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Paid health advice is not free speech
NorthCascades
Posts: 10,968 Member
Heather Del Castillo, a “holistic health coach” based in Florida, brought the case in October of 2017 shortly after she was busted in an undercover investigation by the state health department. At the time, Del Castillo was running a health-coaching business called Constitution Nutrition, which offered a personalized, six-month health and dietary program. The program involved 13 in-home consulting sessions, 12 of which cost $95 each.
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The libertarian, public-interest law firm, The Institute for Justice, took up Del Castillo’s case. Together, they argued that the DNPA violates her right to freedom of speech. "Giving advice on what an adult should buy at the grocery store is speech, and the First Amendment protects it," one of Del Castillo's lawyers argued. Further, the law firm called the DNPA’s requirement that people giving nutrition advice be qualified and licensed to give nutrition advice had the effect of giving qualified and licensed nutritionists a “monopoly.”
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She went on to note that Del Castillo was well within her right to offer her health advice for free to anyone interested.
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In a statement, Del Castillo’s attorney, Paul Sherman, fired back: “For decades, occupational licensing boards have acted as if the First Amendment doesn’t apply to them… Yesterday’s ruling is wrong on the law, and we will be appealing.”
https://arstechnica.com/science/2019/07/unlicensed-health-coach-claims-health-advice-is-free-speech-court-disagrees/
It's hard for me to imagine paying $1,200 for woo when I can get so much for free here.
Do you think the court for this one right? Do the libertarians have a point about qualified people having a monopoly?
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The libertarian, public-interest law firm, The Institute for Justice, took up Del Castillo’s case. Together, they argued that the DNPA violates her right to freedom of speech. "Giving advice on what an adult should buy at the grocery store is speech, and the First Amendment protects it," one of Del Castillo's lawyers argued. Further, the law firm called the DNPA’s requirement that people giving nutrition advice be qualified and licensed to give nutrition advice had the effect of giving qualified and licensed nutritionists a “monopoly.”
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She went on to note that Del Castillo was well within her right to offer her health advice for free to anyone interested.
...
In a statement, Del Castillo’s attorney, Paul Sherman, fired back: “For decades, occupational licensing boards have acted as if the First Amendment doesn’t apply to them… Yesterday’s ruling is wrong on the law, and we will be appealing.”
https://arstechnica.com/science/2019/07/unlicensed-health-coach-claims-health-advice-is-free-speech-court-disagrees/
It's hard for me to imagine paying $1,200 for woo when I can get so much for free here.
Do you think the court for this one right? Do the libertarians have a point about qualified people having a monopoly?
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Replies
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i do think the court got it right - but i've previously spent a lot of time doing certification and licensure development (its actually a fairly arduous process)
when there is the potential for harm that i could be derived from advice being given, then i feel like free speech should be restricted - i kind of liken it to a case like yelling fire in a movie theatre (albiet on a smaller scale) - there is a risk of injury/death and you can be charged for it3 -
Yes, I believe the court is in the right. And to be blunt, the community of health coaches that are working on a national licensing/certification standard agree as well. There is a place for health coaches in the health care industry and in private practice - to help with goal setting, mindset, habit change, organization, education re the basics (like the stuff we post here all the time). And for people with diagnosed health conditions - working with their doctors to help them actually follow the medical advice given once they are outside the doctor's office.
But health coaches shouldn't be essentially "diagnosing" a person's health and "prescribing" a specific diet or supplement schedule to fix it, which unfortunately far too many do. There are just too many people getting their "education" from someone with a blog and a 12 week training course and then thinking they are experts in the hormonal system or auto-immune disease.
As a coach, you are allowed to educate people on general health, fitness, and nutrition. And in some states you can have a generic meal plan you provide to everyone as an example of a healthy meal plan. But as soon as you personalize anything for an individual's specific health, you've crossed a line.
I get the free speech thing. I mean technically I could tell a coworker that I used to have the same health problem she did and I fixed it by eating a certain way, and if she hurt herself by doing so instead of going to a doctor I don't believe I could be held personally liable for it. But if I charged her $100 for the same advice, and told her that due to my education I knew better than doctors in order to convince her, I think that's a different story. Not that I'm a legal expert or anything. But the reason we require doctors, nurses, RDs. etc to be licensed is so we can be sure they have a specific education, and so there is a way to stop them from practicing if they prove themselves a danger to their patients. People are too easily swayed by meaningless titles, and while I'm a firm believer in "buyer beware" I think some consumer protection is necessary when the stakes are suitably high.9 -
I question the legal foundation of such a concept. Licensing is limited to practicing a set of skills which amounts to sharing intellectual property and expanding this where an inherent level of risk exists. A great deal of risk exists in medicine, engineering, construction, etc., but holistic health?
