6 Sec. 6. 1. “Practice of dietetics” means the performance of any act in the
7 nutrition care process, including, without limitation, assessment, evaluation,
8 diagnosis, counseling, intervention, monitoring and treatment , of a person which
9 requires substantial specialized judgment and skill based on the knowledge,
10 application and integration of the principles derived from the sciences of food,
11 nutrition, management, communication, biology, behavior, physiology and social
12 science to achieve and maintain proper nourishment and care of the health of the
13 person.
14 2. The term does not include acts of medical diagnosis.

2. This bill makes it a crime to use any title that would indicate you were doing those things within the broad definition of dietetics:

20 person shall not:…
directly or by implication, use the
28 word “dietetics” or “nutritionist” or represent himself or herself
29 as licensed or qualified to engage in the practice of dietetics in this
30 State;

3. This bill creates a new misdemeanor and civil penalties of up to $10,000 in the area of sharing information for anyone who steps into the exclusive zone spelled out:

37 Sec. 46. 1. A person who violates any provision of this
38 chapter or any regulation adopted pursuant thereto is guilty of a
39 misdemeanor.
40 2. In addition to any criminal penalty that may be imposed
41 pursuant to subsection 1, the Board may, after notice and hearing,
42 impose a civil penalty of not more than $100 for each such
43 violation. For the purposes of this subsection, each day on which a
44 violation occurs constitutes a separate offense, except that the
1 aggregate civil penalty that may be imposed against a person
2 pursuant to this subsection may not exceed $10,000.

4. This bill DOES NOT CONTAIN a comprehensive exemption for unlicensed persons practicing within the broadly spelled out scope of the “practice of dietetics” or “nutrition services”.

There should be an exemption for a n herbalist, nutrition consultant, nutritionist, naturopath, retailer, culture or religion-based medical practitioner or any other person or health care practitioner practicing dietetics or nutrition services who does not hold himself out to be a dietitian by using one or more of the titles restricted in the bill, or who makes recommendations or furnishes advice regarding  nutrition, health, or lifestyle, or about food, food ingredients, dietary supplements or other goods or product, or who furnishes non-fraudulent information about such products.

Legitimate disagreement about the role of the above listed nutrients and foods as they apply to human nutrition should not be oppressed.

5. The bill attempts to BAN and outlaw all speech relating to nutrition except what it defines as “nutrition information” . This is flat out unconstitutional. A law that out-rightly restricts freedom of speech and the provision of truthful and non-misleading information by public citizens, and that is not regulated federally in commerce, is unconstitutional and unacceptable and goes far beyond the purpose of occupational licensing.

10 2. As used in this section, “nutrition information” means
11 information relating to the principles of nutrition and the effect of
12 nutrition on the human body, including, without limitation:
13 (a) Food preparation;
14 (b) Food included in a normal daily diet;
15 (c) Essential nutrients required by the human body and
16 recommended amounts of essential nutrients, based on nationally
17 established standards;
18 (d) The effect of nutrients on the human body and the effect of
19 deficiencies in or excess amounts of nutrients in the human body;
20 and
21 (e) Specific foods or supplements that are sources of essential
22 nutrients.

The current bill gives an exemption to those who give out “nutrition information” and this narrow exemption is an assault on freedom of speech.. This is the current exemption language.

21 Sec. 9. 1. The provisions of this chapter do not apply to:…
44 (d) A person who furnishes nutrition information or markets
45 food, food materials or dietary supplements and provides nutrition
1 information related to that marketing, if the person is not engaged
2 in the practice of dietetics and does not provide nutrition services.

NOTE: States should be careful when delegating to one small group the power to define and prohibit free speech. They should avoid allowing professional groups to be gatekeepers of freedom of speech in this area of nutrition, natural processes, food consumption, and many other areas.

The practice of medicine is already defined in statute, but a number of states have exemptions from the practice of medicine for complementary and alternative health care or unlicensed health care practices based on harm thresholds spelled out in statute (MN, RI, CA, LA, NM, OK, ID, AZ, and NM). Nevada should consider this type of an exemption on all licensing statutes.

6. Making the provision of nutrition services exclusive to licensed dietitians is offensive to the vocations of many practitioners and is not helpful to protecting access to independent or unlicensed nutrition practitioners and other complementary and alternative health care practitioners because it makes the assumption that no other educational institution or program other than dietitian education would use a systematic approach to problem solving relating to nutrition and health. That is false. Many independent practitioners and providers of nutrition information follow problem solving processes included in the bill language and according to their educational programs and training. 

