The North Carolina Board of Dietetics/Nutrition has closed an investigation of a blogger it had accused of “practicing nutrition” without a license. The April 9 decision came five days after Carolina Journal inquired about the complaint.
The decision to close the complaint on Monday, April 9, seems to have been made quickly, as Steve Cooksey still was being investigated as of Wednesday, April 4, when CJ interviewed the board’s director, Charla Burill. Burill gave no indication at that time that the dispute was about to be resolved or that Cooksey had done anything to come into compliance with a law that prevents him from advising others about nutrition without a license.
In fact, she verified that if he refused to follow the law, he could be sued and possibly convicted of a misdemeanor. In a letter to Cooksey, Burill said: “As with all complaints, the board reserves the right to continue to monitor this situation.”
Cooksey’s 3-year-old Diabetes Warrior blog recounts his battle with diabetes and how his health has improved since adopting the low-carb, high-protein “paleo” diet. On the blog, he encourages others to embrace that lifestyle. The board notified him in January that he was violating state law, and demanded specific changes to his site.
Cooksey made a few changes in January, as a result of the board’s inquiry, but had made no substantive changes since, leaving most of the content the board originally objected to in a Jan. 27 letter. Still, the board told him in a certified letter dated April 9 that since he had “remained in substantial compliance” since January, it had decided to close the anonymous complaint against him.
Cooksey did not notify CJ of the letter before the CJ Online story was published April 23. Even before the story ran, he stopped responding to telephone messages and email contacts.
CJ has attempted to contact Burill for clarification, but she refused to return a telephone message. Instead, she responded by email saying, “after reading the article [CJ Online] published on April 23, 2012, I do not feel comfortable speaking with you at this time.”
‘Gimme the facts’
CJ learned April 26 that the board had closed the complaint when Jonathan Ressler, who owns a social media company, emailed CJ a link to a website he created that day, titled “Gimme the Facts.”
The website, which does not identify Ressler as its owner, contains only one post. It links to a copy of the letter to Cooksey, which Ressler told CJ he obtained through a public records request under the Freedom of Information Act. It is unclear what prompted him to make such a request.
In his post, Ressler attempts to “debunk” the press coverage of the Cooksey controversy, accusing the blogger of concealing that the case had been closed for two weeks before the story ran. “This guy is simply a self promoter trying to get into the national spotlight on a dead issue,” he wrote.
Ressler’s company provides “online reputation management” and “social media monitoring” services to several big brand names, including PepsiCo. PepsiCo is a corporate sponsor of the Academy of Nutrition and Dietetics, generally known by its old name, the American Dietetics Association. The national trade organization of registered dietitians has lobbied for laws that require licensing of dietitians and nutritionists in all 50 states. Currently about 35 states, including North Carolina, have such laws.
In an email, Ressler denied that having Pepsi as a client had anything to do with his interest in Cooksey’s blog, which frequently criticizes the American Dietetics Association and its corporate sponsors.
The day after Ressler created his website, Cooksey posted a blog entry saying the first notification he received that the North Carolina Board of Dietetics/Nutrition had closed the complaint against him was in the letter, which he says arrived April 20.
Cooksey says he made many fewer changes to his site than the board demanded in January. He has posted a copy [6.3 MB PDF] of the board’s written review on his website. It shows several pages of Cooksey’s blog marked in red ink — paragraphs crossed out and notes in the margins pointing out examples of illegal “advisory” language.
He says he has not removed any of the “illegal” language, but stopped posting anything that sounds like “counseling or advising” as of Jan. 18 — immediately after the board called him and before he received the written review of the site from the board Jan. 27.
“Because I complied with their order to stop speaking [advising] and to change what I say and what I publish, the board concluded that I am in substantial compliance and closed the investigation,” Cooksey wrote.
He said he made two changes to the site on Jan. 18: He made his disclaimer – saying that he is not a doctor, dietitian, or nutritionist – more prominent, posting it at the bottom of every page; and he removed the links to his diabetes “support package,” a one-on-one telephone support service, in which he walked people through their transition into the paleo diet.
“All this means is that the board has violated my First Amendment rights by silencing me and altering how I express my opinions,” he continued. “My compliance is compliance with their violation of my rights, not an agreement between us that I was wrong and they were right.”
Cooksey made it clear that his silence is only temporary – “I have absolutely no intention of complying with the board’s violation of my free speech rights. I intend to defend those rights, not only for myself, but for everyone.”
While he is lying low for now, Cooksey has told CJ he’s exploring his legal options so he can resume giving fellow diabetics, and anyone else he so chooses, dietary advice in the future.
“This isn’t the end of the fight,” he wrote. “This is not over. It’s just the end of round one.”
‘Setting the record straight’
Meantime, the board attempted to “set the record straight” in a May 1 statement explaining why it decided to close the complaint against Cooksey when it did.
“The NCBDN did indeed have some concerns regarding Mr. Cooksey’s original website and services as detailed in the document that was provided to him,” the statement said. “Given Mr. Cooksey indicated verbally and in writing his desire to be in compliance, combined with his voluntary actions that followed, the NCBDN concluded that Mr. Cooksey was in substantial compliance.”
Both the board and Cooksey agree that he made only two voluntary changes: making the disclaimer more prominent and removing links to diabetes support packages. The board’s statement says nothing about his failure to remove the dietary advice language, which Burill had told Cooksey was illegal, and which remains on the website.
The board also claims in the statement that it did not threaten to shutdown Cooksey’s website, threaten to send him to jail, or violate his freedom of speech, saying it never “ordered” him to make any changes to his website.
In his post, Cooksey said while it hasn’t yet “ordered” him to change his blog, “the board made it clear that talking about diet without a license is a crime and they could take me to court.”
Moreover, in a Jan. 28 post about the investigation, Cooksey said Burill told him it was possible for him to be convicted of a misdemeanor — which a lawyer told him could lead to a 120-day jail sentence — “but typically these cases end without litigation, if the person agrees to change their behaviors or websites.”
Federal trade group interest
In a May 3 email to CJ, Jeanne Blankenship, a vice president of the Academy of Nutrition and Dietetics, suggested CJ “consider the following information with regard to your recent” story about Cooksey’s blog. The balance of the message was the text of the May 1 state nutrition board’s “setting the record straight” statement.
Meanwhile, a story published April 5 in Forbes outlined how the academy is lobbying state legislatures nationwide to enact stricter regulation on nutritionists and the dissemination of what it calls “nutritional counseling.”
A document the academy is circulating nationwide suggests that legislation at the state level is needed to prevent nurses, pharmacists, personal trainers, chiropractors, naturopaths, and homeopaths from providing nutritional counseling unless they have undergone a dedicated 1,200-hour internship and passed a state-sanctioned exam. Failure to complete these requirements could lead to fines and prison terms.
Critics of the academy say these rules not only would violate freedom of speech but also would limit competition so that only those with government licenses could offer nutritional advice legally.
Sara Burrows is an associate editor of Carolina Journal.