In New Jersey the Practice of Nutrition
is not the Practice of Medicine

ã 1997, 2003

by Ralph Fucetola JD, ralph.fucetola@usa.net, www.vitaminlawyer.com
LifeSpirit Organization main page, www.lifespirit.org
LifeSpirit Center home page, www.lifespiritcenter.org

Index:

Public Policy, PubPol
History and Definitions, History
Access to Alternatives, Access
Practice of Nutrition, Practice
Bioenergetic Equipment, Bioenergy
Nutritional Evaluation, Evaluation
Constitutional Rights, Privacy
Private Activities, Activities
Code of Ethics, AMA
Conclusion, Conclude

Public Policy

It is the Public Policy of the State of New Jersey not to license Nutritionists, nor to put their practices under the control of a State Board and the Division of Consumer Affairs of the Department of Law.

Legislative history shows that extensive public hearings were held in 1984 regarding the licensing of Nutritionists. Since those hearings, the State Legislature has refused, on eight occasions, to adopt licensing bills. During 1995 a voluntary certification bill did pass the Legislature, but was vetoed by the Governor. It is therefore the expressed, long-standing policy of the State of New Jersey not to license Nutritionists, and not to subject Nutrition to the type of regulation usual for licensed professions. There are some 45 licensed professions in New Jersey, many with their own State Boards, and all under the oversight of the Division of Consumer Affairs of the Department of Law. The Legislature and Governor have specifically elected to exclude Nutritionists from such State Regulation, with the Governor expressing the general view, in her May 8, 1995 Veto Message: "The contemplated increased State regulation would not provide any increase in protection or other measurable benefit to the public." The Legislature, responding, did not override the Veto.

The Administrative Rules of the Division of Consumer Affairs, N.J.A.C. 13:45-2.1 (d), provides: "The sale of merchandise between two private individuals shall not be deemed to be within the jurisdiction of the Division..." This provision reflects our State's Public Policy, that the Division should police public consumer affairs. Private transactions between individuals are beyond the scope of its authority.

The Federal Dietary Supplement Health and Education Act of 1994 offers significant protection to persons who provide dietary substances. In that Statute, Congress notes: "...consumers are placing increased reliance on the use of nontraditional health care providers...to obtain a more holistic consideration of their needs..." (Section 2, Findings) The Statute then continues to provide for the dissemination of truthful information about nutrition. This new Federal provision was intended to create nationally uniform requirements for the providing of nutritional information, including nutritional consulting and recommendations regarding dietary supplements. In so far as the Nutritionist was providing information and recommendations about dietary substances, such activities are protected by Federal law and cannot be prevented by the State's licensing requirements.

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History & Definitions

When New Jersey declared its independence as a Sovereign State, it adopted the Laws of England as the Common Law of the State. Among the Laws of England so adopted is the Herbalist's Charter, an Act of Henry the Eighth (in the Third Year of his reign). It is astonishing to note that many of the issues presented in this case are the same issues which the Act of Parliament addressed. In the Sixteenth Century, as in the Twentieth Century, licensed physicians and surgeons were going to Court to ban the activities of the nutritionists of their day, the herbalists. Parliament ordered an end to this misuse of the Courts to enforce licensure, protecting the nutritionists from "suit, vexation, trouble, penalty, or loss of their goods..." This ancient Act of Parliament applied to England and the King's "other dominions" including, of course, the Colony, and later, State of New Jersey. This Act has never been repealed, and thus remains part of our Common Law to this day, offering protection to persons such as the Nutritionist.

New Jersey first adopted a licensing law for medicine in 1894. In that law, the branches of medicine to be studied were said (in Section 7) to include "homeopathy or eclecticism...therapeutics; obstetrics and gynecology; practice of medicine, including diseases of the skin, nose and throat; surgery, including surgical anatomy and diseases of the eye, ear and genito-urinary organs...hygiene" Section 8 provided that without a license, no one could "prescribe, direct, recommend, advise, apply, give, or sell, for the use of any person or persons, any drug or medicine or other agency or application for the treatment, cure or relief of any bodily injury, infirmity or disease..."

In 1939, the licensing structure was updated. Title 45:9-5.1 defined the practice of medicine and surgery as "any branch of medicine and/or surgery, and any method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition...[including] the practice of osteopathy and chiropractic..." Homeopathy, eclecticism (which was the practice of herbal medicine and nutritional treatment) and hygiene were excluded from the new definition, and no longer considered part of the standard practice of medicine.

