Regulations Not Needed - Remedies Currently Exist for Protecting Consumers

By C. Michael Piacentino, J.D., posted August 21, 2003

Thank you for the opportunity to address you in support of House Bill 188.

I am an attorney in private practice in Marion.  I have been a solo practitioner for over 30 years. I served as Assistant Law Director for the City of Marion for 9 years and I was a member of the Governor’s Select Committee on Tort Reform in 1988-89. My private practice has been entirely devoted to representing individuals who have been injured in some way, many of them harmed by licensed professionals.

I have been asked to address concerns about enforcement and remedies available to people who have experienced harm as a result of their encounters with unlicensed persons dispensing nutrition advice. There are numerous remedies under the current Ohio Revised Code and the common law of the State of Ohio.

You should understand first that the Attorney General of the State of Ohio can and will act on behalf of injured individuals.  The Consumer Sales Practice Act set forth in Section 1345 of the Ohio Revised Code permits the Attorney General to conduct research, make inquiries, and publish studies relating to consumer transactions.  A consumer transaction includes the type of relationship described in House Bill 188 between an unlicensed individual and a client.  Furthermore, the Attorney General’s office has full power to investigate complaints against providers of all types, including the subpoenaing of witnesses and the taking of testimony. The only professions exempted from the Attorney General’s authority are CPAs, Dentists, Veterinarians and Attorneys.

Should an investigation conclude that action is necessary, the Attorney General can file an action to declare that the activity violates the Consumer Sales Practice Act, may file an action to obtain temporary restraining orders, preliminary injunctions, or permanent injunctions, to restrain and prevent the act or practice complained of.

Further, in this action, the Attorney General may request that the court impose a civil penalty of not more than five thousand dollars for each day of violation of the orders.

In addition, the Attorney General may file a class action seeking similar injunctive relief.

In addition, the Attorney General may also ask the courts to appoint referees or receivers for sequestration of assets and to reimburse consumers found to be damaged.

In addition, in certain circumstances, the Attorney General may request that the court impose a civil penalty of up to $25,000.

The Consumer Sales Practice Act gives an injured person the option of pursuing remedies privately. An injured person may file a lawsuit and if a violation of the Consumer Sales Practice Act is found, the injured may rescind the transaction or in the alternative, may recover three times the amount of damages or $200, whichever is greater.

In addition, the consumer can seek declaratory judgment and/or injunctive relief individually.

In addition, the Common Law of the State of Ohio provides the individual with at least three causes of action for recovery:

• Suit based upon negligence
• Suit based upon contract
• Suit based upon fraud

All of these causes of action provide for awards of damages to the injured party.

Obviously, the statutes and the Common Law of Ohio provide numerous remedies that can be pursued in conjunction with the Attorney General or in individual lawsuits in the event of harm to the consumer. Therefore, House Bill 1888 does not require the addition of sections establishing remedies.

Perhaps the more pertinent issue is whether or not licensure protects the public.

My 30 years experience requires me to conclude that licensure does not offer the public appropriate protection.

The public record is replete with evidence that licensure does not assure safety. For example, according to the Centers for Disease Control, 228,000 people die each year as a result of hospital-related harms (hospitals are staffed with physicians, pharmacists, nurses, LPNs, dietitians, all of who are licensed).  This makes hospital-related harms the third leading cause of death in the United States (exceeded by only heart disease and cancer). 

We were warned about the dangers of licensure over 200 years ago. One of the signers of both the Declaration of Independence and the Constitution of the United States was Benjamin Rush, M.D., personal physician to General George Washington. Dr. Rush warned:

Unless we put medical freedom into the constitution, the time will come when medicine will organize into an undercover dictatorship to restrict the art of healing to one class of men and deny equal privileges to others; the Constitution of the Republic should make a special privilege for medical freedoms as well as religious freedoms.

We were also warned about the dangers of the current dietitian licensure law by one of your predecessors, State Representative Don E. Gilmore in a letter addressing dietitian licensure. Representative Gilmore stated:

In my opinion, the States attempting to affect such a law (licensure for dietitians) are only trying to corner the market for a certain segment of the professional community.

I suggest to you that Representative Gilmore has accurately, in this one sentence, hit the nail on the head.

Thank you for your time and attention in this matter.

C. Michael Piacentino, J.D., is an attorney in private practice in Marion, Ohio.