Appeals Court rules against Board of Dietetics/Nutrition | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    Let the foolishness now end.

    We often hear about "excessive government regulation" and government that is too large and intrusive. The case of Steve Cooksey vs. the good people at the N. C. Board of Dietetics/Nutrition (BDN) is a perfect example of government gone wild, in our opinion. The BDN is a government agency that should not exist.

    There are two stories here. The first is that of why this board even exists. The second in how it operated to violate Mr. Cooksey's rights.

    North Carolina has dozens of similar "licensing" boards. For the most part they all exist to stifle free competition, under the guise of protecting the public safety, health and/or welfare. In reality they seek to protect the insiders' turf.

    In this case the BDN tried to shut down a website Mr. Cooksey operated. He was diagnosed as a Type II diabetic in 2009. As a result, he launched a personal quest to learn how to cope with the disease. He did learn and overcame his diabetes. He then launched a crusade to tell others what he had learned.

    Important: He posted on his website a clear statement that he was not a license health care provider. But that did not stop the BDN from trying to shut him down for practicing "dietetics and nutrition" without a license.

    Now consider this. Think about how any websites, books, columns and TV programs you've seen that offer diet and nutrition "advice." Most are selling some kind of product, be it a book, a subscription, foods or gadgets. They are not, for the most part, licensed by the BDN.

    The BDN contacted him and threatened to take him to court unless he changed his website. The dictated the specific changes they required. Eventually Cooksy sued the BCN but a trial judge dismissed his suit because, the judge ruled, he did not have "standing" to sue. Last week the Fourth Circuit of Appeals overturned the trial judge's ruling, holding that Cooksy had a First Amendment right to express his views on his website and remanded the case back to the lower court for a trial on the merits of the case.

    You can read the court's opinion here.

    Click here to read the Institute of Justice's story on the case.

    For background on the case check out these earlier articles:

    Blogger sues NC Board of Dietetics-Nutrition

    Absurd case of the N. C. Board of Dietetics-Nutrition toes national

    That rogue Nutrition Board is on the crusade again

    George Will's take on the Board of Dietetics

    Click here to download the court's opinion

    Commentary

    Many Republicans who now form the majority in both houses of the legislature ran on a platform of "eliminating excessive government regulations." Let hey have stood by, along with Governor McCrory while this state agency has pursued this stupid case. It is not time to abolish the Board of Dietetics/Nutrition. Long ago the Governor should have order that these rogue bureaucrats and self-serving board members cease spending taxpayer dollars for such foolishness. To continue this legal battle simply should not be allowed to happen. The only good thing that would come from trying this case now is that the law that created the Board would likely be declared unconstitutional. But that should not be necessary.

    This board exists purely to serve the special interests of the people who are trying to get a corner on the market of diet and nutrition information. They contend it is for the protection of the public health. That's BS. Anybody with enough sense to get on a computer and log on to this website and read it has sense enough to decide for themselves whether and how to use that information. All the state should have done was require a notice that Cooksy was not licensed to prescribe diet or nutrition regimens. That's it.

    The Legislature, before it leaves town in a couple of weeks, should repeal NCGS § 90-350. Moreover, the state should immediately reimburse Cooksy and his attorneys for the expense they incurred in this case. Then the Governor should seek to have these bureaucrats and appointees reimburse the state for these expenses. And Governor McCrory should immediately order this staff to review every board or commission in the state to prevent a repeat of this debacle.

    Finally, the Legislature should appoint a Study Commission to recommend revision of the Administrative Procedures Act. The law is currently too week to prevent these rogue bureaucrats and appointees from harassing and intimidating the citizens of North Carolina.