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CrossFit Trainer Loses Nutritional Speech Suit; Battle Continues

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ByCrossFitAugust 7, 2019

CrossFit has always recognized that nutrition is fundamental to health and fitness. In fact, CrossFit’s theoretical hierarchy of development “starts with nutrition,” as Greg Glassman wrote in 2002’s “What Is Fitness?” This awareness is reflected in the CrossFit Level 1 Certificate Course nutrition lecture, as well as the services CrossFit affiliates offer their members, which range from nutrition lectures to food logs and meal plans. Conversely, where nutrition is ignored, affiliates and their members make far less progress along the continuum from sickness to wellness to fitness.

Professional trainers sharing lifesaving information should not have to fear penalties, undue restrictions, or finding themselves on the wrong side of the law. Unfortunately, nutritional licensure laws criminalize this service in some U.S. states. In many jurisdictions, CrossFit trainers and affiliates have been discouraged from offering nutritional advice; in some cases, they have even been the victims of sting operations and threatened with jail time. To protect CrossFit trainers’ right to share essential information on nutrition and health, and the right of their clients to receive it, CrossFit, Inc. has lobbied against nutritional licensure in several states, notching several notable successes.

CrossFit faces stiff opposition in this fight for freedom of nutritional speech, however. This resistance comes in the form of the Academy of Nutrition and Dietetics (AND), the lobbying body for registered dietitians, as well as the government officials and corporate sponsors who work with them.

Consider the case of CrossFit Level 2 Trainer Heather Kokesch Del Castillo. Del Castillo, the wife of a U.S. Air Force airman, moved from California, where nutrition speech is fully protected, to Florida, where it is highly restricted. The state of Florida subjected Del Castillo to an undercover sting operation, fined her, and threatened her with jail time if she continued providing nutritional advice (a Florida CrossFit affiliate was subjected to a similar ordeal in 2017 and changed their practice regarding nutrition recommendations as a result).

Del Castillo and her attorneys at the Institute for Justice “filed a federal First Amendment lawsuit in 2017 challenging this restriction on her speech.” CrossFit, Inc. supported the Institute for Justice in this suit as part of CrossFit’s commitment to defending the ability of CrossFit trainers to serve their clients without undue restrictions. Unfortunately, on July 17, 2019, federal judge Casey Rogers rejected Del Castillo’s suit. Judge Rogers based his decision on the dubious grounds that licensure “only implicates speech as part of the practice of dietetics, and its impact on speech is merely incidental to regulating who can practice.” Hence, Judge Rogers concluded, the law did not violate the First Amendment.

Two details from Rogers’ decision merit scrutiny. First, after decades of nutritional licensure, the dietetics lobby has failed to compile any evidence that licensure improves safety or quality. The judge did not cite a single study or even anecdote demonstrating any ill effects resulting from permitting individuals unlicensed by the AND or other restrictive bodies to give nutritional advice. Nonetheless, Rogers alleged that “a purported lack of empirical support or evidence for the DNPA (the licensure law) does not render the law invalid under rational basis review.” He cited the Locke vs. Shore decision, concluding that a licensure law “will not be invalid simply because the rationale for the law ‘seems tenuous.’”

An apt word, “tenuous.” The only rationale for nutritional licensure cited in Rogers’ decision is hypothetical. He presented the Florida Department of Health’s argument that “a carbohydrate-restricted diet, without supplemental folic acid intake, presents increased risks of birth defects to women who are pregnant or who may become pregnant.” Not only is this supposed rationale hypothetical in the sense that there is no real person or case identified, it is scientifically incorrect. Spinach, asparagus, broccoli, liver, eggs, and avocado supply folic acid and easily fit into a “carbohydrate-restricted diet” without any need for “supplemental folic acid intake.” It is troubling to consider that inaccurate dietary information presented in the context of a hypothetical situation can be sufficient grounds for a state to restrict the free speech of its citizens.

The AND celebrated Rogers’ decision, portraying it as a “victory for the public and for registered dietitian nutritionists.” Earlier this year, the AND claimed it “supports dietary licensing laws only for advice on medical conditions, such as diabetes and obesity.” The AND’s positions are not reconcilable. The Florida law defended restricted speech broadly, not just in the case of specific medical conditions. If the AND is ashamed of defending such legislation, it should change its position rather than misleading the public about its true agenda.

Del Castillo’s case is not settled. The Institute for Justice will appeal the Del Castillo decision, with CrossFit’s support. But this case illustrates the need for constant defense and vigilance on the part of CrossFit, Inc. and its affiliate community against the encroachment of those entities that seek to suppress factual nutritional information in partnership with food and beverage industry sponsors, or to restrict the good work of CrossFit’s training cohort for competitive advantage, regardless of the devastating effects such actions may have on the health of those barred from accessing essential nutritional information.

CrossFit, Inc. will continue to fight to protect its affiliates’ and trainers’ rights to speak freely about the foundational elements of the CrossFit methodology and human health.

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