ANH-USA Uncovers Suspicious Activity by State Dietetic and Health BoardsMay 15, 2013
Our exclusive report reveals government surveillance, what appear to be undercover sting operations, and investigations into the alleged crime of “practicing nutrition without a license.” Action Alerts!
ANH-USA has uncovered widespread surveillance (including undercover sting operations), aggressive investigations, and prosecutions of nutrition professionals. These actions, together with the levying of criminal penalties, have been undertaken by state health departments and state dietetics boards that are enforcing monopolistic laws sponsored by the Academy of Nutrition and Dietetics. More often than not, they are supported by local law enforcement or the offices of state attorneys general. The AND—formally the American Dietetic Association, or ADA—is not a medical organization, but a trade group that represents the interests of Registered Dietitians (RDs, who are certified by the AND’s credentialing arm). The AND has about 74,000 members.
These non-RD nutrition professionals are being targeted by these states’ RD monopoly laws, despite the fact that many of them have advanced degrees and a tremendous number of clinical hours to their credit. They are being prosecuted for “practicing dietetics without a license” or for referring to themselves as “a nutritionist” in media or marketing materials.
One of the AND’s key agenda items is to pass “scope-of-practice” laws in each state whereby only RDs can legally offer nutrition services—even basic services like providing nutrition advice or nutrition consulting. The AND describes this as a “Mega Issue” for the organization, and it was listed as priority at the AND’s recent conference in Washington, DC.
If an RD monopoly bill is passed by a state’s legislature and signed into law by the governor, a dietetics board is created to enforce the new law. Unsurprisingly, these boards are mostly comprised of RDs (on Georgia’s board, six of its seven members are RDs). They have the weight of state law behind them, and depending on the state, the dietetics boards can levy heavy fines against a nutritionist who is not an RD and can either file criminal charges themselves or can refer the case to the state attorney general for prosecution for violating the state’s law of “practicing dietetics/nutrition without a license.” See, for example, the dietetics laws in Florida (468.517: Prohibitions; penalties), Georgia (43-11A-15: Refusal, suspension, or revocation of license; other disciplinary actions) North Carolina (90-366: Violation a misdemeanor), and Ohio (4759.09: Violation procedure).
The AND defends its RD monopoly law and the creation of these dietetics boards as an effort to “protect the public health.” However, in our investigation into three years of records from four state dietetics boards, we did not find a single case of an unlicensed nutrition practitioner causing harm or engaging in a harmful nutrition related activity, and not a single case of a customer filing a complaint. Every complaint that spurred a subsequent investigation and prosecution was made at the behest of the Board itself, or from complaint forms submitted by RDs. (At least one AND affiliate has openly encouraged its members to submit complaints against fellow nutrition professionals).
Let’s be clear: ANH-USA generally supports the AND’s desire to protect the term “Registered Dietitian” or “Dietitian.” We believe it helps inform consumers as to the professional training of that nutrition practitioner. At the same time, we adamantly oppose efforts by any nutrition organization to limit consumer choice by enacting laws that benefit one particular group. We believe in a competitive and open market for nutrition professionals, with consumers and employers (including hospitals) being able to decide what credentials, education, and experience they want in a nutrition provider.
As we’ve noted, there is no evidence whatsoever that an open and competitive market for nutrition services endangers the public safety and health. But do dietetics boards improve the public health? Let’s look at a public health issue that is the sine qua non of nutrition professionals: obesity. Five of the ten most obese state (MS, LA, WV, AL, MI, OK, AR, IN, SC, KY) have RD monopoly laws. Nine of the ten least obese states (AZ, CT, NV, NY, UT, CA, NJ, MA, HI, CO) do not. It would seem that ADA-run dietetics boards are not having a positive impact on public health, and may be having quite the opposite effect.
Not only is Colorado the least obese state in the country, it’s also one of three states (Arizona and New Jersey are the other two) that do not regulate the practice of nutrition whatsoever. If the AND were correct, and a lack of regulation of nutrition endangers the public safety, then Colorado should be the epicenter of harm—yet it seems the reverse is true. In fact, in a 2007 letter, the Colorado Department of Regulatory Agencies rebuked the Colorado Dietetic Association, which was at the time seeking an RD monopoly law, for failing to provide any evidence of harm caused by the unlicensed practice of nutrition professionals.
