Cease and desist, ordered the licensing board. The service you’re selling falls under the scope of practice we regulate. Never mind your certifications. Have you taken all the coursework we demand for our license? Have you paid the fees? Are you in the club?
It’s just a small service, they responded. It doesn’t threaten your practice. It barely touches what you license. Ask anyone about it; they wouldn’t consider it near the same thing. Why do you?
Get off our turf, said the board, or else.
Obscure turf wars are an all-too-familiar story with licensing boards. To people on the outside, however, they seem bewildering. Why force poor immigrants to become full-fledged cosmetologists in order just to braid hair? Why threaten a blogger with jail just for offering dieting advice simply because he’s not licensed to “practice nutrition”? Why try to shut down people offering teeth-whitening services at a mall kiosk for not being licensed dentists?
That last case wound up in the Supreme Court, and the licensing board lost spectacularly. A key effect of that 2015 ruling against the state in North Carolina Board of Dental Examiners v. Federal Trade Commission is that it put licensing boards at heightened risk of federal antitrust violations. The welcome fallout from that decision caused many states to rethink their licensing regimes. Delicensing and deregulation has taken place across the nation — though strangely not yet in North Carolina.
So as other states choose more occupational freedom, our licensing boards still pick turf wars. For example, a drone photographer in Goldsboro had the idea of selling homeowners on the service of taking aerial photographs of their property and using technology to create maps and 3D visualizations for them. Sounds like a great idea, no? But to the state Board of Examiners for Engineers and Surveyors, it somehow sounded like “surveying without a license,” which is a fineable and jailable offense.
Legislation before the General Assembly would try again to fend off another turf war. This one is between reflexologists and the NC Board of Massage and Bodywork Therapy.
If you were to look for “reflexologist” on the official “NC Business and Occupational License Database,” you wouldn’t find it. So what is reflexology?
According to the Mayo Clinic, reflexology is “the application of pressure to areas on the feet (or the hands)” to relieve pain or stress and to bring healing to the body. The idea is that parts of the foot correspond to parts of the body such that “Pressure applied to the foot is believed to bring relaxation and healing to the corresponding area of the body.”
Five years ago, the massage board had decided that reflexology is “specifically intended to affect the human energy field” and that “those who practice reflexology are not practicing massage and bodywork therapy.” More recently, however, the board seemed ready to remove its exemption of reflexology. Reflexologists, who have been self-regulating just fine, can already demonstrate their qualifications by voluntarily becoming a board-certified reflexologist, which requires 200-300 hours of training. Understandably, they don’t want to be forced to need 500 hours of classroom instruction for a massage and bodywork therapist license in order to practice reflexology, when they’ve already taken 200-300 hours to become a certified reflexologist.
House Bill 434 as filed would have the state of North Carolina honor the national certification of reflexologists by the American Reflexology Certification Board and, by so doing, remove the practice from the threat of licensing and regulation by the massage board. A similar bill was offered in the previous session but went nowhere.
What would be the potential harm to North Carolinians from letting the national certification board of reflexologists certify reflexologists here? Are we to think that the state massage board would be better able to direct the practice of reflexology?
It’s hard to imagine letting the massage board suddenly regulate reflexology as being either demonstrably necessary or narrowly tailored to address a legitimate state interest concerning the practice. Protecting and honoring reflexologists’ hard-earned certification would better address the concerns of the state, consumers, and certified reflexologists. Those concerns include consumer safety but also protecting competition for the benefit of consumers and service providers.
Granted, the bill would also prevent a licensing board from claiming regulatory squatter’s rights over the practice. It would be bereft of new sources of licensing fees (and new recipients of cease-and-desist letters).
What would really help put an end to the proliferation of these turf wars, however, would be for North Carolina to take bold action against its excessive occupational licensing. Other states have shown it can be done.
Jon Sanders is senior fellow of regulatory studies and research editor at the John Locke Foundation in Raleigh, North Carolina.