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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.

Comments on CrossFit Trainer Loses Nutritional Speech Suit; Battle Continues

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Kimberly ReedAugust 8th, 2019 at 12:21 pm

Del Castillo was applying her training from an unaccredited online holistic health program, offering six-month coaching programs to clients for pay. Florida wasn't telling Del Castillo what she could or could not say or what she must or must not say. She could give all sorts of nutrition advice out for free. But in order to earn a living giving advice, she needed to get a license. Reference here: https://www.google.com/amp/s/reason.com/2019/07/18/judge-rules-florida-can-require-a-license-to-give-out-diet-tips/% A CF L2 has not YET been approved by the state as meeting the requirements for licensed dietician therefore the state is correct and Del Castillo is unaccredited in the state of FL and should not be charging for nutritional advice.

Russ GreeneAugust 8th, 2019 at 4:17 pm

Kimberley, You have explained what Florida's law says and how Castillo violated it. That is irrelevant. No one disputes that Castillo violated Florida's nutritional licensure law. At issue is whether Florida's law is constitutional and reasonable. You think governments have the constitutional and moral authority to conduct sting operations against CrossFit trainers, and threaten them with jail time, for giving lifesaving nutritional advice. We don't. Specifically, the questions raised are 1. whether Florida's law is compatible with the First Amendment's guarantee of free speech 2. whether any evidence supports the Academy of Nutrition and Dietetics campaign to protect its government-enforced monopoly on nutritional services. Regarding #1, you and the dietitians seem to think that earning a living cancels the first amendment. Unfortunately for you, the Supreme Court appears to disagree. As Clarence Thomas penned in the majority opinion on NIFLA vs. Becerra, "Speech is not unprotected merely because it is uttered by 'professionals.' This Court has 'been reluctant to mark off new categories of speech for diminished constitutional protection.'" As for #2, if you and the dietitians had evidence demonstrating that threatening CrossFit trainers with jail time improved the efficacy and safety of nutritional services, you would cite it. You, and they, do not do so, for a simple reason: it does not exist. The AND would be well-advised to disengage from rent-seeking and instead stop killing type-two diabetics slowly with antiquated, iatrogenic carbohydrate-laden regimens and get in line with the American Diabetes Associations recent, belated guidelines: "○ Emphasize nonstarchy vegetables. ○ Minimize added sugars and refined grains. ○ Choose whole foods over highly processed foods to the extent possible. c Reducing overall carbohydrate intake for individuals with diabetes has demonstrated the most evidence for improving glycemia and may be applied in a variety of eating patterns that meet individual needs and preferences." The AND just might receive compelling evidence that permitting unqualified professionals to supply inaccurate dietary advice is dangerous. It will come from their own nutritionists and dietitians. Source: https://eatright.org/health/diseases-and-conditions/diabetes/carbohydrates-part-of-a-healthful-diabetes-diet

Gregory HunterAugust 8th, 2019 at 12:26 pm

Maybe Crossfit should issue a certificate for nutritional coaching and use our data to validate the methodology and validity of “eat meat, vegetables,fruits, nuts, seed, little starch, no sugar. And take away there bias via a cert from AND.

Kimberly ReedAugust 8th, 2019 at 12:33 pm

Agreed! What Crossfit is doing by supporting this lawsuit is talking out of both sides of their mouth. On the one side only certified CF trainers can offer CF classes in this case they want to support someone that doesn’t have the certification the state requires to charge $ for nutritional coaching. If this were an individual offering CF without a CF cert Crossfit would be fining them a lot more than $750 along with the order to cease and desist.

Russ GreeneAugust 8th, 2019 at 4:21 pm

Gregory, if you at this point do not think that sufficient evidence supports the disease-avoidance benefits from a whole foods diet that restricts or eliminates refined carbs and added sugar (as recommended by Crossfit for two generations), nothing will change your mind. Kimberley, If the Academy of Nutrition and Dietetics wanted to follow CrossFit's footsteps and only restrict who would offer AND (tm) nutritional services, we would welcome that policy change immediately. Such a scenario would permit CrossFit trainers to offer nutritional services as long as they avoided the terms AND, or even registered dietitian / nutritionist. Instead, the AND continues to lobby for regulations that outlaw the generic practice of nutritional services, and not just the titles and brand names that professionals can use. That's the problem.

Gregory HunterAugust 8th, 2019 at 11:43 pm

Russ, I actually completed the paleo challenge 4 years ago and got off three BP meds. Twice a day! The RX of Diet and Crossfit has changed my life. My point is don’t let the Judges hide behind their laws. However winning against them courts protects all affiliates

Mark BuecheAugust 9th, 2019 at 12:28 pm

You are all making a pretty big assumption that she was in fact giving out Crossfit endorsed information. Nothing in the case seems to say this. If the organization is 100% behind their nutrition philosophy; then why are they fighting it on a 1st amendment argument? However if you all want to argue based on evidence; might I suggest “The China Study”. It is arguably the largest nutritional study ever completed, but be prepared to have your anecdotal evidence ready. This one really flies in the face of your cultural beliefs. Enjoy.

Anthony SwartzAugust 9th, 2019 at 12:54 pm

Mark, not sure I'm following your comments about the China Study? Have you seen the work by Denise Minger essentially showing that it has many fallacies? https://deniseminger.com/the-china-study/ Regards,