The Florida Department of Health this week urged the U.S. Supreme Court to reject a First Amendment challenge to a law that blocked a woman from providing dietary advice to clients in her health and nutrition coaching business.
Heather Kokesch Del Castillo was cited by the Department of Health in 2017 for getting paid to provide dietary advice without being a licensed dietitian or nutritionist after she moved to Northwest Florida.
She contended that the state violated her speech rights. After losing in federal district court and the 11th U.S. Circuit Court of Appeals, Del Castillo in August filed a petition asking the Supreme Court to take up the issue.
But in a 20-page response Monday, lawyers in Attorney General Ashley Moody’s office pointed to legal precedent that a state “may permissibly regulate speech as an incident to a regulation of conduct, including professional conduct..”
“Petitioner’s position, if accepted, would have far-reaching consequences. Petitioner appears to submit that any professional licensing scheme is subject to challenge by unlicensed persons, armed with heightened scrutiny under the First Amendment, if any portion of that scheme can be said to ‘restrict speech’ of those unlicensed persons,” the response said. “That would throw into doubt the constitutionality of longstanding licensing schemes that have never been thought to present a general First Amendment problem, such as requirements that lawyers, doctors and architects obtain a license before they may hold themselves out, and provide advice, as professionals.”
Del Castillo’s attorneys, however, said in the August petition that the state’s restrictions are “rife with holes and exceptions.”
“Heather’s advice would have been perfectly legal, for example, if she had been selling nutrition supplements instead of just selling advice and encouragement,” attorneys from the Institute for Justice, a national legal group, wrote. “In other words, taking five dollars as compensation for telling someone ‘eating fewer carbohydrates will help you lose weight’ is a crime, but telling that same person ‘you can lose weight if you eat fewer carbohydrates and give me five dollars for this miraculous pill’ is perfectly legal.”
The petition said Del Castillo provided dietary advice while operating her business, Constitution Nutrition, in California. After her husband, a U.S. Air Force airman, was transferred to Florida, she planned to continue the business.
But a licensed dietitian complained to the Department of Health after seeing an ad in a magazine, the petition said. The department ordered Del Castillo to stop providing dietary advice and to pay $754 in fines and fees, prompting the lawsuit.
In the Supreme Court petition, Del Castillo’s attorneys argued that the February ruling by the 11th U.S. Circuit Court of Appeals conflicted with decisions by appellate courts in other parts of the country about how the First Amendment applies to licensing laws.
“In Florida, Heather has no First Amendment right to communicate with her clients,” the petition said. “If she goes home to California, it’s different. If she goes north to the Carolinas, it’s different. If she goes west to Mississippi, it’s different. In a nation with communication services, including coaching and advice, increasingly being provided across state lines, patchwork precedent on a question as fundamental as ‘Does the First Amendment even apply?’ calls for this (Supreme) Court’s intervention.”
But in the response this week, lawyers for the Department of Health disputed that the 11th Circuit’s decision conflicted with other court rulings, saying it “is consistent with the decisions of other circuits, which agree that the correct test for whether a licensing scheme comports with the First Amendment is whether it represents a regulation of speech that is incident to a regulation of conduct.”
Also, the state pointed to a change the Legislature made in 2020 that narrowed the law regulating dietary and nutritional advice. The change did not make the lawsuit moot, but it allowed unlicensed people to provide advice to clients who are not “under the supervision of a doctor for a disease or medical condition requiring nutrition intervention.”
“The statutory scheme is thus narrowly focused on the type of professional conduct that has direct medical effects — like Florida’s scheme for licensing doctors or other health care professionals,” the response said.
