Pensacola, Fl.—In a blow to entrepreneurs across the Sunshine State, a federal judge yesterday upheld a Florida law that gives state licensed dietitians and nutritionists a monopoly on giving individualized dietary advice. The ruling means that privately certified health coaches like plaintiff Heather Del Castillo can face up to a year in jail or $1,000 in fines, per violation, merely for giving adults advice on diet and nutrition.
Like a growing number of Americans, Heather Del Castillo speaks for a living. As a privately certified health coach, she is passionate about diet and nutrition, and loves sharing her knowledge with customers from across the country. But when Heather’s airman husband was transferred from California to Florida in 2015, she learned that her business was illegal. That’s because Florida, unlike California, had granted a monopoly on individualized dietary advice to state-licensed dietitians and nutritionists. To offer her services in Florida, Heather would have to obtain a bachelor’s degree or graduate degree in a relevant field of study, complete 900 hours of supervised practice, pass a licensure exam, and pay a fee of $165.
“What I do is no different from what an author or an advice columnist does,” said Heather. “The government couldn’t require me to get a license to write a book about nutrition, so I don’t see why they should require me to get a license to give people that same advice in person or over the Internet.”
Joining with the Institute for Justice, Heather filed a federal First Amendment lawsuit in 2017 challenging this restriction on her speech. But yesterday, Judge Casey Rogers of the U.S. District Court for the Northern District of Florida rejected that lawsuit and upheld Florida’s monopoly on dietary advice. In rejecting Heather’s claim, the Court reasoned that the licensing requirement did not violate the First Amendment because “its impact on speech is merely incidental to the state’s lawful regulation of the occupation of dietetics.”
“The court held that talking with a person about their diet isn’t speech, it’s the ‘conduct’ of practicing dietetics,” said IJ 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.”
The district court held that it was bound by an earlier decision of the 11th U.S. Circuit Court of Appeals that held that speech by “professionals” was entitled to reduced First Amendment protection. But as the Institute for Justice argued, the U.S. Supreme Court expressly rejected that argument just last year, holding that “speech is not unprotected merely because it is uttered by professionals.”
IJ Senior Attorney Paul Sherman said, “For decades, occupational licensing boards have acted as if the First Amendment doesn’t apply to them. Last year, the Supreme Court clearly and emphatically rejected that argument. Yesterday’s ruling is wrong on the law, and we will be appealing.”