Caveman Blogger Has Procedural Win on Appeal of First Amendment Case on Unlawful Nutrition & Dietetics Charge

The 4th Circuit Court of Appeals in Cooksey v. Futrell has weighed in on the fate of the “caveman blogger.”Recall that in this case, the caveman blogger sued the North Carolina Board of Dietetics and Nutrition, alleging that the board violated his First Amendment rights by causing him to self-censor certain speech on his Internet website wherein he offered both free and fee-based dietary advice to website visitors. The United States District Court for the Western District of North Carolina, dismissed action for lack of standing, after adopting the report and recommendation of David S. Cayer, United States Magistrate Judge. The caveman blogger appealed.

The 4th Circuit held that:

(1) Caveman Blogger’s speech was sufficiently chilled to show First Amendment injury-in-fact;

(2) Caveman Blogger’s speech subjected him to credible threat of criminal penalties, and thus constituted First Amendment injury-in-fact;

(3) causation and redressability were satisfied;

(4) professional speech doctrine was irrelevant to whether Caveman Blogger had Article III standing; and

(5) Caveman Blogger’s action was ripe for adjudication.

This is a technical decision about a Constitutional law doctrine known as “standing,” for the most part. But it does help determine Caveman Blogger’s legal destiny.

According to the 4th Circuit (we’re substituting Caveman Blogger for “citizen” or “plaintiff”) throughout this post:

‘Caveman Blogger’s speech in form of expressing opinions in form of personal dietary advice subjected him to credible threat of criminal penalties as set forth in North Carolina’s Dietetics and Nutrition Practice Act, and thus constituted First Amendment injury-in-fact, as required for Caveman Blogger to have Article III standing, since Caveman Blogger did not have dietician license, Act was not moribund, and Caveman Blogger’s speech could have fallen under civil and criminal sanctions enumerated in Act.’

In a very technical, procedural way, this is a limited win: “We thus vacate the district court’s order dismissing Cooksey’s complaint, and remand so that the district court may consider Cooksey’s claims on the merits.” The Court summarized the facts as follows:

On February 15, 2009, Cooksey was rushed to the hospital on the verge of a diabetic coma. He was subsequently diagnosed with Type II diabetes. Licensed dietitians advised that he should eat a diet low in fats and high in carbohydrates. After looking into the matter, however, Cooksey came to the independent conclusion that he should do the inverse, that is, eat a diet high in fat and low in carbohydrates, also called the “Paleolithic diet” because it is similar to the diet of humans living in the Stone Age. According to Cooksey, shortly after adopting this diet, his blood sugar normalized and he was able to stop using insulin and other prescription medications. Cooksey says that this, coupled with exercise, enabled him to lose 78 pounds, and he “feels healthier than ever.”

In January 2010, Cooksey launched a website, now called “Diabetes Warrior,” www., wherein he talked about his weight loss and lifestyle changes, including his personal meal plans and favorite recipes. The website contained a disclaimer that Cooksey was not a licensed medical professional and did not have any formal medical education or special dietary qualifications. On the website, Cooksey expressed his opinion that the high carbohydrate/low-fat diet was causing more obesity and diabetes. His site ultimately became very popular, with approximately 20,000 unique visitors in December 2011 and January 2012 alone.

The website had three main components of relevance to this appeal: (1) a “Dear Abby-style Advice Column,” in which Cooksey selected certain questions he received from visitors to his website and posted them, along with his answers; (2) a free “Personal Dietary Mentoring” section, in which visitors would post questions or share stories about diet, exercise, and related issues, and Cooksey would respond to the post; and (3) a fee-based ” ‘Diabetes Support’ Life-Coaching” service, in which Cooksey proposed a fee in exchange for providing individualized advice and moral support to those wishing to try the Paleolithic diet.

On January 12, 2012, Cooksey attended a nutritional seminar for diabetics at a church near his home. The seminar leader-the director of diabetic services at a local hospital-expressed her view that a high-carbohydrate, low-fat diet is best for diabetics. During the question-and-answer portion of the seminar, Cooksey expressed his counter opinion that a Paleolithic diet is best for diabetics. Someone present at the seminar reported Cooksey to the State Board, which is charged with administering North Carolina’s Dietetics/Nutrition Practice Act (the “Act”), and claimed that Cooksey was engaging in the unlicensed practice of dietetics.