7. The extended list of what a dietitian shall provide includes many services that are now provided by practitioners of all kinds, practicing in the public domain. Hundreds of complementary and alternative health care practitioners participate in many of these activities and they should not be exclusive to one group.

12 Sec. 27. 1. A licensed dietitian shall provide nutrition
13 services to assist a person in achieving and maintaining proper
14 nourishment and care of his or her body, including, without
15 limitation:
16 (a) Assessing the nutritional needs of a person and
17 determining resources for and constraints in meeting those needs
18 by obtaining, verifying and interpreting data;
19 (b) Determining the metabolism of a person and identifying
20 the food, nutrients and supplements necessary for growth,
21 development, maintenance or attainment of proper nourishment of
22 the person;
23 (c) Considering the cultural background and socioeconomic
24 needs of a person in achieving or maintaining proper
25 nourishment;
26 (d) Identifying and labeling nutritional problems of a person;
27 (e) Recommending the appropriate method of obtaining proper
28 nourishment, including, without limitation, orally, intravenously
29 or through a feeding tube;
30 (f) Providing counseling, advice and assistance concerning
31 health and disease with respect to the nutritional intake of a
32 person;
33 (g) Establishing priorities, goals and objectives that meet the
34 nutritional needs of a person and are consistent with the resources
35 of the person, including, without limitation, providing instruction
36 on meal preparation;
37 (h) Treating nutritional problems of a person and identifying
38 patient outcomes to determine the progress made by the person;
39 (i) Planning activities to change the behavior, risk factors,
40 environmental conditions or other aspects of the health and
41 nutrition of a person, a group of persons or the community at
42 large;
43 (j) Developing, implementing and managing systems to provide
44 care related to nutrition; and
1 (k) Evaluating and maintaining appropriate standards of
2 quality in the services provided.
3 2. A licensed dietitian may use medical nutrition therapy to
4 manage, treat or rehabilitate a disease, illness, injury or medical
5 condition of a patient, including, without limitation:
6 (a) Interpreting data and recommending the nutritional needs
7 of the patient through methods such as diet, feeding tube,
8 intravenous solutions or specialized oral feedings;
9 (b) Determining the interaction between food and drugs
10 prescribed to the patient; and
11 (c) Developing and managing operations to provide food, care
12 and treatment programs prescribed by a physician, physician
13 assistant, dentist, advanced practitioner of nursing or podiatric
14 physician that monitor or alter the food and nutrient levels of the
15 patient.
16 3. A licensed dietitian shall not provide medical diagnosis of
17 the health of a person.
18 4. As used in this section, “medical nutrition therapy” means
19 the use of nutrition services by a licensed dietitian to manage, treat
20 or rehabilitate a disease, illness, injury or medical condition of a
21 patient.

Michael H. Cohen is an experienced business law and health care law attorney.  He has taught health care law and policy at Harvard University and counseled many different kinds of practitioners and businesses, including:

  • entrepreneurial start-up ventures in many different industries
  • physicians (MD’s and DO’s)
  • physician groups, hospitals, and clinical facilities
  • integrative medicine centers
  • professional health care educational institutions and associations
  • dentists
  • registered nurses and advanced practice nurses
  • clinical psychologists
  • chiropractors
  • acupuncturists
  • massage therapists
  • homeopathic physicians and homeopaths
  • naturopathic doctors and naturopaths
  • energy healers, hypnotists, medical intuitives
  • dietary supplement manufacturers and distributors
  • cosmetics manufacturers
  • entrepreneurs and start-ups
  • publishers
  • wellness clinics
  • herbalists
  • bio-energy companies
  • medical device inventors
  • telemedicine enterprises
  • many different businesses

As an attorney  at the cutting edge of health care and business law, he represents enterprises whose leaders are conscious and committed to a better world.  He provides legal and regulatory expertise to a multitude of businesses and corporations, as well as to attorneys and law firms involved in various health care legal issues including:

  • fee-splitting, Stark and anti-kickback
  • corporate practice of medicine (including New York, California, Massachusetts, D.C.)
  • medical board disciplinary proceedings and other professional discipline
  • negligence, informed consent, and medical malpractice liability (negligence)
  • HIPAA and patient privacy and confidentiality issues
  • Medicare (including opting out vs. participation vs. non-participation)
  • professional liability insurance and insurance (billing and coding) issues
  • telemedicine, tele-psychiatry and telehealth
  • litigation (plaintiff’s counsel and defense) and negotiation
  • other legal and regulatory compliance issues.

To speak with a lawyer about health care law issues pertaining to complementary and alternative medicine, or to consult a business lawyer about laws and legal issues for entrepreneurs and new enterprises that are seeking legal advice, contact attorney Michael H. Cohen today.