Currently only twenty-four states have restrictive nutrition counseling laws. That’s because most states recognize that this push has nothing to do with protecting the public health, and everything to do with market share. Nearly thirty years ago, in the Journal of the American Dietetic Association 84:4, the organization’s president wrote (emphasis ours):
Like other professionals, dietitians can justify the enactment of licensure laws because licensing affords the opportunity to protect dietitians from interference in their field by other practitioners. Licensure also can protect dietitians by limiting the number of practitioners through restrictions imposed by academic, experience, and examination requirements. This protection provides a competitive advantage and therefore is economically beneficial for dietitians.
When the news broke about the investigation (and attempted silencing) of blogger and Paleo diet proponent Steve Cooksey by the North Carolina Board of Dietetics/Nutrition, we had a feeling he wasn’t the first non-RD targeted by dietetics boards. Were there people like Steve Cooksey in other states?
ANH-USA filed freedom of information requests with state dietetics boards that had histories of aggressively targeting non-RD nutrition practitioners. Our requests sought any and all information on complaints, investigations, enforcement actions, and internal communications related to RD monopoly laws.
We received thousands of pages of documents, meeting minutes, email communications, complaint forms, cease-and-desist orders, and consent decrees relating the enforcement of restrictive nutrition practice and speech laws by dietetics boards in Florida, Georgia, North Carolina, and Ohio. We also scoured the Internet for records—including those found on the boards’ public websites. Here’s what we discovered:
Florida’s Dietetic & Nutrition Practice Council is part of the Florida Department of Health; the latter carries out investigations and enforces the state’s RD monopoly law. Our investigation revealed that undercover operations—with individuals posing as potential patients or clients seeking personalized nutrition advice so as to entrap the unlicensed practitioner—were conducted by RDs who had filed complaints against non-RD nutrition professionals, as well as by investigators from the Department of Health itself.
Undercover surveillance might be excused if the public health were really at risk. But as Forbes contributor Michael Ellsberg noted, “The reason to surveil and report citizens who provide public nutrition advice (people like Steve Cooksey) is not that there’s any evidence that these citizens actually harm the public. Rather, the reason to surveil and report citizens like Cooksey is that doing so is necessary to maintain licensure laws (which were designed by the ADA explicitly to limit market competition).”
At a Dietetic & Nutrition Practice Council meeting this past January, a board member stated that in 2012, the Department of Health spent 681 hours, at a cost of $19,857, to investigate complaints of people practicing nutrition/dietetics without a license. Previous year’s totals were 191 hours in 2010, and 207 hours in 2011. That’s a 229% increase in investigations in just two years! Last year the Florida Department of Health fined at least seven people at a total of $11,672 for the crime of referring to themselves as a nutritionist or offering “nutrition services” without a license. There were no allegations of harm and not a single complaint filed by individuals who visited these “unlicensed practitioners.”
Our investigation revealed that since 2009, there have been 349 investigations by the Ohio Board of Dietetics. At least forty-two of the investigations were of non-RD practitioners accused of practicing nutrition/dietetics without a license—including wellness centers, alternative health providers, physical trainers, and other licensed professionals. To date, seven official disciplinary actions, such as cease-and-desist orders and consent decrees, have been issued by the board.
Ohio was singled out as “a model dietetics board” for its aggressive investigations into unlicensed activity at the AND’s Public Policy Workshop this past March.
In addition to its questionable investigations against non-RD nutrition professionals, we should highlight what seems to us to be a flagrant conflict of interest on the part of the Ohio Board of Dietetics. A bill that was introduced in the state legislature, HB 259, would have allowed non-medical practitioners who do no harm to practice in Ohio. The bill was supported by health freedom advocates, but opposed by the state Ohio Dietetic Association, a 501(c)6 trade group that can legally lobby for and against bills. However, our investigation revealed that the Ohio Dietetics Board—a state government entity—actively lobbied against HB 259, which is patently against the law. This is outrageous enough, but we’ve also learned the board was coordinating its lobbying activities with the Dietetics trade group—the same group the board is supposed to regulate. The bill passed the Ohio House, but failed in the Senate, and the bill died in 2012.