In 1953 the Statute was further revised, giving us substantially the law we have today. The 1939 definitions were not changed, though, over the subsequent years, chiropractic has also been excluded from medicine.

The State Board has promulgated extensive Regulations, found in N.J.A.C. 13:35-1, et seq., which, among other things, set forth the requirements for State approved medical education. The standard practice of medicine is what is taught pursuant to these Regulations. The University of Medicine and Dentistry of New Jersey has developed an extensive course of study for physicians, pursuant to the Regulations and national medical education standards. The scope of the practice of medicine is defined in the Board's Regulations and in the Course of Study, as shown in the Catalogue, that the State Medical University provides. These provide the standard of practice of medicine in New Jersey.

On the other hand, our State Legislature, in the 1995 Bill gave us a definition of Nutrition: "'Nutrition' means the integration and application of principles derived from the science of nutrition, biochemistry, physiology, food, food management, and from behavioral and social sciences to achieve and maintain a healthy status..."

The standard of alternative practice, by an MD, is the same as the standard for licensed practice.  In the case of State v McDonagh,  the Missouri Supreme Court stated, in 2003, that Dr. McDonagh, must "use that degree of skill and learning used by members of the profession in similar circumstances. By analogy, one doctor may use medicine to treat heart problems while another might chose to perform a by-pass and a third to perform angioplasty, yet all three may be applying the requisite degree of skill and learning. That they came to differing conclusions by applying that skill and learning does not make one negligent and one non-negligent. So too, here, if Dr. McDonagh's treatment, including his use of a diet and exercise regimen, and the lack of evidence of harm from his approach, demonstrates the application of the degree of skill and learning ordinarily used by members of his profession, then it is not a basis for discipline under the statute, even if other doctors would apply these facts to reach a different result."

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Access to Private, Unorthodox and Alternate Modalities

The Medical Practices Acts do not prohibit persons from receiving unorthodox treatments, which are not part of the standard practice of medicine, nor from dispensing with medical treatment entirely, and seeking other means to achieve and maintain health.

"The state has not restricted the cure of the body to the practice of medicine and surgery -- allopathy, as it is termed, -- nor required that, before anyone can be treated for any bodily ill, the physician must have acquired a competent knowledge of allopathy and be licensed by those skilled therein. To do that would be to limit progress by establishing allopathy as the state system of healing, and forbidding all others. This would be as foreign to our system as a state church for the cure of souls. All the state has done has been to enact that, when one wished to practice medicine or surgery, he must, as a protection to the public [not to the doctor], be examined and licensed by those skilled in surgery and medicine. To restrict all healing to that one kind -- to allopathy, excluding homeopathy, osteopathy, and all other treatments -- might be a protection to doctors in surgery and medicine; but that is not the object of the act, and might make it unconstitutional, because creating a monopoly." North Carolina's Supreme Court in State v MacKinght, 42 S.E. 580, 1902 at p 582.

Truly, "Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society..." Sweeney v New Hampshire, 354 US 234, p.251.

In Hillman/Kohan Eyeglasses, Inc v New Jersey State Board, 169 NJ Super 259, the Court observed that, absent compelling health reasons, consumers should have choices in the competitive marketplace, and further, that if the legislature had intended to create a monopoly, it would have done so by specific grant of monopoly, which it did not do in the case of optometry, nor, we assert, in the case of medicine.

Nutritionists' clients have the right to obtain unlicensed, private professional health care services. The Southern District of Texas case of Andrews v Ballard (498 F Supp 1038, 1980) is cited as a leading authority for the propositions that (1) a decision to obtain (in this case) acupuncture needle treatments from one not licensed as a medical doctor is a constitutional right encompassed by the right of privacy (p.1048) and (2) the provisions of the medical practices act, insofar as they limit the use of acupuncture needles to licensed physicians, are unconstitutional (p.1051, et seq.).

