"RALEIGH — In North Carolina, it is illegal to give one-on-one dietary advice without a license. The libertarian public interest law firm Institute for Justice yesterday filed a lawsuit challenging that law.
The law attracted national attention last month when Carolina Journal online reported of a blogger being censored by the state nutrition board.
Charlotte-area resident Steve Cooksey started a blog — Diabetes-Warrior.net — about his victory over diabetes using the high-protein “Paleo” diet. After attracting thousands of followers, Cooksey started a Dear Abby-styled online advice column, in which he answered readers’ questions about controlling diabetes through diet.
About a month after starting the column, Cooksey got a call from the North Carolina Board of Dietetics/Nutrition telling him the advice column and other advice-like language throughout his blog were illegal. Also illegal, said the board’s director, was a motivational life-coaching service, in which Cooksey offered personal support to people trying to transition into the “Paleo” lifestyle.
The director told Cooksey if he continued to offer dietary advice, even if it was free, the board could file an injunction against him to make him stop. If he continued to give advice after that, he could be convicted of a misdemeanor, forced to pay thousands of dollars in fines, and serve up to 120 days in jail.
Unwilling to face those consequences, Cooksey has discontinued his advice column and removed the link to his life-coaching service.
Cooksey maintains that he should be allowed to offer dietary advice even though he is not a licensed dietician and that by prohibiting him from doing so, the board is violating his freedom of speech.
The Institute for Justice agreed and decided to take his case pro-bono. In a press release issued yesterday, the institute said the lawsuit “seeks to answer one of the most important unresolved questions in First Amendment law: When does the government's power to license occupations trump free speech?”
While North Carolinians are free to talk or write generally about diet, they cannot, under the law, give anyone personal dietary advice, said Cooksey’s lawyer Jeff Rowes, a senior attorney for the Institute for Justice.
“So I could publish a book or blog post that says I think Paleo is great for the human race; everyone should do Paleo,” Rowes said. “What you can’t do under the statute is give anyone personal advice.”
“So if you said to me ‘hey, what do you think of Paleo?’ And I said ‘I think it’s awesome.’ And then you said ‘I’m trying to fit into my wedding dress. What foods should I eat that will help me get there?’ At that point, I’m giving you personal dietary advice. That is illegal.”
To the board, giving one-on-one advice is not protected speech, but speaking in general is, Rowes said. “But for normal people, who have friends or blogs or advice columns, giving advice is just a normal, historically protected part of free speech.”
He said the purpose of the lawsuit is to ensure advice remains a protected part of free speech, “even advice in areas where people sometimes have specialized occupational licenses.”
In a case briefing on its website, the Institute for Justice argued, “the danger posed by excluding advice from the First Amendment will only grow as more and more occupations become subject to government licensure.”
One in three American workers needs a government-issued license to do his job today, compared to one in 20 in the 1950s, the briefing said.
“The growth of occupational licensing coincides with the growth of the Internet as an unprecedented source of information and advice for ordinary people,” it continued.
“Millions of Americans use blogs, social media, and other online venues to seek and receive advice about topics such as parenting, pregnancy, marriage, and other serious issues. Under the state board’s logic, anyone who responds to a mother seeking specific advice about her teething baby is engaged in the unlicensed practice of pediatric medicine.”"