The U.S. Supreme Court has refused to take up a First Amendment challenge to a Florida law that prevented a woman from providing dietary advice to clients in her health and nutrition coaching business.
The court on Monday said it would not hear the case filed by Heather Kokesch Del Castillo, who was cited by the Florida Department of Health in 2017 for getting paid to provide dietary advice without being a licensed dietitian or nutritionist.
As is common, the Supreme Court did not explain its reasons for denying the case.
Del Castillo, who was represented by the Institute for Justice national legal group, went to the Supreme Court this year after losing in federal district court and the 11th U.S. Circuit Court of Appeals.
Del Castillo provided dietary advice while operating her business, Constitution Nutrition, in California, according to court documents. After her husband, a U.S. Air Force airman, was transferred to Northwest 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 a petition to the Supreme Court, Del Castillo’s attorneys argued that her speech rights were violated and 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,” her attorneys 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.”
But in a response filed in October, 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.”
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.
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