In the case of State v Biggs (46 SE Reporter 401, 1903) the North Carolina Supreme Court dealt with a person who was advising people as to diet, and administering massage, baths and physical culture. In the Biggs case, the defendant "advertised himself as a 'nonmedical physician'...[and] held himself out to the public to cure disease by 'a system of drugless healing'..." p.401. That Court held that there could be no "state system of healing" p.402 and while "Those who wish to be treated by practitioners of medicine and surgery had the guaranty that such practitioners had been duly examined...those who had faith in treatment by methods not included in the 'practice of medicine and surgery' as usually understood, had reserved to them the right to practice their faith and be treated, if they chose, by those who openly and avowedly did not use either surgery or drugs in the treatment of diseases..." p.402. Biggs was acquitted.

There is no State interest in controlling non-commercial, non-profit, private clubs where people associate together for the improvement of their well-being. The Governor and Legislature have made it clear that it is not the Public Policy of this State to regulate Nutrition as a licensed profession, under a State Board and the oversight of the Attorney General' Division of Consumer Affairs. Often, such associations are also religious in nature, raising other significant constitutional issues, but, the basic concept is that of private association for private purposes. The public significance of this is that many people are seeking alternatives to dangerous and ineffective State-licensed medicine. Many cancer or AIDS victims clubs have been formed, where HIV-positive individuals share the costs of such non-medical modalities as Ozone generators, or megavitamin programs. This sort of private associational activity has occurred, in the context of the importation of unapproved drugs or dietary substances by such individuals and groups, under the Federal Drug Administration's Regulatory Procedures Manual, Chapter 9-71, Coverage of Personal Importation. This Regulation permits the private importation of substances that are not Controlled Dangerous Substances.

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The Practice of Medicine and the Practice of Nutrition

In State of North Carolina v Howard, 337 S.E. Rpt. 598, 1985, the defendants were convicted of practicing medicine without a license. The defendants were held to have "treated" disease naturpathically, and thus to come under the purview of the statute. The Court stated, though, that the statute "does not prohibit the terminally ill from receiving unorthodox treatment..." (p 603).

In Heintze v NJ State Board of Medical Examiners, 107 NJL 420, 1936, it was held that it was the practice of medicine to claim to cure human disease or conditions with dietary supplements and non-medical equipment. The key in this case was not the specific substances or equipment used, but, rather, the claim that such equipment would "cure" human disease or condition. In other cases, the use of non-medical equipment or dietary substances, without claims of treatment or cure, have been held not to constitute the practice of medicine.

Attorney General On Behalf of the People of the State of Michigan v Beno, 335 N.W. 2d. 31, 1983 held that using non-medical diagnostic techniques, where the client may be led to believe that the practitioner is capable of detecting health ailments is misleading to the public and constitutes violation of the act. The key to this case is the potential harm of misleading the public to believe that such techniques could diagnose disease.

In Foster v Georgia Board of Chiropractic Examiners, 359 S.E.2d 877, 1987, the State Supreme Court commented on dietary substances, page 878, "These substances may be sold without prescription and are, in fact, sold in food stores by merchants and other lay persons; in addition, the substances are not habit forming and do not require medical supervision for use."

Under certain circumstances, even the prescribing of dietary substances for the treatment of disease may not be part of the practice of medicine under the Medical Practices Acts.

The New Jersey State Supreme Court reminded us, in its recent decision in the case of State v Womack, 145 NJ 576, 1996, that "under certain circumstances" (p588) the prescribing of vitamins as treatment for disease could be the practice of medicine. Not under all circumstances. Those circumstances include, at a minimum, situations in which the vitamins are being prescribed as treatment for recognized disease. Thus, a licensed physician will --in rare circumstances-- prescribe small amounts of Vitamin C to prevent scurvy. No licensed physician, as part of the standard practice of medicine, would ever prescribe several grams of Vitamin C daily to nourish the many metabolic processes that use large amounts of Vitamin C. In deed, licensed physicians are not qualified to recommend any use above the small amount needed to ward off deficiency disease. The distinction between dietary deficiency and deficiency disease is the distinction between the stressed metabolic processes of insufficient Vitamin C and the life-threatening disease of scurvy. The former is the realm of the Nutritionist, the later the field of the licensed physician.

The Supreme Court of Mississippi has defined the circumstances in which the use of vitamins may be medicine, "We are fully cognizant that any layman can obtain such vitamins and that any retailer can sell such vitamins. Purchase or sale of vitamins is not...condemned here. Rather the vice condemned and that which constitutes the unlicensed practice of medicine is (1) prescription of vitamins, (2) to cure, (3) an ailment or disease, (4) for compensation..." Norville v Mississippi State Medical Association, 350 So.2d 1084 (1978) at p. 1089.