It's a strong tactic to bring to mind "Giving advice on what an adult should buy at the grocery store", but I don't know if I would invoke the First Amendment. This is a contract and qualification dispute.
From the information provided (I suspect a good deal has been intentionally omitted to create controversy) I would disagree with the court and argue that central body has no right to interfere in a private transaction as long as no criminal laws are violated. Individuals should be able to purchase services from licensed and unlicensed practitioners. I would want to know what circumstances initiated the investigation - presumably from a consumer complaint.
Consumer/business protection flows both ways. Consumers need protection from business and government.4 -
Licensing requirements are a double-edged sword. It raises the cost of service in a wide range of fields, but also helps ensure (with many limitations) that people are trained. I think anyone should be able to charge anyone else for advice of any kind, but they must divulge their credentials, including what licenses they hold.
I was surprised to find out how much work was needed to get a barber's license. And, one guy who helped me with my landscaping was a "licensed horticulturist."2 -
I question the legal foundation of such a concept. Licensing is limited to practicing a set of skills which amounts to sharing intellectual property and expanding this where an inherent level of risk exists. A great deal of risk exists in medicine, engineering, construction, etc., but holistic health?
It's a strong tactic to bring to mind "Giving advice on what an adult should buy at the grocery store", but I don't know if I would invoke the First Amendment. This is a contract and qualification dispute.
From the information provided (I suspect a good deal has been intentionally omitted to create controversy) I would disagree with the court and argue that central body has no right to interfere in a private transaction as long as no criminal laws are violated. Individuals should be able to purchase services from licensed and unlicensed practitioners. I would want to know what circumstances initiated the investigation - presumably from a consumer complaint.
Consumer/business protection flows both ways. Consumers need protection from business and government.
i found the court case online - i didn't get a chacne to read it all and i'll see if i can find the link again tonight
the complaint was intiated from a licensed professional who saw the plaintiff's advertisement in the magazine and filed a complaint2 -
I think it's an important distinction that people aren't legally prevented from sharing their opinion on how carbs are the devil, eating after 3 pm makes you fat, and other nonsense. You just can't sell your opinion as a professional unless you're actually a professional. This lady could still have a YouTube channel.5
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You are absolutely entitled to free speach. You can saw what ever you want.
You are not immune to the consequences of that free speech.
So yes, if you say things that are wrong and cause harm to others, you are not immune to the consequences of that. Such as court cases where you pay damages. Especially if you claim you are an expert and you aren't.5 -
You are absolutely entitled to free speach. You can saw what ever you want.
You are not immune to the consequences of that free speech.
So yes, if you say things that are wrong and cause harm to others, you are not immune to the consequences of that. Such as court cases where you pay damages. Especially if you claim you are an expert and you aren't.
This ^^ my libertarian tendencies can get behind
I'm not for laws that limit free speech, but completely agree that if you say something or claim something falsely that leads to harm for someone else, you should be liable for the consequences. Sort of keep it out of the criminal court and settle it in civil court. 2 -
You are absolutely entitled to free speach. You can saw what ever you want.
You are not immune to the consequences of that free speech.
So yes, if you say things that are wrong and cause harm to others, you are not immune to the consequences of that. Such as court cases where you pay damages. Especially if you claim you are an expert and you aren't.
This is my primary issue with this case. Where is the consequence? I could rationalize this if the defendant was giving out harmful information.
The other issue is that what recourse is available when the licensing body (the government) claims expertise and isn't held accountable? Can I sue the government for harmful information such as the food pyramid?1 -
Because the ruling is only 29 pages, it's actually fairly digestible to someone without a legal background, and I have a bit too much time on my hands - here are some interesting quotes from the ruling that I think help to paint a fuller picture (note that I've taken out the citations). Note that you can find a PDF of it linked on the ARS Technica article.
