MLN Vol.19, No.4

Massage Law Newsletter

www.healingandlaw.com

Vol. 19, No. 4                                   ISSN 1073-5461                                     March 2001

THE CASE OF THE

 ARIZONA STATE SUNRISE ACT

VERSUS

THE ARIZONA COALITION FOR MASSAGE

THERAPISTS AND BODYWORKERS

Albert Schatz and Mary Brewster

Introduction.Part 1: The origin of AMTA's litigation and the settlement.

Part 2: Why state regulation may be illegal.

Part 3: Commercial speech and generic terms.

Part 4: Does state regulation violate the right to commercial speech?

Part 5:  AMTA's complaint.

Appendix

Massage is an art and anybody can do it.

Economic and social harm caused by state regulation.

References.

Abstract

This report provides information about the well-documented evidence that the Arizona Coalition of Massage Therapists and Bodyworkers needs to satisfy the requirements of the Arizona  Sunrise Statute. We will discuss this evidence by considering AMTA's 1989 litigation in Maryland, generic terms, and the right to commercial speech.

INTRODUCTION

The report is a follow up of Schatz's 1994 question2 as to whether state regulation of massage therapists is illegal for the same reasons that AMTA considered illegal the attempt of the Maryland state Board of Physical Therapy Examiners to regulate massage therapists in 1989.1

In 1989, AMTA claimed that certain massage terms were generic.1 We believe the same terms are generic today. AMTA claimed that the Maryland state Board of Physical Therapy Examiners's attempt to regulate massage therapists was illegal because it violated the right to free speech, provisions of the Antitrust Act, and other laws.1

We believe present-day regulation of massage therapists by state boards (of massage therapy, chiropractic, nursing, medicine, etc.) may be illegal because it violates the same laws that AMTA accused the Maryland state Board of Physical Therapy Examiners of violating in 1989.1

Arizona's Sunrise Statute § 32-3103

"A. Regulation shall not be imposed on any unregulated health profession except for the exclusive purpose of protecting the public interest. All proposed legislation to regulate a health profession for the first time shall be reviewed according to the following criteria. A health profession shall be regulated by the state only if:

"1. Unregulated practice can clearly harm or endanger the public health, safety or welfare and the potential for harm is easily recognizable and not remote or dependent on tenuous argument.

"2. The public needs and can reasonably be expected to benefit from the assurance of initial and continuing professional ability.

 "3. The public cannot be effectively protected by other means in a more cost beneficial manner."

 What the Coalition has to do

If the Coalition wants Arizona to regulate massage therapists, it has to provide well-documented evidence that the bill, which it promotes, is needed. The only legitimate evidence is the need to protect the public health, safety, and welfare.3

Therefore, if the Coalition promotes a bill to regulate massage therapists, it has to provide well-documented evidence that enough harm has actually occurred and has been sufficiently serious to justify the need for state regulation to protect the pubic from that harm. Submitting evidence of only the "potential for harm" will not meet the requirements of Arizona's Sunrise Act. Evidence of "the potential for harm" did not meet the requirements of Sunrise Acts in Minnesota and Georgia.

If the Coalition promotes a bill that restricts the use of generic terms such as "massage,' "massage therapy," "therapeutic massage," it has to provide well-documented evidence that the use of such generic terms by unregulated practitioners in Arizona has caused  harm which has actually occurred and is  sufficiently serious to justify the need to restrict the use of those generic terms.  Evidence of "the potential for harm" dose not meet the requirement of a relevant  U.S. Supreme Court decision (to be discussed).

PART 1: THE ORIGIN OF

AMTA'S LITIGATION, AND THE SETTLEMENT

In 1989, AMTA initiated legal action1 against the Maryland state Board of Physical Therapy Examiners et al  because the Board assumed it had a legal right to regulate massage therapists. AMTA claimed that the Board's action was illegal for reasons set forth in its complaint filed on December 8, 1989. These reasons included violation of the right to commercial speech and violation of antitrust laws. Part 6 of this report presents some sections of AMTA's complaint.1 

We believe AMTA's complaint provides evidence that state regulation of massage therapists may be illegal.