The State Statutes specifically limit their scope to any "method of treatment" (N.J.A.C. 45:9-5.1). The Nutritionist does not "treat disease." The distinction between nutrition and methods for treatment of disease is the distinction between (1) feeding the body dietary substances that are natural to it, intending to nourish the normal form and function thereof, and (2) treating the body with dangerous drugs and invasive techniques which are foreign to the body, intending to change the form and function so as to attack a specific disease entity or condition. The Nutritionist does not use any "method of treatment" which is part of the State licensed practice of medicine and he is not engaging in the "unauthorized practice of medicine."

In Harris v State of Mississippi, 229 Miss. 755, 1957, a chiropractor was "treating disease" by injections of vitamins. An issue in the case was what any method or agency of treatment meant. The Court said of "other agency" that it would "construe the words to mean other agency akin to or of like character with a drug or medicine. 41 Am Jur Physicians and Surgeons, Section 27, p157." (at p766). Likewise, in New Jersey, where the Statute uses the word "method" instead of "agency, " the words should be construed similarly.

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Bio-Energetic Equipment

In State Board of Medical Examiners v Dussinger, 9 NJ Misc.Rpt. 423, 1931, the Supreme Court stated "The writ of certiorari in this case brings up for review a determination of the First District Court of the city of Newark, that the defendant had not violated section 10 of an act to regulate the practice of medicine. Pamph. L. 1894, p. 454, as amended.

"The District Court judge found that there were no electrical treatments given. The signs displayed indicated that the place was a gymnasium where baths and massage were given. The devices employed were baths, heat, massage and an electrical vibrator, together with heat from a sun ray lamp...After carefully examining the whole record, we reach the conclusion that the evidence supports the findings of the court below."

Of specific significance with regard to a Nutritionists' use of bioenergetic equipment for the non-medical treatment purpose of feeding the client nourishing bioenergies is a particular New Jersey Statute. N.J.A.C. 45:9-14.5a reads:

"a. A chiropractor licensed pursuant to PL 1989, c. 153 (c.45:9-41-17 et seq.) or chapter 9 of Title 45 of the Revised Statutes shall not use an employee to administer physical modalities to patients unless that employee is a health care provider licensed in this State.

"As used in this subsection, physical modalities mean ultraviolet (B and C bands) and electromagnetic rays including, but not limited to deep heating agents, microwave diathermy, short-wave diathermy and ultrasound.

"b. Nothing in this section shall be construed to prohibit any person licensed to practice in this State under any other law form engaging in the practice for which he is licensed."

This Statute tells us, first, that the use of "electromagnetic rays" is certainly no part of an exclusive State medical license. Second, it tells us that there are "other" laws under which one may be "licensed." In section a. the Statute is quite careful to list specific statutory provisions and to persons "licensed in this State..." In section b. the Statute only refers to "any person licensed to practice in this State under any other law..." We contend that this includes persons privately licensed under the common law.

Use of Hypodermic Needles

The mere use of a hypodermic needle is not the practice of medicine. It is the intent which governs.

In Harris v State of Mississippi, 92 So.2d 217, 1957, a chiropractor was prosecuted for practicing medicine, but the Court held that the use of a hypodermic needle itself would not constitute the illegal practice of medicine.

In King v Board of Medical Examiners, 151 Pac. Rpt. 2d 282, 1944, a California "drugless practitioner" used a needle to extract a blood sample for a hemoglobin test. The State alleged that he penetrated the tissue of two individuals for diagnosis or treatment of disease. The Court held that no tissue was penetrated in the treatment of any disease or condition. His blood evaluation was not done as diagnosis or treatment of disease and thus, not medicine.

In State v MacKnight, 42 S.E. Rpt. 580, 1902 an osteopath was held not to be practicing medicine, although, on two occasions he used a small surgeon's knife to open an abscess in the mouth of a patient, but charged no fee for this service.

In Andrew v Ballard, 498 F. Supp. 1038, 1980 an acupuncturist was attacked for practicing medicine as he was using needles to treat disease. The Federal District Court held that, where a state sought to prohibit all but licensed physicians from using needles in treatment, such prohibition violated fundamental rights.

