Occupational Licensing

A Mississippi Woman Gave Diet Advice Without a License. The State Threatened To Throw Her in Jail.

Mississippi has a reputation for being one of the most obese states in the nation, as well as having one of America's highest incarceration rates. Neither will be improved by treating unlicensed dieticians like serious criminals.

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Mississippi Department of Health officials threatened to turn Donna Harris' eight-week weight loss challenge into six months behind bars, but now the state stands accused of putting the First Amendment on a diet.

Harris, a personal trainer and fitness expert, has run a Facebook page since 2018 dedicated to encouraging healthy eating habits. Earlier this year, she launched a small side business, offering one-on-one diet coaching and weight loss tips to anyone willing to pay $99 to participate in an eight-week contest where participants could compete to shed the most pounds. Before it could even start, however, the state government shut it down.

On January 22, Harris received a cease-and-desist letter from the Mississippi Department of Health. Talking about healthy eating on Facebook and getting paid to do it, the department said, could trigger a $1,000 fine and up to six months in jail. In the eyes of the state, Harris was an unlicensed dietician—and apparently enough of a threat to public safety that she might need to be put behind bars.

"When I learned I would have to cancel my weight-loss class, I was devastated," said Harris in a statement. "People were counting on me and they were so excited about learning how to lose weight in a healthy way, and they were so disappointed when I told them I was not going to be able to go through with the program."

Harris wasn't pretending to be a licensed dietician. In fact, her Facebook page and website both specify that she isn't one. Anyone willing to pay her for advice on eating healthier was engaged in a voluntary transaction—one that has little to do with the state government's interests.

In a lawsuit filed this week on Harris' behalf, the Mississippi Justice Institute, a nonprofit law firm, argues that Mississippi's overzealous enforcement of its dietician licensing law violated Harris' First Amendment rights.

Aaron Rice, the group's director, is particularly galled by what happened when Harris asked the state what information she could legally provide without a license. She was told to stick to "government-approved guidelines, like the food pyramid," Rice says. "So you can engage in government-approved speech, but not non-government-approved speech?"

Getting a permission slip to speak freely about healthy diets is no easy task in Mississippi. It requires a bachelor's degree and more than 1,200 hours of supervised practice. Starting in 2024, the license will require a graduate degree. Harris actually has one of those—a master's degree in occupational therapy, to go along with her bachelor's degree in nutrition and food science—but not the one the state will soon require.

Mississippi is not the only state to require that dieticians be licensed, and this is not the first time a state has gone to extreme lengths to enforce its mandatory permission slip regime. In 2017, Florida Department of Health officials ran a sting operation to catch Heather Kokesch Del Castillo giving out unlicensed diet advice online. She, too, was threatened with jail time. A judge rejected a subsequent challenge to the state's dietician licensing laws brought on Del Castillo's behalf by the Institute for Justice, a libertarian law firm.

"Laws that restrict who can give dietary advice clearly implicate the First Amendment," says Paul Sherman, a senior attorney with the Institute for Justice. "If the government wants those laws on the books, it bears the burden of justifying them."

States get away with regulating all sorts of economic activity via occupational licensing laws, in part because of the so-called "professional speech doctrine," a legal practice in which courts have held that governments may limit or compel speech under the guise of regulating business activity. But the U.S. Supreme Court knocked down the professional speech doctrine in a 2018 ruling that overturned a California law requiring pregnancy centers to tell women where they could get an abortion.

Sherman says that the 2018 ruling—National Institute of Family and Life Advocates v. Becerra—was a "game-changer" that has caused lower courts to begin to grapple with how occupational licensing laws may run afoul of the First Amendment too. He predicts there will be more litigation in that space.

Rice notes that Mississippi has a reputation for being one of the most obese states in the nation, as well as one of America's highest incarceration rates—two things that won't be improved by treating unlicensed dieticians like serious criminals.

"Telling healthy adults what they should eat or buy at the grocery store is a freedom we all have as Americans," he says, "whether we are paid for that speech or not."

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  1. “If the government wants those laws on the books, it bears the burden of justifying them.”

    “Oh, very well. Those laws further a compelling government interest.”

    1. And that compelling interest is collecting fines to run government programs.

      Check and mate, First Amendment!

  2. Harris was an unlicensed dietician—and apparently enough of a threat to public safety that she might need to be put behind bars.

    Nah. The state just wants her money.

    1. And, with typical government foresight, they’ll make her pay the $1000 fine, and put her out of business, rather than just making her get an “Internet Guru” license for $500, and making up the rest (and more) by taxing the money she makes at it.

