CHARLOTTE — The North Carolina Board of Dietetics/Nutrition is threatening to send a blogger to jail for recounting publicly his battle against diabetes and encouraging others to follow his lifestyle.
Chapter 90, Article 25 of the North Carolina General Statutes makes it a misdemeanor to “practice dietetics or nutrition” without a license. According to the law, “practicing” nutrition includes “assessing the nutritional needs of individuals and groups” and “providing nutrition counseling.”
Steve Cooksey has learned that the definition, at least in the eyes of the state board, is expansive.
When he was hospitalized with diabetes in February 2009, he decided to avoid the fate of his grandmother, who eventually died of the disease. He embraced the low-carb, high-protein Paleo diet, also known as the “caveman” or “hunter-gatherer” diet. The diet, he said, made him drug- and insulin-free within 30 days. By May of that year, he had lost 45 pounds and decided to start a blog about his success.
But this past January the state diatetics and nutrition board decided Cooksey’s blog — Diabetes-Warrior.net — violated state law. The nutritional advice Cooksey provides on the site amounts to “practicing nutrition,” the board’s director says, and in North Carolina that’s something you need a license to do.
Unless Cooksey completely rewrites his 3-year-old blog, he could be sued by the licensing board. If he loses the lawsuit and refuses to take down the blog, he could face up to 120 days in jail.
The board’s director says Cooksey has a First Amendment right to blog about his diet, but he can’t encourage others to adopt it unless the state has certified him as a dietitian or nutritionist.
Jan. 12, Cooksey attended a nutrition seminar at a church in Charlotte. The speaker was the director of diabetes services for a local hospital.
“She was giving all the wrong information, just like everyone always does — carbs are OK to eat, we must eat carbs to live, promoting low-fat, etc.,” Cooksey said. “So I spoke up.”
After the meeting he handed out a couple of business cards pointing people to his website.
Three days later, he got a call from the director of the nutrition board.
“Basically, she told me I could not give out nutritional advice without a license,” Cooksey said.
He said she also told him that his website was being investigated and gave him some suggestions about how to bring it into compliance.
If he does not go along, the board could file an injunction and “essentially shut the website down,” Cooksey said.
Charla Burill, the board’s director, told Carolina Journal she could not discuss the details of Cooksey’s case because his website is still under investigation, but agreed to talk about the law in the hypothetical.
It’s not necessarily against the law to give your sister or your friend nutritional advice, she said. And it’s not necessarily against the law to use a blog to tell people what they should eat.
Where it crosses the line, Burill said, is when a blogger “advertises himself as an expert” and “takes information from someone such that he’s performing some sort of assessment and then giving it back with some sort of plan or diet.”
Cooksey posted a link (6.3 MB PDF download) to the board’s review of his website. The document shows several Web pages the board took issue with, including a question-and-answer page, which the director had marked in red ink noting the places he was “assessing and counseling” readers of his blog.
“If people are writing you with diabetic specific questions and you are responding, you are no longer just providing information — you are counseling,” she wrote. “You need a license to provide this service.”
The board also found fault with a page titled “My Meal Plan,” where Cooksey details what he eats daily.
In red, Burril writes, “It is acceptable to provide just this information [his meal plan], but when you start recommending it directly to people you speak to or who write you, you are now providing diabetic counseling, which requires a license.”
The board also directed Cooksey to remove a link offering one-on-one support, a personal-training type of service he offered for a small fee.
Cooksey posts the following disclaimer at the bottom of every page on his website:
“I am not a doctor, dietitian, nor nutritionist … in fact I have no medical training of any kind.”
In fact, he brags about his lack of formal training throughout his blog.
“It’s so simple,” he told CJ. “I cut carbs, I reduced my drugs and insulin until I didn’t need them at all. If I can figure that out, why in the hell can’t all these other people [in the medical field]?”
Burill said the disclaimer may not protect a nutrition blogger from the law.
“If I’ve given you reason to not worry that I don’t have a license because I have all these other reasons I’m an expert, you could still harm the public,” she said. “At least you’re not trying to mislead the public, but you’re trying to get the public to trust you.”
It’s a fine line between what’s legal and what’s not when it comes to talking about nutrition.
“Anyone can talk about anything they want,” Burill said. “That’s a First Amendment right, so to speak.”
For example, a person could write a blog advocating vegetarianism, she said.
“Now if you advertised that you’d taken classes in nutrition, you’ve worked at [the federal government’s Food and Nutrition Service] for three years, and you say ‘I believe everyone should be a vegetarian, and I’m here to help you if you want to change your diet’ [that could be crossing the line],” Burill said.
“A vegetarian diet would be a little bit harder [to prosecute] because a vegetarian is not really like a medical diet.”
Burill said if Cooksey refuses to come into compliance with the law, the board could file for an injunction.
Declan McCullagh, a CBSNews.com correspondent who writes about online free speech, says the board probably is violating Cooksey’s First Amendment rights.
“The First Amendment says state and federal governments ‘shall make no law’ abridging freedom of speech,” McCullagh said. “It doesn’t say ‘except for what annoys the North Carolina Board of Dietetics and Nutrition.’”
McCullagh pointed to a sentence in Cooksey’s blog the board didn’t approve of: “I do suggest that your friend eat as I do and exercise the best they can.”
“If that language appeared in a book or a magazine article, do you think the board would complain?” McCullagh asked. “How about if someone said that to a friend over dinner at a restaurant? Of course not. But because it’s on the Web, they seem to think that the First Amendment no longer applies.”
McCullagh said the board may be on more solid ground in its complaint about the telephone support packages Cooksey offers. “But … if customers are paying $97 or $149 or $197 a month to have someone listen, that sounds a lot like life coaching, which doesn’t require a license.”
“In general, I think that as long as someone is very clear that they’re not a licensed dietician, state officials can probably find better uses of their time,” he said.
Cooksey said the board both has violated his freedom of speech and done a disservice to the people of North Carolina. He said all he’s trying to do with his blog is provide an alternative to the nutritional advice pushed by mainstream sources on what they say people should be eating.
Cooksey said he’s seeking legal assistance in case the state decides to take further action against him.
Sara Burrows is an associate editor of Carolina Journal.