These cases are supported by New Jersey's statutes regarding hypodermic needles. There is no State statute prohibiting the administration of dietary substances taken into the body, whether oral, sublingual, injection, etc. All of the statutory prohibitions concern needles used with Controlled Dangerous Substances (Schedule One to Schedule Five drugs); see N.J.S.A. 24:21-51 and 2C:36-6 regarding hypodermic needles, and N.J.S.A 24:21-1, 2 and 3 regarding the definition of dangerous drugs. The law explicitly excludes "food" (i.e., dietary substances) from the definition of "drug."

In general, drugs are defined by statute, and in the Comprehensive Drug Reform Act of 1986 (N.J.S.A. 24:21-2) the definition is given as: "(b) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (c) substances (other than food) intended to affect the structure of any function of the body of man or other animals; and (d) substances intended for use as a component of any article specified in subsection (a), (b) and (c) of this section; but does not include devices, or their components, parts or accessories..." [underline added].

The Statutory references to hypodermic needles (N.J.S.A. 2C 36-6 and 24:21-51) shows that many persons and institutions are authorized to have needles. It is clear that individuals can self-inject, and family members or other associates may help people self-inject. The injection of non-Controlled Dangerous Substances is not unlawful. Dietary substances, and even Oxygen (in the form of Ozone) are not Controlled Substances.

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Non-Medical and Nutritional Evaluation Techniques

The use of non-medical evaluation techniques, or the use of the results of standard diagnostic tests within the range of normality, to evaluate nutritional status is not part of the practice of medicine under the Medical practices Acts. Many Nutritionists use such evaluation techniques as Client Histories, Standard Blood Tests (within the range of normality), Darkfield Blood observations, kinesiology, hair mineral tests and the like. While Nutritionists may not "diagnose disease" they may evaluate nutritional status by observing the client and the client's nutritional habits.

In State Board of Medical Examiners of New Jersey v Plager, 118 NJL 431, 1937, the taking of blood pressure and the mere announcement of the results was not practicing medicine, since blood pressure is not a disease and thus there was no diagnosis of disease. Likewise, using other non-diagnostic tests, or using standard tests such as blood test results within the normal range to evaluate nutritional status does not constitute diagnosis of disease.

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Religious and other Constitutional & Privacy Rights Asserted

An unlicensed practitioner may practice within the accepted standards of his or her unlicensed profession, so long as same does not hold him or herself out to the public to be licensed.

The New Jersey case of Ritt v Ritt (98 NJ Super 590, 1967) describes the distinction between licensed and unlicensed professions in the context of licensed psychologists. In that case the Court stated: "Members of other professional groups doing work of a psychological nature (N.J.A.C. 45:14B-8) are not prevented from doing work of a psychological nature consistent with the accepted standards of their respective professions, provided however, that they do not hold themselves out to the public by any title or description stating or implying that they are psychologists or licensed to practice psychology. Hence, though they may apply psychological principles and procedures in the assessment, counseling or psychotherapy of individuals for the purposes of promoting the optimal development of their potential or the amelioration of their personality disturbances and maladjustments as manifested in personal and interpersonal situations, they need not have a license." (p.594)

New Jersey Law specifically excepts ministerial healing from the purview of the Medical Practices Acts, and Federal and State constitutional and statutory law protect such Religious, Associational and Communication activities.

Where the practitioner is a licensed and ordained Minister and trained Nutritionist, he or she uses the methods appropriate to these Disciplines. Primarily, the Nutritionist teaches and counsels. "Likewise, the state may prohibit the pursuit of medicine as an occupation without its license but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought." Thomas v Collins, 89 L Ed 430, p.448.

In New Jersey a duly ordained and licensed minister is permitted under N.J.A.C. 45:9-21(f) to minister to the sick and suffering, and under N.J.A.C. 45:9-18.1 to provide spiritual healing . The practitioners' clients have privately licensed him or her to provide the services provided. A license is, under dictionary definition, permission to do that which would otherwise be a trespass.

It is the practitioner's private license to engage in private conduct which is protected by Common Law, Constitutional Law (and specifically the Religious, Speech and Associational Rights protected by the First Amendment to the United States Constitution), Case Law and, even to some extent, Statutory Law. The State has no jurisdiction to extend its statutory scheme to control State licensed physicians, by fiat, to the private practice of the unlicensed profession of Nutrition. The State Constitution tells us: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." (Article I, Par. 1).

