N.C. Blogger Says Doesn't Need License To Dispense Diet Advice

by Wendy Davis, May 30, 2012, 7:18 PM

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A blogger in North Carolina who advises diabetics to follow a high-fat, low-carb "caveman" diet has landed on the wrong side of state regulatory authorities.

Steve Cooksey says on his Diabetes-Warrior blog that he conquered diabetes by following a diet high in vegetables and protein. His posts include information about his own diet, as well as advice to readers who have written in with questions. For instance, he tells one reader who is worried about a friend that he must "first and foremost obtain and maintain normal blood sugars."

After he launched the blog, he also began offering paid "life-coaching" services, for which he charged up to $197 a month. He advertised those services on the blog, which also contains a disclaimer stating he isn't a doctor, dietician or nutritionist.

Cooksey's blog is more than two years old, but he didn't come to the attention of state authorities until this January, shortly after attending a seminar for diabetics at a local church and said he disagreed with the leader's nutritional advice. Several days later, he heard from the North Carolina Board of Dietetics/Nutrition that he was under investigation for possibly violating a state law that prohibits anyone but a licensed dietitian from giving nutritional advice -- regardless of whether paid or unpaid.

That same month, he received a 19-page printout of his blog with critiques and cross-outs in red pen. The gist of the comments was that Cooksey could lawfully describe his diet, but couldn't recommend that others also follow the same diet. The board also placed “X” marks through sections of his site that advertised his life coach services.

Cooksey revised his site, but wasn't happy about it.

This week, he asked a federal judge to issue an injunction barring the North Carolina authorities from applying the state's licensing law to his blog and coaching business.

"Every day people ask their family, friends, and colleagues for personal advice on diet. They turn to the Internet, including social media such as Facebook, for personal advice on diet," Cooksey's lawyers write. "The First Amendment simply does not allow North Carolina to criminalize something as commonplace as advice about diet."

While the government is allowed to prevent people from practicing certain professions -- like medicine or law without a license -- he says that providing online nutritional advice shouldn't require state approval.

Whether he can prevail seems likely to turn on whether a judge views his posts as an effort to attract paid clients, or as expression of his own opinions.

"If you hung a sign up on your house that said, 'Come to me for advice about diet,' we'd say you're a professional, and that's regulated in North Carolina," says law professor David Ardia, co-director of the University of North Carolina Center for Media Law and Policy.

On the other hand, posts that obviously are just opinion-driven advice might well be protected by free speech principles. "My guess," he says, "is that a court will parse this Web site carefully, and will categorize the speech in different ways."

 

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