The litigation was AMTA's response to a problem that began "In 1983," [when] "the [Maryland]  Board of Physical Therapy Examiners sent a letter to a massage clinic ordering the clinic to cease and desist from offering massage therapy, claiming this constituted offering physical therapy services... A much more onerous blow fell in 1987-88 when the physical therapy board sent waves of cease and desist letters to about 60 massage therapists. They targeted them for using such terms as 'therapeutic massage' ... "and 'massage therapy.' ... In addition, the physical therapist board attempted to establish rules and regulations defining therapeutic  .massage ... and manipulations."4

How the case was settled

The case was settled on August 1, 1996 with an agreement in which "The Defendants ... acknowledged that the [Maryland] AMTA members are entitled to describe and advertise their services by using terms such as 'massage therapy' and 'therapeutic massage,' and the Defendants agree that they will take no action to challenge or restrict such descriptions or advertising by [Maryland] AMTA members."5

The basic problem has 

not been resolved

The problem is that, in some states, boards of massage therapy or other state boards are now regulating massage therapists in ways which are similar to the way the Maryland Board of Physical Therapy Examiners tried to regulate  massage therapists.

We believe state regulation of massage therapists, by the above-mentioned boards, may be illegal for the same  reasons that AMTA  considered it illegal for the Maryland Board of Physical Therapist Examiners to regulate them.

PART 2: WHY STATE REGULATION

MAY BE ILLEGAL

The following information explains why we believe AMTA's complaint provides evidence that state regulation of massage therapists may be illegal.

Massage is safe and therefore

does not need to be regulated to protect

the public from harm.

The only legitimate justification for state regulation of massage therapists is to protect the public safety, health, and welfare.3 But there is no well-documented evidence that massage therapists have caused enough serious harm13,14,15 to justify the alleged need for that protection. We therefore believe state regulation is unnecessary. We also believe it is illegal because it violates the right to commercial speech, provisions of the Sherman Antitrust Act, and other laws1 without benefiting the pubic.

There is no well-documented evidence that state regulation has protected the public from harm. 

There is no well-documented evidence that:

state regulation could provide that protection if it were needed.

There is no well-documented evidence that massage therapists have caused less harm and less serious harm in states which regulate them than in states which do not.

There is no well-documented evidence that:

state regulation has significantly reduced the incidence of sexual misconduct. 

Title protection acts are, in and of themselves, good evidence that massage is not harmful, and that state regulation is not needed to protect the public from harm.15

AMTA's litigation provided

evidence that massage is safe

During the entire period of the AMTA's litigation, which extended from 1989 to 1996, the Maryland Board of Physical Therapy Examiners never presented evidence that any massage therapist (who was or was not a member of AMTA) had actually harmed anybody. This litigation therefore provides more evidence that unregulated massage therapists, regardless of their training, do not harm people. State regulation is not necessary to protect the public from harm that has not occurred.

Training

There is no well-documented evidence that  massage therapists need any more training than the 250 hour training and 50 hour internship that Texas requires.

There is no well-documented evidence of a direct correlation between the number of hours of training that a massage therapist has and her hands-on competence.

There is no well-documented evidence of an   inverse relationship between the number of hours of training and the number of clients that massage therapists have seriously harmed, because there are no reliable reports of such harm.

Competence

There is no way to objectively measure the hands-on competence of massage therapists.

There is no well-documented evidence that state regulation is needed to assure that massage therapists are sufficiently competent in their hands-on work.

There is no well-documented evidence that state regulation differentiates massage therapists who are competent in their hands-on work from those who are not.

There is no well-documented evidence that massage therapists are more competent in their hands-on work in states which regulate them than in states which do not.

The national certification exam

Some state regulatory requirements include a passing grade on the national certification exam.

The National Certification Board for Therapeutic Massage and Bodywork has not defined the "skills, " "abilities," and "competence" that its exam alleges it measures.

There is no well-documented evidence that the national certification exam does indeed measure the "skills, " "abilities," and "competence" that it alleges it measures. 

There is no well-documented evidence that the national certification exam differentiates massage therapists who are competent in their hands-on work from those who are not.

Prostitution

There is no well-documented evidence that:

state regulation has significantly reduced prostitution by making it difficult for prostitutes  to masquerade as massage therapists.

