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Professional Licensing: A Risk to the Free Markets and Freedom of Speech

From physicians to dentists to lawyers, the licensing requirements of many professions are well known—but for bloggers? A recent case in North Carolina demonstrates the dangers that mandatory occupational licensing poses to liberty and how established interests use such requirements to protect their bottom line.

North Carolina resident Steve Cooksey was ill, obese, and struggling with type 2 diabetes. In 2009, after being rushed to the hospital, nearly in a coma, he decided to do everything in his power to get healthy. By following a low-carbohydrate diet, Cooksey claims he was able to drop 45 pounds and get off insulin and drugs. He documented his story on his personal blog, where he provided advice to others practicing the “paleo” diet that he believes saved his life.

That sounds like a win-win situation, but not according to the North Carolina Board of Dietetics and Nutrition (NCBDN), which decided to go after Cooksey for the “crime” of offering nutritional advice without a dietitian's license. In 2011, it sent Cooksey a letter, claiming that his blog, by giving readers “unlicensed dietetic advice,” even for free, violated North Carolina law. The NCBDN included a 19-page copy of his online writings with comments in red ink pointing out what he could and could not say.

Even more surprising, the notice asserted that Cooksey’s private conversations with readers and friends via email and telephone also constituted a violation of the state’s dietitian licensing law!

Unfortunately, Cooksey’s case is far from an isolated incident. In just about every state, there is a dizzyingly long list of jobs that require would-be workers to go through a long, expensive, and sometimes arduous process to earn the privilege of entering into a given profession. While the stated reason for requiring occupational licenses is public safety, established players operating under existing licensing schemes usually fight tooth and nail to maintain occupational license requirement in place, to make it harder for potential competitors to enter the market.

Today, roughly 30 percent of jobs in the U.S. require some form of license (a sharp increase from a low back in 1950, when the share was only 5 percent). Fortunately, some workers are fighting these licensing regime—and many are winning.

Licensing requirements are usually sold as a way to protect consumers from being swindled or harmed, but in reality, they usually serve as a way to restrict competition, keep prices high, and limit the availability of services. Thankfully, more and more Americans are beginning to realize that they don’t need the government to tell them where they can get nutritional advice.

But don’t take it from me. As Mary Haschke, former president of the Academy of Nutrition and Dietetics (AND; formerly the American Dietetic Association), once wrote to members in the organization’s journal:

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. [Emphases added]

In essence, licensing drives up the cost of services through increased government regulation, which is why trade groups like the AND and political bodies like the North Carolina Board of Dietetics and Nutrition lobby for them vigorously. It’s worth noting that of the NCBDN seven members, five are registered dietitians.

The prosecution of Steve Cooksey is only the tip of the iceberg. AND aggressively pushed bills in almost every state to require even nutritionists some with PhD’s to complete a dietitian program—approved by the AND, of course—to be licensed. Around the nation, AND state chapters attempt to report non-dietitians for practicing nutrition without a license. And it’s all part of a plan, which came to light in 2012 after some AND members, outraged by the organization’s activities, leaked internal documents outlining a strategy of using state dietetics boards and extensive surveillance of private citizens to limit competition for its members.

Fortunately, the tide seems to be turning against licensing regimes like that favored by the Dietetic Association. Not a single AND-supported bill has passed since 2011, AND backed bills recently failed in California, Colorado, Hawaii, Indiana, Virginia, and West Virginia. There are bills now to even repeal existing restrictive laws in Michigan and North Carolina. Additionally, in March 2014 the Federal Trade Commission held a workshop examining competition within the health care market, where the commission heard testimony regarding the anti-competitive efforts of dietetic licensing organizations within the states.

As for Steve Cooksey, a three-judge panel of the United States Court of Appeals for the Fourth Circuit unanimously agreed that the North Carolina Board of Dietetics injured his First Amendment rights and sent the case back to the district court.

In almost every industry, it seems, trade associations representing established players push for legislation and regulation to protect their members from competition, usually under the guise of promoting public safety. While a stamp of approval from a qualified body of experts can be a great way to let consumers know that certain members of a profession have been vetted, the ultimate decision of whom to hire should be up to consumers, not the government. Certainly, neither the government nor a trade group should be in the business of dictating what individuals can discuss. Such efforts represent not just a threat to a free market, but to our freedom of speech as well.