      1. It’s not about whether the state gets its money out of her specifically. It’s about making an example out of her so that everyone else obediently pays the $500 fee without a fuss.

    2. It’s more than just money. It’s also about enforcing government nutritional orthodoxy.

      Try to find a licensed dietitian who will support Atkins or other low-carb diets.

      1. Not had at all in New England. Seems to be the standard of care for diabetics.

      2. Exactly – From Commie Education to “knowledge” licensing. Our government has been working at monopolizing indoctrination for quite some time.

    3. Often it’s the result of government bowing to lobbyists who want to protect their own interests by creating barriers to entry, thus reducing competition. Jenny Craig company sells someone a weight loss diet and has no more interest or knowledge about an individual than their credit card number.

      If you can’t tell people to eat their veggies without a license, government regulation is off the charts.

      1. yuor first sentence tells the tale.

        HOW IS IT that government accross this land has stooped to listening to those with vested financial interests when they stump for putting chains on those not “in their club” who want to do anytning?

        The septic system installers lobby the state to mandate the new systems (far more complicated, less reliable, more expensive, less energy efficient, ) can ONLY be deisgned or installed by one of their Good Ol Boy members? Or Grandma nees a two thousand hour training course to braid her granddaughter’s friend’s hair? And pay fifteen hundred smackeronis to get her ticket to DO it? or must apprentice for two years and pay thousands in “contractor license fees” to paint someone’s fence, clean their gutters, (let alone repair or replace them), and so it goes….. this is not capitalism, it is fascism…. government control over private means of production. WHEN will someone with some clout call this spade a spade? And speaking of spades, youd better not take yours over to the neighbour’s place and use it over there, in trade for his coming to trim your trees….. both of you will be contracting without a license, bonding, insurance, worker’s compensation accont, state sales and excise tax accound…..

      2. I am a (very jaded) registered dietitian, and this is the problem with our field. It isn’t like audiology, occupational therapy, or speech pathology, which most people know nothing about and could not begin to provide appropriate advice or care for. We grow up learning about food and having it deeply ingrained in our culture. Everyone around us has advice (whether or not it is great or the full picture). Information is cheap and is everywhere these days, and we are a part of a dying field. This is the attempt of some of those in the industry to grasp on to whatever they have left, to try to stay relevant and marketable in some way, along with their attempt to require a master’s degree. The truth is, we are still the lowest paid of all health care professionals (the true average is $20/hr, whether you are clinical or wellness. I’ve never made much more than that and at times have made less. The $30 average the field lists is due to consulting and self-employment) because we don’t have that kind of value that OTs or PTs have that isn’t already part of the cultural collective. I don’t see a way that this will ever change, unless we shift the field to only being focused on clinical care.

        The other side of this is that if you are not a conventional dietitian and lean more toward holistic/integrative & functional advice like I do, you are terrorized by the organization and governing bodies as much as you would be if you were like this lady in the story, and they actively remove useful certifications like CLT from being claimed for continuing education credits. I no longer advise young people to go into the field, especially with the $15 minimum wage laws that are going into effect in many places.

    4. No, they are suffering from regulatory capture. The point is to reduce the supply of dieticians so as to increase what they get paid and to fill the universities with students.

      I am a licensed professional engineer, and I will tell you that the requirements go up every few years for those exact same reasons.

  3. Why can’t every boehm article be like this?

  4. *dietitian

    1. Thank you. Somebody had to say it.

  5. While much of the fitness industry is evil and junk science meant to prey on people’s desire for low effort self improvement, this aint it chief.

    The irony is rich when you consider how much bad diet/health advice the government’s churned out.

    1. The irony is that the feds admit the pyramid is wrong, because they “fix” it every 5 years.
      Anybody actually think the human body’s nutrition needs evolve so fast it is a 5 year cycle? The obesity epidemic started when the feds wrongly claimed fat to be bad, and every food processor in the country started putting in sugar to replace the flavor lost when the took the fats out.

      1. They also added trans fats to replace all the saturated fats we were told were evil. Turns out the trans fats are 100x worse, and all the studies that said saturated fat causes heart disease are getting retracted.

        But yeah, that old food pyramid with 12 servings of grain at the bottom directly resulted in a shitload of type 2 diabetes. We also refuse to ever let a corn farmer go out of business, so high fructose corn syrup is in everything now and that isn’t helping.

