Introduction

For  decades, Mary Jackson has worked as a lactation consultant, teaching countless mothers how to breastfeed their babies. Mary holds certification with the Academy of Lactation Policy and Practice. She works at Atlanta’s Grady Memorial Hospital and is a recognized expert on breastfeeding and has taught doctors, nurses and medical students. But that didn’t stop the state of Georgia from trying to put her and over 800 other lactation consultants out of work when in 2016 it enacted a new occupational licensing scheme. Suddenly, only consultants who hold a different certification, that of the International Board of Lactation Consultant Examiners, were allowed to practice. ¹

Instrumental in lobbying for the scheme was the United States Lactation Consultant Association, the professional association for International Board Certified Lactation Consultants. In a 2014 newsletter, the association told members, “One very important benefit of your USLCA membership that might be overlooked is continuously representing you and raising awareness of the IBCLC with policy makers and elected officials. . . .The USLCA’s advocacy efforts are constantly going on, [m]any times behind the scenes, to help each of you have a more prosperous career as an IBCLC.” ² The newsletter also boasted that licensure legislation was in the works in several states and had been introduced in Georgia. ³

Slated to go into effect in 2018, but on hold pending the outcome of a lawsuit, ⁴ Georgia’s lactation consultant license demands roughly two years of college courses and more than 300 hours of supervised clinical work, among other prerequisites, and the penalty for noncompliance is a $500 fine for each violation. ⁵ To meet those requirements, Mary and others like her would have to stop working and spend hundreds of hours and thousands of dollars learning to do what they already know how to do. They would be poorer as a result. So, too, would Georgia mothers and babies, who would be left with far fewer lactation consultants to serve them. Those better off would be existing IBCLCs, who, with less competition, would find themselves more in demand and therefore able to command higher pay. ⁶

No other state licenses lactation consultants the way Georgia does—and only three other states license lactation consultants at all. ⁷ Not only that, but the Georgia Occupational Regulation Review Council recommended against licensing lactation consultants in December 2013, saying it “would not improve access to care for the majority of breastfeeding mothers.” ⁸ In what is known as a “sunrise review process,” GORRC, a joint legislative-executive agency, is charged with reviewing bills proposing new occupational regulations and evaluating whether and how to regulate an occupation based on statutory criteria. These criteria include whether unregulated practice threatens public health or safety and whether the public could be protected by other means. ⁹

Georgia is one of 22 states whose laws provide for sunrise reviews and one of 15 that regularly produce sunrise reports or have done so in the past. ¹⁰ Sunrise reviews are intended to ensure new licenses and other occupational regulations are enacted only when necessary to protect the public—not to protect the interests of occupational lobbies such as the USCLA. These lobbies often see licensure as a way to improve their professional stature or to deliver economic benefits from limited competition. ¹¹ To counter these lobbies’ influence, sunrise reviews subject regulation requests to an independent, nonpolitical process to assess the possible harms from an occupation, whether regulation would mitigate those harms, and the regulation’s costs and benefits. States first enacted sunrise review processes in the mid-1970s, at the same time policymakers were growing concerned about occupational overregulation. ¹²

Since then, recognition has grown that occupational licensing imposes substantial costs on workers, consumers and the economy, ¹³ even as licensing itself has expanded: Where 1 in 20 workers was licensed in the 1950s, that number now stands at about 1 in 4. ¹⁴ As licensing has grown and recognition of its problems has become widespread, reformers have become increasingly interested in sunrise as a way to slow licensing’s growth and ensure new licenses and other occupational regulations are necessary, targeted to real harms and no more restrictive than necessary to protect the public. ¹⁵

This study is the first comprehensive examination of sunrise laws and reviews. Our research proceeded along two lines. First, we identified 15 states with sunrise laws that have also produced sunrise reports, and we reviewed their laws for commonalities and differences. And second, we gathered as many sunrise reports as possible from the states, identifying recommendations made and eventual legislative outcomes. In all, we gathered 397 reports covering 494 separate reviews of 208 unique occupations.

Our examination of the reports confirmed occupational insiders—not consumers—overwhelmingly drive regulation, and they most often seek licensure, not less restrictive regulation. Even so, sunrise reviews most often recommend against licensure, suggesting independent review can weed out licensure proposals that may not serve the public good. And after sunrise review, legislatures most often decline to enact licenses—though they enact them more often than recommended.

These findings suggest sunrise processes may thwart or at least slow down some licensing proposals not warranted by threats to the public. But more important, they show why lawmakers ought to greet licensing proposals with healthy skepticism. Most come from motivated parties who may put professional status or economic gain ahead of sound policy. And when subjected to scrutiny, licensing proposals tend to fall apart. Despite the claims of occupational lobbies, 30-plus years’ worth of sunrise reviews suggest licensing is often not the answer.