The Act prohibits any unlicensed person from engaging in “the practice of dietetics/nutrition,” N.C. Gen.Stat. s 90-365(1), which is defined as “the integration and application of principles derived from the science of nutrition, biochemistry, physiology, food, and management and from behavioral and social sciences to achieve and maintain a healthy status.” “The primary function of dietetic/nutrition practice is the provision of nutrition care services.” Id. “Nutrition care services” include the following:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.

b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.

c. Providing nutrition counseling in health and disease.

d. Developing, implementing, and managing nutrition care systems.

e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

The next part is interesting for the story of how Caveman Blogger got into trouble and tried to get out:

Cooksey alleges that shortly after the diabetics seminar, the Executive Director of the State Board, Charla Burill, called him and told him “he and his website were under investigation.” J.A. 18 (Compl.P 63). When Cooksey asked if he needed a lawyer, Burill responded that the State Board “tried to resolve complaints informally, but that [it] does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.” Id. (Compl.P 64). Apparently during this same conversation, Burill asked Cooksey to move the disclaimer stating that he is a layperson to the home page of the website, and he did so without objection. She also “instructed” Cooksey “to take down the part of his website where he offered his ‘Diabetes Support’ life-coaching service because such a service constitutes the unlicensed practice of dietetics.” Id. (Compl.P 65-66). Cooksey reluctantly complied with this request “because he feared civil and criminal action against him….” Id. (Compl.P 65). Burill then told Cooksey that the Complaint Committee of the State Board “would review his website and report back to him on what he may and may not say without a dietitian’s license.” Id. (Compl.P 67).

The Board informed Caveman Blogger:

* “You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.” J.A. 39.

* “When helping [a website visitor] with this issue [introducing whipping cream into her diet] you were assessing and advising-these activities require a license. Further-would seem to communicate to the public that you can provide this type of service possibly for them too when you post in this manner.” Id. at 40.

* “It is acceptable to provide just this information [a meal plan], but when you start recommending it directly to people you speak to or who write you, you are now providing diabetic counseling, which requires a license.” Id. at 45.

* “(1) As previously stated, you can provide information on your site, but you cannot work one-on-one with individuals[.] (2) Consider how these testimonials come across to the public-would the lay person believe you could counsel him/her?” Id. at 48.

Notes the Court: “The State Board simply drew large red “X’s” through Cooksey’s various fee-based life-coaching packages;” Cooksey shut down his practice and came into “substantial compliance,” and the Board closed the investigation. Cooksey then sued the Board for violating his First Amendment rights, and specifically, 42 U.S.C. s 1983.

Cooksey seeks a declaratory judgment that the Act and attendant regulations “are unconstitutional as-applied and on their face to the extent that they prohibit Caveman Blogger Cooksey from” conducting the Dear-Abby-style column, personal dietary mentoring, and the life-coaching service; a permanent injunction preventing the State Board from enforcing the Act and attendant regulations; and attorney’s fees and costs. Id. at 31-32 (Compl.PP A-H).

In response, the Board filed a motion to dismiss for lack of standing and ripeness, and for failure to state a claim. The magistrate recommended granting the motions, and the district court agreed; this appeal followed.

The case now goes back to the district court to consider Caveman Blogger’s claims on the merits.

Regardless of the outcome, the Caveman Blogger case showcases the heavy-handed authority of the boards to investigate and initiate filing of charges against non-licensed practitioners who offer nutritional services, or any healthcare services that could be construed as:

• unlicensed practice of medicine

• unlicensed practice of psychology

• unlicensed practice of social work or another mental health discipline

• unlicensed practice of nutrition and dietetics

• unlicensed practice of other licensed healthcare professions

Life coaches are not necessarily safe from this kind of aggressive enforcement action. Even though the NC Board ultimately dismissed the action against Caveman Blogger, it did succeed in shutting down his practice, in the process raising questions of First Amendment law that the courts will have to sort out.

In Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives, I wrote about the conflict between the 10th and 1st Amendments—the 10th usually trumps (the police power to regulate health, safety, welfare and morals). This case, as it unfolds, could represent a push-back in the judicial balancing of the two Constitutional Amendments.

Even so, practitioners—whether or not they call themselves “life coaches” or offer nutritional counseling—should be aware of state laws and how they differ, for example, in North Carolina vs. say New York or California, with regard to non-licensed practice of healthcare services.

If you have questions regarding the healthcare services you or your company is offering, contact our healthcare lawyers at the Cohen Healthcare Law Group with your healthcare legal questions. Our long-standing focus on corporate practice of medicine, unlicensed practice of medicine / psychology / nutrition, and practice of alternative, complementary and integrative medicine gives us experience to analyze your healthcare practices and provide recommendations to facilitate compliance.

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