        1. HFC isn’t in everything as a handout to corn growers. It’s in everything because the handout to sugarcane growers is such that its cheaper to get sugar from corn than it is from sugarcane. Once again, government has solutions to problems that government created.

        2. not only is not helping it IS the one single factor in diabetes, obesity, (along with the fake “sweeteners”) liver and kidney issues, depression, cancer, and a few more things I’m too lazy to peck out just now. The corn farmers often get paid to NOT raise corn, but it is the sugar industry that lobbies for this, as they are extremely heavily invested in fake sweeteners, and processed ones as well. They don’t sell sugar, they sell “sweet”, real or pereived.

  6. …the state stands accused of putting the First Amendment on a diet.

    Booooo!

    1. “No, sir…they’re saying boo-urns.”

      1. lol. Senor Spielbergo

    2. The state stands accused of intermittent constitutional fasting?

  7. I confess a certain fascination with the picture, the way it’s cropped just above her eyes. Make her look sort of raccoonish, or maybe it’s like those Disney-style masked robbers of yore. I wonder if it was intentional cropping.

    1. I wonder if it was intentional cropping.

      Seen a lot of it recently. I assumed it was a subversion of copyright/facial recognition algorithms.

    2. What the hell kind of raccoons do you have around you?

  8. >>Talking about healthy eating on Facebook and getting paid to do it

    she did it on the webs and it’s not a federal crime?

  9. Mississippi has a reputation for being one of the most obese states in the nation

    Oh come on, pretty much every state west of Mississippi is much fatter.

    1. It’s not obese, that Louisiana/Arkansas border just makes its butt look big.

  10. So I can call someone in Mississippi ‘fat’, but I can’t tell them to eat better. Got it.

    1. Saying that 3 meals a day of fried catfish is unhealthy? That’ll get you jail time down there.

      1. I wouldn’t want to hear it either, fried catfish is delightful.

      2. Can I tell my granddaughter what she should eat to be healthy? I hope I haven’t been egregiously breaking some type of law; although, at 73 years of age, I’ve a pretty good idea ’bout what you should eat.

        1. Do you? Do you really? Or have you just gotten kind of lucky?

  11. 1,200 hours to tell people what to eat, 480 hours to be given a gun and qualified immunity as a cop. No wonder the state is a shithole.

    1. No wonder the state is a shithole.

      I’m not quite there yet, but I suspect in the near future, I’m going to start regretting the fact that Trump normalized the term ‘shithole’.

      1. I think it’s all the feces on CA streets that is normalizing the term “shithole”.

        1. No, it wouldn’t be nearly as much of a problem if San Francisco actually required the bums to put their shit in designated holes. Then Edward Shitshoveler could clean it up so much more easily.

          Shit holes would be a big improvement.

  12. “Anyone willing to pay her for advice on eating healthier was engaged in a voluntary transaction—one that ha$ little to do with the $tate government’$ intere$t$.”

    FIFY.

  13. Reason is all for your right to take heroin.

    When will they come out for a *general* right to buy medication and medical care from whom you choose?

    Or does that hurt corporate government enabled rent seeking too much?

    1. Shut up! Are you a doctor with a degree from a licensed medical school? I didn’t think so!

      1. Just kidding. Have fun and keep giving good advice.

    2. Uh, they’ve come out for that general right years and years ago.

      1. Citation?

        If this is their policy, why don’t we see it with every discussion of medical care?

  14. With a profession that is literally just speech, would they require her to get a license if she published a book? How about an audiobook or podcast?

  15. It’s not about whether the state gets its money out of her specifically. It’s about making an example out of her so that everyone else obediently pays the $500 fee without a fuss……… Read more

  16. You ever notice that all the ads for exercise equipment tell you to consult a doctor before beginning an exercise program, but fast food ads don’t have to say you should probably see a cardiologist before chowing your way into obesity?

    1. You make a valid point.

      1. That’s because the governments that are so goddamned fond of occupational licensing do not require one to get a ‘purveyor of junk food’ license…yet.

    2. You’re not going to drop dead of an unknown heart problem from eating one Big Mac.

      You can in a single session on a Bowflex.

      1. Both events are possible. Both are extremely unlikely. Both are none of the government’s goddamned business.

  17. Well when are they going to arrest our MOMs then?

  18. Its painfully funny that you can get thrown in jail for offering diet advice for money without a license – but telling fortunes seems to be a 1st Amendment protected activity.