(the DPNA being the Dietetics and Nutrition Practice Act)Furthermore, the DNPA does not “prohibit or limit any person from the free dissemination of information, or from conducting a class or seminar or giving a speech, related to nutrition,”
Further down it's stated that:Indeed, the DNPA does not prevent Del Castillo, and other unlicensed individuals, from providing dietary advice for free nor does it prevent her from conducting classes or seminars, giving speeches, or otherwise writing or publishing information related to diet or nutrition.Courts have also recognized that certain categories of speech, such as obscenity, defamation, fraud, incitement, child pornography, fighting words, and “speech integral to criminal conduct,” are completely outside the protection of the First Amendment.
They then go on to discuss the Locke v. Shore case which involved a group of residential interior designers wanting to expand their business into commercial interior design (which required a specific license) and then claiming that needing a commercial interior design license was violating their freedom of speech. What followed was that:The Department argues that the DNPA is not subject to First Amendment scrutiny, pursuant to the Eleventh Circuit’s decision in Locke v. Shore because its impact on speech is merely incidental to the state’s lawful regulation of the occupation of dietetics.The court held “that a statute governing the practice of an occupation is not unconstitutional as an abridgement of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.” The court also recognized that “generally applicable licensing provisions limiting the class of persons who may practice the profession” are not subject to First Amendment scrutiny.
They also mention, around half way through, the importance of things like the DPNA and licensing boards related to health professions and how that relates to First Amendment charges.3 -
The other issue is that what recourse is available when the licensing body (the government) claims expertise and isn't held accountable? Can I sue the government for harmful information such as the food pyramid?
Licensing bodies are part of a representative government. What recourse is available changes somewhat from jurisdiction to jurisdiction. You have the right to vote against people who make bad appointments; if enough other people agree with you, well, you know how this works.
In order to sue, you need "standing" which means you have to show how you've personally been harmed by the food pyramid. Living in a world of fat people doesn't count.
The real question is why are we taking about the nuts and bolts of how democracy works in a thread about a shyster defrauding the public with $1,200 woo?3 -
NorthCascades wrote: »The other issue is that what recourse is available when the licensing body (the government) claims expertise and isn't held accountable? Can I sue the government for harmful information such as the food pyramid?
Licensing bodies are part of a representative government. What recourse is available changes somewhat from jurisdiction to jurisdiction. You have the right to vote against people who make bad appointments; if enough other people agree with you, well, you know how this works.
In order to sue, you need "standing" which means you have to show how you've personally been harmed by the food pyramid. Living in a world of fat people doesn't count.
The real question is why are we taking about the nuts and bolts of how democracy works in a thread about a shyster defrauding the public with $1,200 woo?
Anyone think the case regarding the herbalist held responsible for that boys death may have contributed to increased scrutiny?
Details of the two cases are obviously different, but it still amounted to someone selling woo, much more severe consequences in the herbalist's case though...
Ignore me if I'm off base with that...2 -
You are absolutely entitled to free speach. You can saw what ever you want.
You are not immune to the consequences of that free speech.
So yes, if you say things that are wrong and cause harm to others, you are not immune to the consequences of that. Such as court cases where you pay damages. Especially if you claim you are an expert and you aren't.
This is my primary issue with this case. Where is the consequence? I could rationalize this if the defendant was giving out harmful information.
The other issue is that what recourse is available when the licensing body (the government) claims expertise and isn't held accountable? Can I sue the government for harmful information such as the food pyramid?
theoretically if they are doing their licensure/certification programs correctly - then the information required for knowledge should be reviewed/updated periodically - on the certifications I did, we had to revalidate the information every 2-3 years and provide a plan as part of the certification development for how we were going to validate information4 -
Do you think the court for this one right? Do the libertarians have a point about qualified people having a monopoly?
Why stop there though? What about practicing medicine? What about practicing law?
It's the same as any other profession. Though it's also important to acknowledge the distinction between a "licensed nutritionist" vs a "registered dietitian"...as the training and credentialing and work is very different for both.
For example: I wouldn't want just anybody deciding what goes in my tube feeding or IV bag (TPN)...I'd want someone with the appropriate training and experience.3 -
maureenseel1984 wrote: »Do you think the court for this one right? Do the libertarians have a point about qualified people having a monopoly?
Why stop there though? What about practicing medicine? What about practicing law?
It's the same as any other profession. Though it's also important to acknowledge the distinction between a "licensed nutritionist" vs a "registered dietitian"...as the training and credentialing and work is very different for both.
For example: I wouldn't want just anybody deciding what goes in my tube feeding or IV bag (TPN)...I'd want someone with the appropriate training and experience.