On the contrary, there is evidence that state regulation has not reduced the incidence of prostitution. Hawaii's 1992 Sunset Evaluation Update tells us: "The Honolulu Police Department reported that, instead of using massage as a front, prostitutes had shifted their activity to other fronts, such as escort and dating services."16 

PART 3: COMMERCIAL SPEECH

AND GENERIC TERMS

We will consider commercial speech and generic terms because these are important in AMTA's complaint. The July/August, 1996, issue of the AMTA newsletter Hands On reported the settlement of the litigation. "Two more key elements" it said, "proved critical. AMTA-MD sued the State of Maryland and the Maryland physical therapist board in federal court in 1989, charging that the physical therapy board's actions infringed on massage therapists' rights to commercial free speech and violated antitrust laws."4

The term "commercial speech" applies to terms, titles, and phraseology commonly used in business. AMTA's case was based, among other things, on violation of the right to commercial speech and violation of antitrust laws.1

"Generic" means "relating to or  characteristic of a whole group or class," and "being or having a non-proprietary name." Non-proprietary means that no one can have the exclusive right, ownership, or use of a name or title. Conversely, proprietary refers to "the legal right, ownership (possession) or the exclusive" use of a name or title."

The term "massage" has been in common use for centuries, and is not associated with any one unique, kind of service that the public recognizes as such.

State regulation, commercial

speech, and generic terms

State regulation of massage therapists (by both practice acts and title protection acts) restricts the right to commercial speech of those practitioners who do not comply with the regulatory requirements. The commercial speech of massage therapists includes the use of generic terms, such as "massage,"17 "massage therapy,"1 and "therapeutic massage."1

However, the restriction of the right to commercial speech is not needed to protect the public from harm because unregulated massage therapists, regardless of their training, have not caused sufficient, serious harm to justify the alleged need for that protection.13,14,15 Therefore, the restricted use of these and other generic terms may violate massage therapists' rights to commercial speech, and violate antitrust laws and other laws enumerated in AMTA's complaint.1

"Massage" is a generic term

in British Columbia

The fact that "massage" is a generic term, played an important role in litigation in the Supreme Court of British Columbia (BC).17 In  his decision, the Judge, Mr. Justice Braidwood, concluded that "'massage' is a generic term." If "massage" is a generic term in Canada, we believe it is also a generic term in the United States.

Lincoln Lau's report18 about this decision provides the following information. "The BC Telephone Company wanted to introduce a new listing category 'massage services' as a generic term in the Yellow Pages to allow manual therapies and massage practitioners that were not Registered Massage Therapists to list and advertise in the Yellow Pages. The Telephone Company took the position that the word "massage" is a generic term and that not all people who perform an act of massaging should be classified as providing massage therapy."

The College of Massage Therapists of BC took the position that only Registered Massage Therapists should be permitted to use the word "massage" in advertising in the Yellow Pages. Judge Braidwood ruled against the College because he considered "massage" a generic term.  

AMTA's  Scope of Practice is a

"generic statement" about massage

and massage therapy

In 1998, AMTA's Special Committee on Code of Conduct and Scope of Practice published its final draft of AMTA's Scope of Practice,19 which it defined in terms of "massage or massage therapy." The Committee  defined "massage or massage therapy as follows:

"Massage or massage therapy is any (italics ours) skilled manipulation of soft tissue, connective tissue, and/or body energy fields with the intention of maintaining or improving health by affecting change in relaxation, circulation, nerve responses, or patterns of energy flow."19

The Committee took what it called "a broad and generic approach," and "created a generic statement." The "generic approach" and "generic statement" refer to "massage or massage therapy" because "massage or massage therapy" is what the Scope of Practice defines.19 The Committee reported that its "generic statement .... has been reviewed ... by the association and insurance company legal counsel."

Nine years earlier, in 1989, (in AMTA's action against the Maryland Board of Physical Therapy Examiners et al), AMTA's attorneys took the position that "The use of the ... terms 'massage therapy' or "therapeutic massage' ... is generic."1

A few months after AMTA published its Scope of Practice,19 AMTA announced that its "Scope of Practice document" is "an internal document" that is "not to be used for legislative purposes. AMTA continues to encourage coalitions to develop a scope of practice that fits each state."20 

We do not understand why AMTA's "generic statement" of "massage or massage therapy" should not be used for legislative purposes. If this "generic statement" defines the "massage or massage therapy" that AMTA members do, it defines what they do in states which do and do not regulate them. If so, the "generic statement" has important implications with respect to state regulation precisely because it is generic. Did  AMTA's Government Relations Committee realize that AMTA's "generic statement" (in AMTA's Scope of Practice) might question the illegality of state regulation that restricted generic terms.?