    1. The last politician who suggested licensing fortune tellers just got thinner, and thinner, and thinner…

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  20. Mississippi is trying to reach #1 in obesity and this lady is hurting their chances.

    Also, totally would.

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  22. We need to stop quacks.

  23. Hard to believe government employees actually mail citations to people instead of giving it to them face to face. This was quite a learning experience, even for the government employees. They simple do not know how to deal with people who will competently stand up for their unalienable rights. Their incompetence becomes comical, actually.

    http://manfined1500forlookingforajob.blogspot.com/2011/12/man-fined-150000-for-looking-for-job.html

  24. Oh please. She’s a (presumably certified) personal trainer and she doesn’t know her certifying organization’s policy on scope of practice? Here is an excerpt from mine – and they drill it into you throughout their training:
    According to ACE’s statement, fitness professionals should not engage in the following actions:

    Offer individualized meal planning/recommendations
    Conduct a nutritional assessment to evaluate individual nutrient needs and status
    Make specific recommendations for intake or specialty diets
    Offer nutrition counseling
    Recommend nutritional supplements
    Promote oneself as a dietitian or nutritionist (unless specifically licensed)
    Performing any of the above, regardless of what the state law says, would be considered unethical and outside the scope of a fitness professional’s knowledge, skills and abilities.

    Every certified fitness professional knows this.
    And the government guidelines are just an example. It’s also perfectly OK to distribute general guidelines from professional societies, or published scientific literature. Don’t like it? Move to a state where no licensing is required, get the credential, or work within your scope of practice. I see she is also a licensed OT. Wonder if she would be OK with unlicensed people practicing occupational therapy if there were a shortage?

    1. Given the general effectiveness of medical licensing, you’re going to have a hard time convincing me that letting unlicensed people practice is any worse of an idea than what we currently have…

      https://www.ncbi.nlm.nih.gov/pubmed/28186008

    2. How the hell are you supposed to do the job of a personal trainer and NOT give nutrition advice? How do you handle the conversation when, six months into the personalized exercise regimen, your client is wondering why he hasn’t lost any weight and is still a sickly, fat, blubbery piece of shit? It’s beyond obvious that diet and exercise need to be planned together.

      Or is this just a way to make it impossible to be a personal trainer without getting a separate license to be a nutritionist?

      And also, would.

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  26. It’s about consumer protection laws, not free speech. The issue with providing information is that the type she offers is subjective and is thus considered advice. Advising someone without being licensed is a serious ethical issue.

    Finance is the same way. Should we be able to provide advice without licensing? I think so, but that’s how it used to be before decades of consumer protection laws. People didn’t feel adequately protected from bad advice, so like many other problems, they turned to the government, foolishly believing that government regs are any better a deterrent than the free market.

    What people can’t accept is that sometimes, you make a bad decision and get burned and you won’t get justice. That’s just how the world is.

    1. And the government wants her to give BAD advice: “government-approved guidelines, like the food pyramid.” That contributed to our obesity epidemic, and been a primary cause of the diabetes II epidemic.

      I suspect that the required training for the nutritionist license requires mainly listening to the pseudo-science that gave us the food pyramid for thousands of hours, then passing a test on it. IOW, the only thing that licensed nutritionist learned that is true is that you get fat when calories in averages more than calories burned – but not that a low-fat or low calorie diet will cause your metabolism to slow and burn less calories, nor that most “lite” foods replaced fat with sugar, winding up with a small calorie reduction – but often feeling like _much_ less, so people eat more of it – and a much higher risk of type II diabetes.

      1. The ethical issue is not what advice is gvien, but the fact it has been given. Advice will inevitably be bad regardless of who has provided it. Licensing guarantees accountability for the person giving advice.

        Show me the part of the Constitution where it says you can sue someone for being negligent and giving bad advice as a result. It doesn’t exist because we have 1A, so in a non-professional capacity, I can believe whatever I want and share my beliefs. What I can’t do is act in a professional capacity without proper certification. If I tried to tell someone in a professional environment that “I’m not a licensed financial adviser, but here’s what I think” I would be fired, face criminal penalties and fees, and FINRA might even ban me.

        The whole point of making someone become licensed is accountability. Certification is a safeguard against negligence. There is no perfect guarantee against negligence, but testing and certification eliminate some of the more common types and creates a professional standard and expectation of knowledge, commitment to principles, etc. That way, when something goes wrong and someone files a complaint, we have standards that help determine who should and shouldn’t provide professional advice.

        If your basis for approving/disapproving of advice is whether or not you agree with it, that’s a bad standard.

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