Do adults have the right to talk to other adults about what to buy at the grocery store? That’s the question raised by a federal lawsuit filed by the Institute for Justice on behalf of Florida-based health coach Heather Kokesch Del Castillo.
In 2014, Heather left an unfulfilling career to found Constitution Nutrition, a business that specializes in providing one-on-one health coaching for paying clients. As a privately certified health coach, Heather operated successfully and without complaint—first in California and then in Florida—for nearly four years. But in May 2017, Heather was forced to shut down completely, after a licensed dietitian filed a complaint with the Florida Department of Health alleging that Heather was engaging in the unlicensed practice of nutrition/dietetics.
Although Heather has never held herself out as a licensed nutritionist or dietitian, the Florida Department of Health slapped her with an order to cease and desist providing nutritional advice and demanded that she pay over $750 in fines and costs. She would have to spend years of her life and thousands of dollars getting a degree and in training to become a licensed dietitian. Without any realistic options, Heather did as the state ordered and shut down. And she has been turning away willing clients ever since.
Unfortunately, Heather’s situation is not unique. Occupational licensing boards are increasingly operating as special-interest censors, while licensed practitioners—eager to keep out would-be competitors—often scour advertising spaces in search of people to file complaints against. And this problem is particularly acute for military families like Heather’s, for whom frequent moves often lead to conflict with state licensing boards.
But this sort of censorship cannot be squared with the First Amendment. Advice about what people should eat to stay healthy is as old as language and the government has no power to give any group a monopoly on advice about such a common, everyday topic.
That’s why Heather is fighting back. On October 3, 2017, Heather joined with the Institute for Justice to file a lawsuit in the U.S. District Court for the Northern District of Florida to strike down Florida’s unconstitutional restrictions on who can give safe dietary advice that customers want to buy. Together, Heather and IJ will vindicate her right—and the rights of all Floridians—to offer nutrition advice and health coaching without the fear of being prosecuted or shut down by the government.
In July 2019, a federal district judge issued a ruling on cross-motions for summary judgment which upheld the licensing requirement on the basis that Heather’s advice was “conduct” not “speech” and therefore was exempt from First Amendment protections. IJ plans to appeal the decision.
Plaintiff's Motion for Summary Judgement
State of Florida's Motion for Summary Judgment
Plaintiff's Response to State's Motion for Summary Judgment
State Response to IJ's Motion for Summary Judgment
Reply in Support of Plaintiff's Motion for Summary Judgment
U.S. District Court for the Northern District of Florida Opinion
Appellant's Petition for Rehearing En Banc
Heather Kokesch Del Castillo and Constitution Nutrition
Heather had never dreamed of being a health coach while in school. But like many people just a few years out of college, she found herself in an unfulfilling career and began to question whether she was following her true passion. Unsatisfied with her physical fitness, Heather, a former varsity athlete, decided to join a local gym and make fitness a priority in her life again.
It changed her life. Within a short period of time, Heather felt better than ever before. And through her gym, she developed a network of supportive friends who introduced her to new ways of thinking about exercise, health and nutrition. Armed with this information, Heather left her stagnating career behind and decided to return to school to pursue her new passion of a career in holistic health and wellness.
Although she already had a college degree, Heather studied with the Institute for Integrative Nutrition, a New York City-based school that specializes in training people to become holistic health coaches. After a year of studying diet and nutrition, Heather graduated from her program with a credential as a privately certified health coach. Soon after, Heather was eager to “to pay it forward” by helping to change people’s lives in the way that others had helped her change her own. So she founded Constitution Nutrition in Monterey, California, with the goal of helping her clients eat better and feel better.
At first, Heather was hired by mostly local clients, with whom she interacted face-to-face. Then, as business grew, Heather made use of services like Skype or Google Hangouts to communicate with a growing number of out-of-town clients—some from as far away as New York. But regardless of whether she was consulting with her clients in person or via the internet or phone, Heather always focused on working with each client to create an individualized diet and exercise plan meant to help them achieve optimal wellness.
For many of Heather’s clients, the results they achieved were nothing short of life-changing. Satisfied customers sang her praises with five-star reviews on Internet ratings sites like Yelp, and many others told friends and family about their positive experience with Heather and Constitution Nutrition. In a short period of time, Heather was serving clients not just in her local Southern California community, but nationwide. So when Heather’s husband, a military officer, was transferred to Eglin Air Force Base in Fort Walton Beach, Florida, in 2015, Heather planned to continue operating Constitution Nutrition after the move.
And at first, Heather did just that.
Florida’s Unconstitutional Censorship of Constitution Nutrition
In March 2017, Heather received an email from a man named Pat Smith inquiring about her services. Mr. Smith said that he’d seen her website and liked what he saw, and that he’d tried several weight loss programs to no avail. Then he asked what information she would need from him to personalize a weight loss plan and what her program would include.