In its litigation, AMTA took the position  that  the Maryland Board of Physical Therapy Examiners et al, could not legally restrict the use of generic terms and titles. Does it not follow that Practice Acts and Title Protection Acts, which regulate massage therapists, also  cannot legally restrict the use of the generic terms and titles unless people have actually been seriously harmed by massage therapists who have used the terms and titles before the regulatory laws were enacted?

PART 4: DOES STATE

REGULATION VIOLATE THE RIGHT

TO COMMERCIAL SPEECH

AMTA's complaint alleged that its members' right to commercial speech had been violated. Let us therefore see the circumstances which permit the state to  restrict the right to commercial speech. Bear in mind that unregulated massage therapists have not caused  sufficient harm and sufficiently serious harm to justify the need for state to regulate them to protect the public from that harm.

The following U.S. Supreme Court decision differentiated actual harm from the potential for harm with respect to commercial speech.

This decision (in Ibanez v. Florida Dept. of Business and Professional Regulation, Board of Accounting. No. 93-539. June 13, 1994) "created 'established law' for the protection of private certification programs and titles against undue state interference."21 Other decisions in the Ibanez decision are also relevant to the issue with which we are concerned In this report.

 We believe this Ibanez decision also applies to the use of the generic term "massage" and generic titles by those who do massage. This raises the important question, "Can a state's title protection act  or practice act restrict the use of generic titles and generic terms if the state has no well-documented evidence that massage therapists (who were using generic titles and generic terms before the law was enacted) have not harmed anybody?" 

The Ibanez decision tells us: "Truthful advertising related to lawful activities is entitled to the protections of the First Amendment... Misleading advertising may be prohibited."

"Only false, deceptive, or misleading commercial speech may be banned." "Commercial speech that is not false, deceptive, or misleading can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest."

"The States's burden is not slight; the free flow of commercial information is valuable enough to justify imposing on WOULD-BE REGULATORS the costs of DISTINGUISHING the truthful from the false, the helpful from the misleading, and THE HARMLESS FROM THE HARMFUL."

"We cannot allow rote invocation of the words ''POTENTIALLY misleading' to supplant the Board's burden to 'demonstrate that the HARMS it recites are REAL and that its restriction will in fact alleviate them to a material degree." "MERE SPECULATION OR CONJECTURE' WILL NOT SUFFICE."

PART 5: AMTA'S COMPLAINT

Having presented what we consider sufficient background information about AMTA's litigation, we now present the following parts of AMTA's complaint.1

COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF1

The Maryland Chapter of the American Massage Therapy Association, Inc., a body corporate of the State of Delaware, by Harvey A. Epstein, Jeffrey N. Pritzker, and Margolis, Pritzker and Epstein, P.A., sues the Defendants, Stated of Maryland, Adele Wilzack, Secretary of the Department of Health and Mental Hygiene of the State of Maryland, and Charles M. Dilla, P.T., Chairman of the Board of Physical Therapy Examiners for the State of Maryland, Marilyn G. Booher, P.T., Carol A. Hamilton, P.T., William D. Hodges, P.T. and Judith A. Schank, P.T., Members of the Board of Physical Therapy Examiners and each of them:

JURISDICTION

1. This action arises under the Constitution of the United States, and the Amendments to the Constitution of the United States, all as more fully set forth herein, and including but not limited to Amendments I, V, and XIV, and the Sherman Act, Sections 1 and 2, and 15 U.S.C. Sections 1-14.

2. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. Sections 1331 and 1343.  This action is one within the meaning of 42 U.S.C. Section 1983 for injunctive relief.

PARTIES

3. Plaintiff, The Maryland Chapter of the American Massage Therapy Association, Inc., a body corporate of the State of Delaware,  ("Association") is a Chapter of a nonprofit association incorporated under the laws of the State of Delaware.  The Association maintains offices in Chevy Chase, State of Maryland.  The Association's membership consists of approximately 250 members in and about the State of Maryland engaged in the practice of massage therapy. 

4. Defendant, State of Maryland, requires no further explanatory identification.

5. Defendant Adele Wilzack is the Secretary of the Department of Health and Mental Hygiene, and is charged with the executive responsibility for the enforcement of statutory provisions of the Annotated Code of Maryland, as well as stated regulations and furtherance thereof, which laws and regulations, and the enforcement thereof give rise to this cause of action.

