Arguing that her First Amendment rights were violated, a woman who was blocked by the Florida Department of Health from providing dietary advice is asking a full federal appeals court to take up a challenge to a state dietitian law.
Attorneys for Heather Kokesch Del Castillo filed a 30-page motion last week asking the full 11th U.S. Circuit Court of Appeals to hear the case, after a panel of the court upheld the law in February.
Del Castillo, a Northwest Florida resident, was cited by the Department of Health in 2017 for getting paid to provide dietary advice without being a state-licensed dietitian or nutritionist. Del Castillo, who operated what is described in court documents as a health and nutrition coaching business, paid a $754 fine after the state was tipped off by a licensed dietitian..
Represented by attorneys from the Institute for Justice, a national legal group, Del Castillo contends that a state law known as the Dietetics and Nutrition Practice Act violated her speech rights.
“The sole basis for Heather’s fine was that she was providing advice,” said the motion filed Thursday at the Atlanta-based appeals court. “And the record is devoid of evidence that prohibiting this sort of one-on-one advice could survive any serious constitutional scrutiny. Advice exactly like Heather’s is readily available in the form of books, websites and podcasts. Unlicensed individuals ranging from acupuncturists to nutrition-supplement salespeople are free to give dietary advice without a dietician license.”
But a federal district judge and a three-judge panel of the appeals court sided with the Department of Health. In a 26-page ruling Feb. 18, the panel said the law’s “licensing scheme for dieticians and nutritionists regulated professional conduct and only incidentally burdened Del Castillo’s speech. Because the burden on her speech rights was only incidental, the act’s licensing scheme did not violate her First Amendment free speech rights.”
Del Castillo’s attorneys contend that the panel’s ruling conflicts with U.S. Supreme Court precedents and a 2020 decision by another panel of the 11th U.S. Circuit Court of Appeals in a Florida case about the controversial practice known as “conversion therapy.”
In that case, the panel ruled against Palm Beach County and Boca Raton ordinances that barred therapists from providing treatment or counseling that is designed to change minors’ sexual orientation or gender identity. Two marriage and family therapists challenged the ordinances on First Amendment grounds.
Attorneys for the county and Boca Raton sought a rehearing by the full appeals court --- a request known as seeking an “en banc” hearing — though the request remains pending.
Del Castillo’s attorneys contend that government arguments in both cases are similar.
The motion filed last week said the therapists in the Palm Beach County case argued that the local ordinances “violated the First Amendment as applied to the talk therapy they practiced. And the government there made arguments much like those made here (in the Del Castillo case), contending that the ordinance was simply a valid regulation of professional conduct. But there, the government lost.”
Del Castillo's attorneys say she received a health coaching certification in 2013 from the Institute for Integrative Nutrition, an online school trains people to assist others with diet and lifestyle.
