Wednesday, June 10, 2020

Florida law against unlicensed dietary advice challenged in federal court

Posted By on Wed, Jun 10, 2020 at 11:00 PM

click to enlarge Heather Kokesch Del Castillo - PHOTO VIA INSTITUTE FOR JUSTICE
  • Photo via Institute for Justice
  • Heather Kokesch Del Castillo

Weighing arguments about the First Amendment and government regulation, a federal appeals court Thursday will take up a dispute about the constitutionality of a Florida law that restricts unlicensed people from giving dietary advice.

Panhandle resident Heather Kokesch Del Castillo, backed by a national libertarian legal group, challenged the law after the Florida Department of Health cited her in 2017 for getting paid to provide dietary advice without being a state-licensed dietitian or nutritionist. Del Castillo ran what court documents describe as a “health-coaching” business that included providing advice about what to eat.

A federal district judge last year rejected Del Castillo’s challenge to the law, spurring an appeal to the 11th U.S. Circuit Court of Appeals. Del Castillo’s attorneys contend the advice she has given is protected speech under the First Amendment and is allowed in many other states.

“Here, the Department (of Health) has produced no evidence that one-on-one dietary advice poses any different risk from the virtually endless supply of dietary advice available in books, on television and online,” Del Castillo’s attorneys from the national Institute for Justice wrote in a brief at the appeals court. “The department has produced no evidence that, as a result of licensure, Floridians are any healthier than Americans in the 25 states that do not license the practice of dietetics.”

But Attorney General Ashley Moody’s office, representing the Department of Health, said unlicensed people are free to give dietary advice if they are not paid for it. In a brief, the state said licensing standards to practice dietetics and nutrition counseling are designed to protect public health and safety.

“The Florida Legislature crafted the (law) to protect the public health and safety by requiring those who would practice dietetics and nutrition counseling to meet certain educational and clinical standards and to obtain and maintain a license reflecting their competency,” the state’s brief said. “In so doing, the Legislature carefully balanced the rights of unlicensed individuals to speak freely to individuals, to conduct classes or seminars or give speeches to groups, or to blog or write books on the topic of diet and nutrition.”

A three-judge panel of the federal appeals court is slated to take up the case Thursday during a hearing in Jacksonville.

The arguments come as Gov. Ron DeSantis and members of the Republican-controlled Legislature look to trim regulations on many types of professions. The House and Senate passed a wide-ranging deregulation bill in March that includes changes related to dietary advice.

The bill (HB 1193) had not been formally sent to DeSantis as of Wednesday morning, but it would offer at least a partial avenue for unlicensed people to provide dietary advice. The bill, in part, would allow unlicensed people to get paid for such information so long as they do not “represent or imply that they are a dietician, licensed dietitian, registered dietitian, nutritionist, licensed nutritionist, licensed nutrition counselor, or use any other term or symbol that implies the they are a dietitian, nutritionist, or nutrition counselor,” a House analysis of the bill said.

The state had 5,413 licensed dietitians and nutritionists during the 2018-2019 fiscal year, according to the House analysis.

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