The practitioners' and clients' Religious, Associational and Speech Rights, are protected by the First Amendment, and their Privacy Rights are protected through the First, Ninth and Fourteenth Amendments.

The State does not have unlimited inquisitorial power to "make inquiries about a person's beliefs or associations, its power is limited by the First Amendment. Broad and sweeping state inquiries into these protected areas...discourages citizens from exercising rights protected by the Constitution..." Baird v Arizona, 401 US 1, p.6. Among those Rights, is the Freedom to Choose to seek out the Nutritionist, and seek his advice and teaching. For, the "liberty mentioned in the...Fourteenth Amendment has been held to mean not only the right of the citizen to be free from the mere physical restraint to his person...but also the right...to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any livelihood or avocation..." Allgeyer v Louisiana, 165 US 578 (1897). Further, "It is conceded that every citizen has a right to follow any lawful business or profession which is not injurious to the public or a menace to the health, safety or welfare of society, free from regulation by the exercise of the police power of the state except in cases of necessity for such health, safety or welfare, and when its authority is so interposed...it must be by means reasonably necessary for the accomplishment of that purpose..." Rosenblatt v California State Board of Pharmacy, 158 Pac. Rpt. 2d 199, p202.

The Supreme Court has "repeatedly held that rights of association are within the ambit of the constitutional protections afforded by the First and Fourteenth Amendments..." Gibson v Florida Investigation Committee, 9 L Ed 2d 929, p.934. "This Court has recognized the vital relationship between freedom to associate and privacy in one's associations...Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs..." NAACP v Alabama (357 US, at 462).

One who did not prescribe drugs or material remedy, but preached triumph of the mind over ills of the body and the power of will to drive out disease was not "engaged in the practice of medicine..." State Board of Medical Examiners v Maxwell, 13 NJ Misc. 855, 1930.

In the case of Andrews v Ballard, 498 F Supp 1038, 1980, the privacy issue was paramount. In this case, Texas sought to limit acupuncture to licensed physicians only. The Federal Court held that the privacy rights of the patients protected their receiving of acupuncture from unlicensed persons. This case started when the Texas Medical Board, without hearing from acupuncturists, decided that acupuncture was part of the practice of medicine, although no licensed physician in Texas was available to provide acupuncture. The Court held that many individuals seek acupuncture only after Western medical techniques have failed them. "Denied the right to choose acupuncture, they are condemned either to endure without hope the misery that is theirs or to continue to expend their energies and resources on treatment that brings them no relief...This Court can only conclude that the challenged articles and rules effectively render acupuncture treatment unavailable in the State of Texas. In practical terms, they not only "burden an individual's right to decide [to obtain acupuncture treatment] by substantially limiting access to the means of effectuating that decision," they essentially prohibit the decision entirely. Carey v Population Services Int'l, 431 US 678, at 688." (p 1047)

The Court noted the irony of the situation where the Texas Medical Board "has prohibited the formally trained from practicing, but has allowed the formally untrained, who it admits are not schooled enough in acupuncture to effectively supervise acupuncturists.... One court has held that laws limiting the practice of acupuncture to licensed physicians are so ill-conceived that they lack a rational relationship to a proper legislative purpose. Wensel v Washington, supra. [Super. Ct. D.C. Civ. Div. 1975, referenced in Footnote 2, p1039]. " (p1055)

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Private Activities

A non-medical practitioner must never advertise, or hold him or herself out to be a "doctor" or "MD" (or "ND" or naturpath, or anything similar). The Nutritionist must only engage in private activities and never advertise services. The practitioner must always been careful never to use the words "diagnose," "prescribe," "treat" or "cure" in regard to privately requested services. The Nutritionist does not diagnose or treat disease. The practitioner believes that offering nutritional support for persons with diagnosed disease does not constitute the practice of medicine.

The Nutritionist starts from rational premises, which can be supported by the most recent scientific literature, that persons with serious illnesses and persons who are undergoing such extensive therapies as chemo-therapy and radiation, can become so debilitated that, even if able to eat a normal diet, they may not assimilate sufficient nutrition to support the normal form and function of the body. Such clients may need dietary supplementation, even on such a basic level as water and oxygen. Such clients may be so debilitated that injected nutrition may be warranted. Injecting dietary substances for the nourishment of normal form and function, and not as treatment for disease, does not constitute the practice of medicine.