6. Defendant, Charles M. Dilla is the Chairman of the Board of Physical Therapy Examiners, and Defendants Marilyn G. Booher, P.T., Carol A. Hamilton, P.T., William D. Hodges, P.T. and Judith A. Schank, P.T. are members of the aforementioned Board, and are charged with the responsibility for the enforcement of statutory provisions of the Annotated Code of Maryland, as well as state regulations in furtherance thereof, which laws and regulations, and the enforcement thereof give rise to this cause of action.

*          *         *

A copy of  Title 13 "Physical Therapist", Health Occupations Article, Annotated Code of Maryland (1986 Repl. Vol.), is incorporated by reference herein and attached hereto as "Exhibit No. 1".

8. The Plaintiff is an Association of individuals residing within the State of Maryland, who earn their livelihood, in whole, or in part, by means of rendering massage services to individuals in and about the State of Maryland.

9. The individual practitioners rendering massage services to individuals as aforementioned customarily refer to those services as "massage therapy", or "therapeutic massage."   The use of the aforementioned terms, particularly "therapy" and "therapeutic", is  generic, and in no way implies medical treatment of any nature whatsoever, the modern and accepted definition of the term "therapy" being not limited specifically to the treatment or cure of disease.  There is no likelihood of any confusion in the minds of the public between therapeutic massage, "massage therapist" or "massage therapy and "licensed physical therapists" or "physical therapy".

10. The pertinent language of the stature set forth above has been construed by the Defendants to prohibit not only the advertisement, or commercial or other publication, of rendering massage therapy or therapeutic massage, by members of the Plaintiff, but has been further, construed by the Defendants to prohibit the rendering of "therapeutic massage" or massage therapy by an individual not a licensed physical therapist, within the State of Maryland.

11. The Defendants and each of them, have in the past attempted to, and are presently attempting to, prohibit members of the Plaintiff from engaging in the rendering of massage therapy and/or therapeutic massage, and from advertising massage therapy and/or therapeutic massage, as customarily has occurred in this State, and in other States in the United States for many years in the past and continuing to the present time.

12. That in so doing, the Defendants and each of them have attempted to intimidate, coerce, and otherwise cause individual members of the Plaintiff to cease and desist from their normal and customary advertising practices, and the normal and customary rendering of services as have been rendered by members of the Plaintiff for many years, all without reasonable cause and/or justification.

13. The actions of the Defendants and each of them, in concert and otherwise, are calculated to, and in fact do unreasonably restrain competition in the field of massage therapy in the State of Maryland, denying the citizens of the State of Maryland access to massage therapy services other than those physical therapy services offered by licensed Physical Therapists.

14. No clear legal necessity or objective exists for the aforementioned actions of the Defendants and each of them; conversely the resultant effect of those actions on the individual Defendants could be to enrich them and provide additional financial opportunities and rewards for the rendering of physical therapy services including therapeutic massage, all at the expense of members of the Plaintiff whose rights to render those services are denied and usurped without just cause or reason.

15. Unless this Court enjoins the unlawful and unconstitutional conduct of the Defendants, and each of them, Plaintiff and its members will continue to be injured in their business and property in ways difficult or impossible to quantify in money and difficult or impossible to remedy.

16. Plaintiff and its members have no adequate remedy at law.

COUNT  I

17. Plaintiff realleges paragraphs 1-16 and incorporates them herein by reference.

18. The aforementioned actions of the Defendants and each of them constitute violations  of the XIVth Amendment of the United States Constitution.

COUNT  II

19. Plaintiff realleges paragraphs 1-18 and incorporates them herein by reference.

20. That the actions of the Defendants and each of them, deny the members of the Plaintiff Association the "Due Process" to which they are entitled by Amendment V, United States Constitution.

COUNT III

21. Plaintiff realleges paragraphs 1-20 and incorporates them herein by reference.

22. That the actions of the Defendants and each of them, suppress the dissemination of truthful information about lawful activities of the members of the Plaintiff Association in violation of the rights of "Free Speech" guaranteed by Amendment I of the United States Constitution.

COUNT IV

23. Plaintiff realleges paragraphs 1-22 and incorporates them herein by reference.

24. That the actions of the Defendants and each of them, violate the Antitrust Laws of the United States, specifically Sections 1 and 2 of the Sherman Act and 15 U.S.C., Sections 1-14.