Heather responded, but heard nothing back until May 2, 2017, when an investigator from the Florida Department of Health arrived at her house to serve her with a cease-and-desist letter ordering her to stop giving dietary advice and fining her $754. It was then that she learned that Pat Smith was an investigator from the Florida Department of Health and that his email to her had been part of a sting operation prompted by a complaint filed by a licensed dietitian.
Under Florida law, offering individualized dietary advice to paying customers requires permission from the government in the form of a dietetics/nutrition license. In order to earn a dietitian license, a person must: earn a bachelor’s degree with a major in nutrition or a related field, complete 900 hours of supervised practice, pass a dietitian exam, and pay fees from $165-$290. The unlicensed practice of dietetics or nutrition is a first-degree misdemeanor punishable by up to a year in jail and $1,000 in fines per offense. The Department of Health has the separate authority to seek civil fines of up to $5,000 per day for each day that a violation occurs. Heather wasn’t willing to run that risk. And since the only other alternative was to become a fully licensed dietitian/nutritionist—a process that would take years and cost tens of thousands of dollars—Heather had no choice but to close her business.
Occupational Licensing: A National Problem That Disproportionately Hurts Military Families
Heather’s story isn’t unique; what happened to her is part of a nationwide trend caused by the explosive growth of occupational licensing. In the 1950s, only about one in 20 American workers needed a government-issued license to lawfully do their job. Today, that figure stands at roughly one in four.
The burdens of occupational licensing laws are particularly harsh on military families like Heather’s. When the U.S. military relocates service members from one state to another, their spouses are often subject to new licensing laws that didn’t exist in their previous state of residence, and their existing professional credentials often aren’t transferable to their new state.
Occupational licensing has become such a burden to military families that the Obama Administration published a study decrying its harmful effects. As the report detailed, in a given year, military spouses are 10 times likelier than civilians to move across state lines. And as if the stress of frequent relocation weren’t already enough, it is further estimated that about 35 percent of military spouses work in fields that require state licenses or certification. Taken together, the White House report explained, these burdens create harmful inefficiencies in the labor market because workers are unable to transition easily into the jobs in which they are most productive.
Heather knows these burdens all too well. Before she moved to Florida, she was able to freely and successfully operate Constitution Nutrition without needing to bother with a dietetics or nutrition license. In California, no such license even exists. It was only after Heather moved to Florida, because of her husband’s faithful service to the country, that running her popular business suddenly became a crime.
The First Amendment Protects Heather’s Speech
But the cease-and-desist letter Heather received is more than just another example of occupational licensing run amok—it is also a violation of the First Amendment, which is why Heather has teamed up with the Institute for Justice to challenge the law. The advice Heather offers is pure speech, no different from the constitutionally protected speech of the cookbook authors whose philosophies and recipes she recommends to her clients. In fact, under Florida law, it would be perfectly legal if Heather published her advice in a book. And under binding Supreme Court precedent, laws that restrict speech based on its subject matter are subject to the most rigorous level of constitutional scrutiny. Moreover, the Supreme Court has repeatedly held that the mere fact that a person is paid for their speech has no effect on its level of constitutional protection.
In this case, there is no possibility that the state of Florida can satisfy the highest level of constitutional scrutiny. Dietary advice is ubiquitous in America, and always has been. Such advice was commonplace when the First Amendment was drafted; indeed, in his celebrated autobiography, Benjamin Franklin recounts advising and convincing a friend to adopt a vegetarian diet to improve his health, assuring him “that he would be the better for it.” And today there are thousands of books, blogs and television programs devoted to the subject. In this area, as in most areas of life, the First Amendment protects the right of listeners to decide for themselves which speakers are worth listening to.
Unfortunately, lower courts have been inconsistent in applying Supreme Court precedent when occupational licensing laws burden speech. Some courts have held that the First Amendment provides almost no protection against occupational licensing laws, while others have found that the Supreme Court provides quite robust protection. Heather’s lawsuit thus provides an opportunity to clarify one of the most important unresolved questions in First Amendment law and to protect speakers in a variety of occupations throughout the state of Florida.
Heather Kokesch Del Castillo is a resident of Fort Walton Beach, Florida, which is located just outside of Eglin Air Force Base in the Florida Panhandle.
The Defendant is Celeste Philip, MD, MPH, Surgeon General and Secretary of the Florida Department of Health, who is sued in her official capacity.
Heather’s case raises a single claim under the First Amendment, seeking to vindicate the right to provide direct, individualized advice to a willing recipient on basic matters of diet and nutrition.
The Litigation Team
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for First Amendment rights and economic liberty. IJ has challenged efforts to use occupational-licensing laws to silence speech by a Paleo-diet promoting blogger in North Carolina; a retired veterinarian in Texas; a psychologist in Kentucky; interior designers in Connecticut, Florida, New Mexico and Texas; and tour guides in New Orleans, Philadelphia, Savannah and Washington, D.C. IJ also currently represents a mathematician in Oregon and a makeup artist in North Carolina.
Economic Liberty | First Amendment | Occupational Licensing | Occupational Speech
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