Stone Age diet guru sues state over licensing

Steve Cooksey is a convert and an evangelist of sorts—not the spiritual kind, but the dietary kind. The former junk food junkie turned his lifestyle around in 2009 after spending four days in intensive care and being diagnosed with Type II diabetes. Against the conventional wisdom for diabetes patients, he adopted a regiment called the Paleolithic diet, described by his attorneys as “a high-fat/low-carbohydrate diet of the sort that Stone Age people ate prior to agriculture.” He now eats only those foods, like meats and leafy green vegetables, available to pre-agricultural humans. He even took to exercising in bare feet.

Unusual or not, the diet clearly worked for Cooksey, a resident of Stanley, North Carolina. He lost 78 pounds and says he is now insulin- and drug-free and feels healthier than ever. In 2010, he started a blog, Diabetes Warrior, to share his views on the Paleolithic diet and included a Dear Abby-style advice column in which he gave readers individualized suggestions on how to improve their health.

That brought Cooksey to the attention of the North Carolina Board of Dietetics/Nutrition, the state body that regulates the practice of nutrition care services. In January 2012, the board informed Cooksey that his blog posts constituted the unauthorized practice of dietetics, and suggested changes Cooksey could make to the blog to bring himself into compliance. This included terminating his advice column and both the personal mentoring that he offered without charge and “life-coaching” that he offered for a fee. Cooksey made the changes to the blog, although he says he did so reluctantly and to avoid penalty.

A friend eventually put Cooksey in contact with the Institute for Justice, a group of libertarian litigators. With their help, Cooksey on May 30 filed suit against the board in U.S. District Court for the Western District of North Carolina. The suit asks the court to declare that the North Carolina Dietetics/Nutrition Practice Act is unconstitutional, thus raising a decidedly modern-age question: What type of advice can states limit to licensed practitioners, and what is protected free speech?

‘Speech-chilling uncertainty’

“This is kind of a simple First Amendment case. Advice is speech, and just because the state can license certain kinds of advice, such as doctors’, doesn’t mean it can license all kinds of advice,” said Paul Sherman, one of Cooksey’s attorneys. “It’s ludicrous to think that everyone who gives advice about diet needs to be a licensed dietician. That’s like saying Dear Abby needs to be a licensed psychologist.”

Charla Burill, the board’s executive director, said attorneys had advised her not to comment on the case at this time. However, the board has posted a statement on its website specifically addressing Cooksey’s claims, and arguing that “a number of inaccuracies have been presented to the public” regarding their correspondence with Cooksey.

The statement claims that no legal action was ever threatened or taken against Cooksey, and that there is no complaint or action pending. The changes Cooksey made to his website brought him into compliance with the board’s rules, and the board believed Cooksey had made these changes voluntarily. Further, local prosecutors, not the board, decide whether to pursue criminal charges.

Cooksey alleges in his complaint, however, that had it not been for the board’s emails and letters, he would not have stopped his advice column, mentoring or life-coaching, and that he “would not have a speech-chilling uncertainty about the legality of private conversations and correspondence with family, friends, colleagues, and readers in which he expresses opinions in the form of personal dietary advice.”

The state began licensing dieticians in 1992 after the passage of the Dietetics Practice Act. In its online statement, the board said that advocating a certain type of diet or dietary approach is not a violation of the law and that the Paleolithic diet is not under investigation. The board does require a license to provide nutrition care services, which it defines as assessing the nutritional needs of individuals and groups; establishing priorities, goals, and objectives that meet nutritional needs; providing nutrition counseling in health and disease; and developing, implementing, and managing nutrition care systems.

Both sides seem to agree that the rules allow Cooksey to blog about his beliefs to the public, but the board has told Cooksey that giving advice to an individual constitutes the unauthorized practice of dietetics. But Sherman said that giving advice to another person is a form of free speech protected by the First Amendment.

“This is a simple case about the kind of advice that people exchange every day, and it’s a particularly important question because more and more occupations are coming under licensure, which means that more and more categories of speech are potentially off-limits. This is one of the most important unresolved First Amendment questions, whether occupational licensing can trump free speech,” Sherman said.

Not the Institute’s first rodeo

The case is part of an ongoing battle waged by the Institute for Justice, which has taken part in cases elsewhere challenging occupational licensing rules in other states. Sherman helped argue Locke v. Shore, where the IJ argued that Florida’s license requirement for interior designers — a specialized field not to be confused with interior decorating — violated the Constitution. The Eleventh Circuit found the license requirement constitutional; Sherman hopes this case will eventually create a circuit split.

Even though the complaint asks the court to declare the statute unconstitutional both on its face and as applied to Cooksey, Sherman says that the case is not a direct attack on dietician licensing.

“The state could almost certainly regulate people who are making dietary decisions for patients in a hospital setting, or people who are making decisions about the menus that will be offered in schools,” Sherman said. “What the state can’t regulate is the offering of one-on-one advice about what to buy at the grocery store.”

Robert W. Shaw of Williams Mullen is also serving as local counsel to Cooksey.

Stone Age diet guru sues state over licensing

Court asked to decide whether food advice is free speech or a regulated activity

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