ANH-USA has filed an ethics complaint with Ohio state agencies over the Board of Dietetics’ collusion with a private trade association in an attempt to limit competition. ANH-USA is also preparing materials for review by the Federal Trade Commission into possible restraint of trade actions by both the state dietetic association and the state board.
The office of Georgia’s Secretary of State responded to our freedom of information request with the statement that “all complaints, their outcomes, and all other documents pertaining to investigations…are restricted from release” and that “deliberations, a complaint, an investigation or a disciplinary proceeding…is not subject to release.”
The Georgia Board of Examiners of Licensed Dietitians (six of whose seven members are RDs) refused to release detailed meeting minutes or a recording of recent board meetings to us—even though ANH-USA was an agenda item at its December 2012 meeting!
Georgia’s “Dietetics Practice Act” empowers the board to “enforce the provisions” of the Act—one of which is that only a “person licensed…shall be engaged in dietetic practice.” That means that only an RD can legally “assess nutritional needs or individuals” or “provide nutrition counseling.”
Although the board states on its website that “the Board has not issued Voluntary Cease and Desist Orders for unlicensed practice,” the minutes of the board’s August 24, 2012, meeting tell a different story: the board “moved to accept the Cease and Desist order, notify the Composite Board of Professional Counselors, Social Workers and Marriage and Family Therapists of the complaint, and close the case.” Why is this information buried in meeting notes, but not posted in the Cease and Desist section of the board’s website?
At its June 15, 2012, meeting, the board went into executive session—that is, all matters were off the record and visitors were not privy to the discussion—to deal with “enforcement matters, investigative reports, and pending cases.” The board “moved to schedule an investigative interview” with a holistic health coach.
As we reported last November, the Georgia board conducts undercover sting operation investigations with the full knowledge and cooperation of the Georgia attorney general’s office. We find it appalling that a government board, through a controversial dietetics law, is able to investigate and prosecute, has little to no accountability or transparency, and misinforms the public as to their actions. They’re not even required to tell you what was said when you or your organization is “reviewed and discussed” in their board meeting!
Most of our readers will be familiar with the story of Steve Cooksey, the health blogger that provided nutrition advice online. What you may not realize is that the Cooksey is one of nearly fifty people in North Carolina who have been targeted and investigated by the North Carolina Board of Dietetics/Nutrition over the past five years for possible violations of the state’s dietetics practice law.
Our freedom of information request found that RDs in the state are posing as patients and consumers in order entrap individuals practicing nutrition without a license. We found a litany of needless investigations into practitioners who are not even violating the North Carolina dietetics law—though the board pursued these individuals simply because complaints were filed. We view this as tantamount to harassment.
Do restrictive dietetics laws limit competition in the nutrition field? You bet. Consider the case of Liz Lipski, an expert nutritionist who was forced to leave North Carolina because the board denied her the right to practice as a nutritionist in the state. There are only 2,408 licensed dietitians in North Carolina to service a population of nearly 10 million people! By comparison, there are 119,069 registered nurses in NC.
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While ANH-USA has been very successful defeating AND-proposed RD monopoly bills, we’re currently exploring multiple legal and regulatory options that would end the anti-competitive, restrictive trade and anti-free speech actions of state dietetics boards.
If you are a resident of Florida, Ohio, Georgia, or North Carolina, please contact your state legislators and ask them to repeal your state’s dietetics board. In NC, there’s even a bill, HB 676, which hopes to do just that. Please send your message to your state senators and representatives today!
New York, S.4999, would create a licensure scheme for nutritionists and dietitians (lumping them together as if there were no difference). It creates a board disproportionately made up of RDs, ensuring a board biased against non-dietitians.
This bill is very similar to one introduced last year by the same senator, Kenneth Lavalle (R-NY01). We hope the bill doesn’t have legs, since no companion House bill was introduced, and the similar bill did not go anywhere last year, but we’re not taking any chances. New York residents, please send your message immediately!
Michigan, HB. 4688, would repeal the 2006 the Dietetic/Nutrition Regulation Act, and eliminate the Dietetic/Nutrition Licensing Board. Michigan residents, please send you message immediately!