Unlicensed “health coach” claims health advice is free speech–court disagrees
arstechnica.com
arstechnica.com
What if the advice was obtained from a book that someone wrote, and that author lives in another state or country? Would it be treated differently if the author happened to reside in Florida?
It's cases like this that really shine a light on the inadequacy of local laws to deal with the new digital reality. Not only are a lot of the laws outdated, but I think many senior bureaucrats and elected officials drawing up the laws don't understand how people use technology (and abuse it), or where the technology is going.
Thought experiment: Why doesn't the government regulate all forms of advice for profit?
From the FAQs:
“Does the Dietary Guidelines promote a low-fat diet?
The 2015-2020 Dietary Guidelines does not encourage a low-fat diet (meaning low in total fats) — in fact its healthy eating style examples can contain up to 35% of total calories per day from fat.
Consistent with the previous edition of the Dietary Guidelines, the 2015-2020 edition encourages eating styles that emphasize unsaturated fats and are low in saturated fat. Specifically, the Dietary Guidelines recommends keeping saturated fat consumption to less than 10% of calories per day. This recommendation is based on scientific evidence that replacing saturated fat with unsaturated fats is associated with reduced risk of cardiovascular disease. However, it is important to note that replacing saturated fat with carbohydrates does not reduce the risk of cardiovascular disease.
Learn more about the difference between saturated and unsaturated fats and common sources of each.”
https://www.choosemyplate.gov/2015-2020-dietary-guidelines-a...
And because when it comes to health, it is highly regulated to avoid charlatans taking advantage of desperate people. This lady wasn't necessarily doing that, but who knows?
But that's not really the issue at hand. As the judge said, she's free to give out advice without chatging.
The fundamental issue is whether states have the right to set standards for professional services. And while there have been a number of exposés recently about how many states require ridiculous levels of certifications for low-level jobs (usually to the benefit of for-profit colleges and training programs), the law is clear that states do have this right, and I think most people would agree this is overall a good thing if excesses can be reined in.
IMO, I'd rather have laws that state that if you are in any of the licensed "advice professions", that if you aren't licensed you have to clearly and loudly proclaim your lack of certification in any marketing materials.
They'll wear it as a badge of pride: "I'm not one of those Government/Illuminati/... controlled certified advisors that must only sell you what Big Pharma tells them". And they'll find fools that glee over it.
On the other hand, their customers would get exactly what they're looking for, including non-certification.
As an (albeit) non-credentialed, but still deeply research and evidence-based nutritionist and health enthusiast, I can tell you that you’re deeply, exquisitely wrong. The link between high glycemic variability and almost every case of chronic disease is so well-established at this point that the only people that don’t know about it are the average layperson reading the news or fitness magazines for their nutrition advice, of which cohort you seem to have placed yourself.
As an Ironman athlete, I intake between 1-200 grams of carbs a day, but most of them rank very low on the glycemic index. Most high carb diets are replete with high glycemic grains, breads, and pastas that are not only oxidatively stressful on our guts and bodies, but deleterious to health in the long term.
Do your research.
(WHO) Global Strategy on Diet, Physical Activity and Health (DPAS): - Not more than 30% of the total calories should come from fats. - Eat at least 400 grams of fruits and vegetables per day IN ADDITION to grains, potatoes and and other starchy roots.
(USDA) Nutrition Evidence Library. A series of systematic reviews on the relationship between dietary patterns and health outcomes. Alexandria, VA: U.S. Department of Agriculture, Center for Nutrition Policy and Promotion, March 2014. - "The major findings regarding sustainable diets were that a diet higher in plant-based foods, such as vegetables, fruits, whole grains, legumes, nuts, and seeds, and lower in calories and animal-based foods is more health promoting"
Harvard School of public health have a great summary of recommendations with sources at https://www.hsph.harvard.edu/nutritionsource/healthy-eating-... - 50% Vegetables & fruit - 25% grains - 25% protein - Fat in the form of plant oils, in moderation
"But there was a study..."
You see that's the thing with research: It's hard. And very easy to misrepresent with cherry picked data. That's why actual dieticians are required to undergo formal training to learn how to correctly interpret scientific results. And why guidelines are based on carefully conducted systematic reviews by subject matter experts like the above.
"But, but, Joe Rogan... and Dave Asprey... and Tawnee..."
I know. They're full of shit. Don't be scared of carbs.
"But I lost 20 kg on keto"
After the initial six months of reduced water retention, there is no advantage of low carb over low fat diets. Systematic reviews show that the field is plagued by publication bias on this topic with low quality meta analyses favoring low carb diets while high quality meta analyses don't find any difference. (e.g. Churuangsuk et al 2018, Obes Rev 19).
"But glycemic index..."