I see that as a pretty good comparison. If you are facing a legal issue, I can give you free advice about what you should do about it. That's my free speech. But if you were to hire me to give you legal advice about your case, it is appropriate for me to have a proper licensing and certification that qualifies me to give this advice. That doesn't mean that even with that certification I would give you good advice, but it at least puts some regulation that qualifies that I have some sort of background. I see the same with nutritional advice.
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I see that as a pretty good comparison. If you are facing a legal issue, I can give you free advice about what you should do about it. That's my free speech. But if you were to hire me to give you legal advice about your case, it is appropriate for me to have a proper licensing and certification that qualifies me to give this advice. That doesn't mean that even with that certification I would give you good advice, but it at least puts some regulation that qualifies that I have some sort of background. I see the same with nutritional advice.
^^^ Exactly.2 -
bmeadows380 wrote: »You are absolutely entitled to free speach. You can saw what ever you want.
You are not immune to the consequences of that free speech.
So yes, if you say things that are wrong and cause harm to others, you are not immune to the consequences of that. Such as court cases where you pay damages. Especially if you claim you are an expert and you aren't.
This ^^ my libertarian tendencies can get behind I'm not for laws that limit free speech, but completely agree that if you say something or claim something falsely that leads to harm for someone else, you should be liable for the consequences. Sort of keep it out of the criminal court and settle it in civil court.
Even here though - let's say they do get sued and judgement against them for say merely the medical bills - not even pain and suffering.
And they can't pay it. Or close that business entity the suit is against and don't pay it.
Then open another business right back up again.
The whole being liable bit is great in name, easily escaped in reality in too many places.
Seen that in some construction businesses, fly-by-night type. Even though registered/licensed/insured with some official agency - when the suit comes through, or too large to handle, the business closes officially and nothing to be done.
But person opens right back up under another name.1 -
Seen that in some construction businesses, fly-by-night type. Even though registered/licensed/insured with some official agency - when the suit comes through, or too large to handle, the business closes officially and nothing to be done.
But person opens right back up under another name.
Well when people are properly credentialed/registered/licensed, they can't just open up another practice...I mean compensation for any damage done/financial is one thing...it's another to go to jail. Look at medical malpractice-some doctors do go to jail depending on the case.1 -
NorthCascades wrote: »The other issue is that what recourse is available when the licensing body (the government) claims expertise and isn't held accountable? Can I sue the government for harmful information such as the food pyramid?
Licensing bodies are part of a representative government. What recourse is available changes somewhat from jurisdiction to jurisdiction. You have the right to vote against people who make bad appointments; if enough other people agree with you, well, you know how this works.
In order to sue, you need "standing" which means you have to show how you've personally been harmed by the food pyramid. Living in a world of fat people doesn't count.
The real question is why are we taking about the nuts and bolts of how democracy works in a thread about a shyster defrauding the public with $1,200 woo?
Representative government requires an informed populace. When the same body control the information the process is fatally flawed. Licensing prohibits innovation in favor of monopolies.
Regardless one cannot sue the government. Burden of proof is a moot point.
Is there evidence of fraud and woo peddling?
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People aren't informed enough to vote, but are informed enough to evaluate the knowledge and advice of people claiming to be professionals, and enter binding contacts???3
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NorthCascades wrote: »The other issue is that what recourse is available when the licensing body (the government) claims expertise and isn't held accountable? Can I sue the government for harmful information such as the food pyramid?
Licensing bodies are part of a representative government. What recourse is available changes somewhat from jurisdiction to jurisdiction. You have the right to vote against people who make bad appointments; if enough other people agree with you, well, you know how this works.
In order to sue, you need "standing" which means you have to show how you've personally been harmed by the food pyramid. Living in a world of fat people doesn't count.
The real question is why are we taking about the nuts and bolts of how democracy works in a thread about a shyster defrauding the public with $1,200 woo?
Representative government requires an informed populace. When the same body control the information the process is fatally flawed. Licensing prohibits innovation in favor of monopolies.
Regardless one cannot sue the government. Burden of proof is a moot point.
Is there evidence of fraud and woo peddling?
There are plenty of places around the world that don't have strict licensing of things. They are generally not places of cutting edge innovation brought on from freedom of regulation. They do tend to be filled with shoddily done work, scammers, and preventable deaths.
And of course you can sue the government. People sue the government and win all the time on things.
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