Reason | Jan 20, 2021 | 0
Judge Rules Florida Can Require a License To Give Out Diet Tips
Want to make money giving out diet tips? In Florida, you’ll have to get a bachelor’s degree and a state license to tell people how to eat better. A federal judge has upheld the Sunshine State’s occupational licensing program that censors diet coaching by those who are not officially deemed dieticians.
The case, brought by the liberty-loving and oppressive-occupational-license-fighting lawyers of the Institute for Justice, revolved around the work of Heather Kokesch Del Castillo of Fort Walton Beach. Del Castillo was applying her training from an unaccredited online holistic health program, offering six-month coaching programs to clients for pay. But she is not a licensed dietician in Florida, and when the state found out about her work, they accused Del Castillo of practicing dietetics without a license and threatened her with hundreds of dollars in fines if she didn’t stop.
With the help of the Institute for Justice, Del Castillo fought back, arguing in court that this licensing demand violated her First Amendment rights to free speech. Unfortunately for her, Judge M. Casey Rogers of the U.S. District Court for the Northern District of Florida disagreed and tossed her case. Rogers concluded that current court precedents have determined that it’s not an unconstitutional abridgment of free speech rights to require an occupational license to earn a living talking about certain issues, “so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.”
Rogers turned to a court ruling from Locke v. Shore, another case from Florida from 2011 in which a federal court ruled that it’s legal for the state to require that interior designers get licensed to legally practice their craft.
Lawyers from the Institute for Justice argued that subsequent court rulings have weakened Locke, particularly a Supreme Court ruling from 2018, NIFLA v. Becerra, that addressed whether California could require pregnancy centers to carry notices indicating whether or not they were licensed and, if they were licensed, requiring the centers to post notices informing women of the availability of free or low-cost services, including abortions. The Supreme Court ruled that these speech demands were unconstitutional. In the writing of the majority opinion, Justice Clarence Thomas noted, “Speech is not unprotected merely because it is uttered by ‘professionals.’ This Court has ‘been reluctant to mark off new categories of speech for diminished constitutional protection.'”
Rodgers didn’t find that argument applicable here. Florida wasn’t telling Del Castillo what she could or could not say or what she must or must not say. She could give all sorts of nutrition advice out for free. But in order to earn a living giving advice, she needed to get a license, and Florida made the case that there are valid public health reasons for having such a law. Rodgers wrote, “Notably, it is, at the very least, reasonably conceivable that the unlicensed practice of dietetics could lead to improper dietary advice from unqualified individuals, which in turn could harm the public.”
The combination of rulings creates a bit of an odd outcome. Florida can require that Del Castillo get the appropriate degree and pay the appropriate licensing fees in order to legally give out nutritional advice, but it’s not clear that they could tell her what kind of nutritional advice she could give. There might be no difference between the advice she gives now and the advice she might give with a degree and an occupational license. A diploma and a license won’t actually prevent Del Castillo from giving out “improper dietary advice.” Heaven knows the government itself often gets nutritional advice completely wrong.
Lawyers from the Institute for Justice expressed dismay at yesterday’s ruling and promised to appeal.
“The court held that talking with a person about their diet isn’t speech, it’s the ‘conduct’ of practicing dietetics,” said I.J. Attorney Ari Bargil. “The Supreme Court has squarely rejected that sort of labeling game. Giving advice on what an adult should buy at the grocery store is speech, and the First Amendment protects it.”
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