Florida Dietary Advice Dispute Goes to Supreme Court

Heather Kokesch Del Castillo, a Northwest Florida resident, was cited by the state Department of Health in 2017 for getting paid to provide dietary advice without being a licensed dietitian or nutritionist.

That spurred a legal battle in which Del Castillo, represented by attorneys from the Institute for Justice national legal group, contended that Florida violated her speech rights. A federal district judge and the 11th U.S. Circuit Court of Appeals sided with the state, prompting her to file a petition Thursday at the U.S. Supreme Court.

The petition said, in part, 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,” the petition said. “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 February ruling, a three-judge panel of the 11th U.S. Circuit Court of Appeals 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.”

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 U.S. Supreme Court petition, Del Castillo’s attorneys argued that the 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.

It pointed to an “incoherent jumble of differing rules governing when the government can regulate speech, including speech on the internet.”

“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.”