Unlicensed “health coach” claims health advice is free speech—court disagrees

A federal court on Wednesday rejected claims by an unlicensed “health coach” that the unqualified health advice she provided to paying clients was protected speech under the First Amendment.

In rejecting her claim, the court affirmed that states do indeed have the right to require that anyone charging for health and medical services—in this case, dietetics and nutrition advice—be qualified and licensed. (State laws governing who can offer personalized nutrition services vary considerably, however.)

Heather Del Castillo, a “holistic health coach” based in Florida, brought the case in October of 2017 shortly after she was busted in an undercover investigation by the state health department. At the time, Del Castillo was running a health-coaching business called Constitution Nutrition, which offered a personalized, six-month health and dietary program. The program involved 13 in-home consulting sessions, 12 of which cost $95 each.

Under a Florida state law called the Dietetics and Nutrition Practice Act (DNPA), anyone offering such services needs to be qualified and licensed to protect against bogus advice that could cause significant harms. Those qualifications include having a bachelor’s or graduate degree in a relevant field, such as nutrition, from an accredited institution; having at least 900 hours of education or experience approved by the state’s Board of Medicine; and passing the state’s licensing exam.

Del Castillo had completed none of those things. Her only credential for providing health services was a certificate from an unaccredited, for-profit online school called the Institution for Integrative Nutrition. Otherwise, she had a bachelor’s degree in geography and a master’s in education.

When Del Castillo founded her company in 2015, she was living in California, which has no such licensing laws for “health coaches.” But she continued her business when she moved to Florida, advertising her services in a magazine called Natural Awakenings of Northwest Florida, on Facebook, and through flyers.

After getting a tip that Del Castillo was practicing without a license, the health department opened an investigation and had an investigator pose as a potential customer over email. Del Castillo took the bait and the health department issued a cease-and-desist order and made her pay a $500 fine and around $250 in fees.

The libertarian, public-interest law firm, The Institute for Justice, took up Del Castillo’s case. Together, they argued that the DNPA violates her right to freedom of speech. "Giving advice on what an adult should buy at the grocery store is speech, and the First Amendment protects it," one of Del Castillo's lawyers argued. Further, the law firm called the DNPA’s requirement that people giving nutrition advice be qualified and licensed to give nutrition advice had the effect of giving qualified and licensed nutritionists a “monopoly.”

Judge Casey Rogers of the US District Court for the Northern District of Florida rejected the arguments, some “out of hand.” In her ruling, she noted that laws restricting speech are subjected to strict scrutiny, but they can be justified if “the government proves that they are narrowly tailored to serve compelling state interests.”

The DNPA was enacted “to promote public health and safety,” the judge noted. “Promoting public health and safety is clearly a legitimate state interest, and states are given great latitude to regulate and license professions in furtherance of this interest.”

She went on to note that Del Castillo was well within her right to offer her health advice for free to anyone interested.

In a statement, Del Castillo’s attorney, Paul Sherman, fired back: “For decades, occupational licensing boards have acted as if the First Amendment doesn’t apply to them… Yesterday’s ruling is wrong on the law, and we will be appealing.”