You seem a bit confused about what this is and what it is used for. If you are trying to say that sugar is bad then yes this is true to some extent, especially for sedentary people, but it depends a lot on the type of sugar consumed e.g. you'd be hard pressed to find a registered dietician recommending against eating sweet fruit which has a relatively low effect on insulin levels and comes packed with other good nutrients. Regardless, this does not preclude a healthy high carb diet.
Not that I'm under any illusion that you'll let systematic reviews by the world's most trusted institutions sway your opinion, but to anyone else reading: please do consult reputable sources for dietary guidelines and be wary of overblown claims from amateur "health enthusiasts".
I like doctors to be licensed. I'm normally anti-regulation, but this is an exception.
The real issue here is the onerous occupational licensing requirements in Florida. To be a nutritionist in Florida, you need a degree and 900 hours of work. That's far too much.
Occupational licensing has become a way for an industry to form a cartel. It's a major public policy problem, and the IJ is right to take it on. They've fought against it in a great many cases and had some success.
Unfortunately, though, the First Amendment is a blunt tool and doesn't work very well in this particular case. I wish they had a better tool.
I think this is a category error. People want doctors to be licensed because they perform medical services. A surgeon or anesthesiologist who screws up can easily kill you. Doctors have the authority to prescribe certain controlled substances that are addictive or fatal in the wrong dosages.
The damage "doctors who merely give advice" can do is coterminous with the damage random bloggers can do.
no need to prove that the regulation actually helps, no need to prove that the worker caused harm
I suppose health services being in a category of their own is quite sensible. Losing one's savings to a psychic doesn't have the same mortal consequences as health-coach advice that could kill you.
Determining what is legally fraud in these situations are typically done case-by-case, like here: https://www.cnn.com/2019/03/07/world/maria-duval-scam-crimin...
...yet?
Because then the First Amendment does take precedence.
On the one hand we have courts upholding copyright against First Amendment challenges because copyright enables that speech since it might otherwise not be funded, and "money is speech" in campaign finance, and striking down Son of Sam Laws.
On the other hand we have that commercial speech is less protected. But the central example of that is advertising. You can't use somebody's likeness without their permission in your advertising, even if you can in your criticism of them, because it's commercial speech.
But paying somebody to give you information/advice is much more like the first category of cases than the second, isn't it?
How would Hacker News respond if instead this health consultant was primarily giving out advice that vaccinations cause autism, and that her nutritional advice was in fact how to avoid the need for vaccines ?
Remember, the Bill or Rights isn’t a granting of rights, it’s a restriction on the government to not infringe on the rights we are born with and which are inalienable.
Human nutrition is not a science for the simple reason that it is not possible to subject it to the scientific method. It is unethical and impractical to divide humans up randomly and feed them different diets to observe the outcome. The NAZIs tried stuff like this, but we have tended to discount their results because the data was obtained under deplorable circumstances.
The result is that we don't really know definitively what should compose the human diet. State governments and academic institutions cover up this fact with an avalanche of highly-suspect papers and degrees and training and certification.
Unfortunately, most of the research and regulation of human nutrition is subject to interference by economic lobby groups like the dairy industry and the wheat producers.
Influence and bias tend to inform the licensing process for nutritionists. Science has little to do with it.
Even worse, the state licences a lot of so-called health professionals whose disciplines have even less to do with science than nutritionists: chiropractors, naturopaths, and homeopaths.
Just because we dress something up with training and a license does not mean that it is valid.
Anyone who wishes to challenge these unfounded and biased, but deeply ingrained, systems will have a hard time.
In a just world, only disciplines with a sound scientific basis would be regulated by the state because it is impossible for the state to know whether a licensed, but unscientific, nutritionist is creating more or less harm than this unlicensed, but probably well-meaning, woman.
There is literally no case in which I’m willing to accept some self taught doctor, so why wouldn’t we want licensing?
"This was the fourth known death linked to breatharianism and Jasmuheen's books since the practice emerged in the early 90s."
Unlicensed nutrition advice ("eat and drink nothing") causing actual harm ("death") to anyone anywhere ever ("fourth known death")
That's a popular tactic to bind resources while at some point getting something that went "undisproven". I'm not interested in playing that game in general, but this particular instance was just too amusing to not react to it.
Because if you have to prove something is true before the law allows you to do it, you are prohibited by law from proving it is true until after you have proved it is true.
But if you really must have some direct story, here's a bunch of idiots who tried to extract all of their nutrition from the air: https://culteducation.com/group/848-breatharianism/3269-thre...
(edit, amused that someone else posted a link to the same random, whacko movement. It does highlight the difficulty in finding evidence for what are otherwise rapid, vanishing fad diets)
Colloidal silver is suspected to lead to kidney damage, but it's much less conclusive. I'd also call "you turn into a smurf" enough harm to count, but I didn't want to argue semantics.