The Nutritionist believes that each person has the right to go to whomever that person chooses for nutritional information needs. The State cannot question that private choice and Private License. Since the only way people hear of the private practitioner is by word-of-mouth, the communication of his or her availability is protected by First Amendment Freedom of Speech and the Supremacy Clause. The actual services are privately provided, under Private License, and do not come within the purview of any public body.

The Code of Medical Ethics of the American Medical Association has also begun to acknolwedge the role of alternatives in healing. The original Hypocratic Oath, with its injunction to "Do no harm." has been replaced by a complex Code detailing the relationship between physician and patient and alternative practitioner. Thses most recent changes, during the early 1990's, were inspired by anti-trust lawsuits brought during the 1980's by chiropractors and others. While "treatment which has no scientific basis" is condemned (Opinion 3.01), under Opinion 3.04, physicians are free to refer a patient "for therapeutic or diagnostic services to another physician, limited practitioner or or any other provider of health care services permitted by law to furnish such services, whenever he or she believes that this may benefit the patient." Thus, unscientific "treatment" is distinguished from "health care services permitted by law" and "treatment" -- which means the use of standard medicine and surgery to "cure" disease -- is distinguished from other health care services which need only meet the lesser "may benefit" standard.

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AMA Code of Ethics

The Code of Medical Ethics of the American Medical Association has also begun to acknowledge the role of alternatives in healing. The original Hypocratic Oath, with its injunction to "Do no harm." has been replaced by a complex Code detailing the relationship between physician and patient and alternative practitioner. The most recent changes, during the early 1990's, were inspired by anti-trust lawsuits brought during the 1980's by chiropractors and others.

While "treatment which has no scientific basis" is condemned (Opinion 3.01), under Opinion 3.04, physicians are free to refer a patient "for therapeutic or diagnostic services to another physician, limited practitioner or any other provider of health care services permitted by law to furnish such services, whenever he or she believes that this may benefit the patient." Thus, unscientific "treatment" is distinguished from "health care services permitted by law" and "treatment" -- which means the use of standard medicine and surgery to "cure" disease -- is distinguished from other health care services which need only meet the lesser "may benefit" standard.

Thus, modalities such as Nutrition, can be seen to complement licensed medicine, but not be held to its strictures, nor limited in its practice to licensed physicians.

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Conclusion

Nutritionists do not do the things which State licensed medical doctors do, nor do they have medical equipment which requires a license, including hypodermic needles which clients must purchase lawfully for personal use. The equipment which Nutritionists' typically do have is not medical diagnostic equipment, and is equipment which no State licensed medical doctor would be allowed to have. Any such equipment must be legally purchased and privately used by clients on themselves to feed the body nutritional energies. These devices are no part of State licensed medicine.

The Nutritionist is very cautious, never taking on clients who have acute conditions requiring immediate medical intervention. The careful practitioner must send people to hospital emergency rooms for medical emergencies. The first concern must still be "Do no harm..."

What the Nutritionist does is to evaluate the nutritional status of the client, then, feed the client those dietary substances and bioenergies which will nourish the normal form and function of the body, to promote optimal well-being, and not to treat specific diseases. The licensed physician, on the other hand, prescribes (sometimes) dangerous drugs and invasive techniques to change the normal form and function of the body, to attack specific disease entities or suppress symptoms. Though the practices of these healing arts are different, for the good of the client, the Nutritionist and physician can cooperate, if the physician accepts the limits of his or her knowledge of nutrition, while the Nutritionist accepts the limits on his or her activities that the historic development of the Medical Practices Acts currently imposes.

The North Carolina Supreme Court concluded, nearly a century ago in State v Biggs, supra., at p.405: "Medicine is an experimental, not an exact science. All the law can do is to regulate and safeguard the use of powerful and dangerous remedies, like the knife and drugs, but it cannot forbid dispensing with them. When the Master, who was himself called the Good Physician, was told that other than his followers were casting out devils and curing diseases, he said, 'Forbid them not.'" (p.405).

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The above is submitted without prejudice and with full reservation of rights; UCC 1-207.

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