WHEREFORE, Plaintiff respectfully requests the following relief:

(a) That this Court issue such Order or Orders as are necessary to permanently enjoin the Defendants from further violations of the I, V and XIV Amendments to the Constitution of the United States of America and of Sections 1 and 2 of the Sherman Act.

(b) Declare as unconstitutional and unenforceable "the Maryland Physical Therapy Act", and particularly Sections 13-301(a), 13-401 and 13-407, and other sections cited herein, Health Occupations Article, Annotated Code of Maryland, (1986 Repl. Vol.)

(c) Enjoin the Defendants, and each of them, from construing, enforcing or attempting to enforce in an unconstitutional manner or in a manner violative of the antitrust laws, any of the provisions of "the Maryland Physical Therapy Act", and particularly Sections 13-301(a), 13-401 and 13-407, and other sections cited herein, Health Occupations Article, Annotated Code of Maryland, (1986 Repl. Vol.)

(d) That the Court Declare Violative of the Antitrust Laws of the United States the aforementioned actions of the Defendants, as well as those sections of the "Maryland Physical Therapy Practice Act" that prohibit or have been construed to prohibit individuals not licensed as physical therapists to provide, or advertise, massage therapy or therapeutic massage.

(e) That the Plaintiff be awarded damages.

(f) That the Plaintiff be granted reasonable counsel fees and costs in connection with the bringing of this action.

(g) For such other and further relief as justice and the nature of this case may require.

Harvey A. Epstein

Jeffrey N. Pritzker

Margolis, Pritzker & Epstein, P.A.

405 East Joppa Road, Suite 100,

Towson, Maryland 21204

(301) 823-2222

Attorneys for Plaintiff

APPENDIX

State regulation is allegegedly needed to protect the public from harm that allegedly occurs by massage therapist who are allegedly inadequately trained.  We have already commented on harm, training, and competence.  All state regulatory standards require  certain amounts of training.  We are therefore presenting information, in this Appendix, that we believe is relevant in evaluating the alleged need for state regulatory standards.

We have also pointed out, in this and many other reports in the Massage Law Newsletter on our web site <www.healingandlaw.com> that massage therapists, regardless of their training, have not caused enough well-documented serious harm to justify the alleged need  for state regulation to protect the public from that harm. However, there is another kind of harm, that is associated with state regulation, which has received relatively little attention. We are therefore commenting,  in this Appendix, on that other kind of harm. 

MASSAGE IS AN ART, AND

ANYBODY CAN DO IT

"Every massage is comparable to an original, creative work of art. This is why you can no more certify a massage professional than you can certify an artist" for competence in hands-on work.7

 "The core issue that most therapists do not want to acknowledge is that massage as an art can be, and is, practiced by anyone without training."8

"There is no standard for what constitutes a 'good' massage.... Each client will have his own opinion on the subject, depending on his own tastes and physical condition.... Massage is an  art. There is no one right way of doing it." It is a "misconception" to assume "that there is one definition of what constitutes a 'good' massage and a 'bad' massage.... Students and new graduates often ... think the way they were taught to massage in school is the 'right' way to do massage, and that massaging any other way is 'wrong'.... What you learn in school is a good basis from which to develop your own style."9

"Massage, like music, is what Aldus Huxley called "a psycho-physical skill."  '... did Bach know how his muscles worked? No. But he played the organ very well and was a magnificent teacher. If proficiency in any psychophysical skill depended on correct knowledge of physiology, there would have been no good singers, dancers, pianists, runners and so forth until the middle of the twentieth century.'"10

 An important book

"Massage for Dummies"

 This book tells us, "A fancy, gold-embossed massage license hanging on the wall in a frame is no guarantee that you're going to like a given massage therapists's technique.

"On the other hand, someone with no certificate at all may be one of the most highly skilled massage therapists you'll ever meet. When it comes to choosing a pro, go with your heart and your intuition"11 

"Just follow the instructions, and in no time you'll be reproducing the very same techniques you see being performed by the highly trained models in the photographs. No problem. That's right.

"You can become one of these great people about whom everyone else exclaims, 'What great hands you've got.' Just remember to focus  on your 'giver's attitude' as much as your manual skills, and you'll do just fine."

 Another important book

"The Complete Idiot's Guide to Massage"

 This book provides "quick and easy guidance on giving a massage" and "idiot-proof steps for all types of massage, from aroma therapy to Swedish Massage.

" The book also tells us, "Sometimes the very best massage therapist for you won't have any kind of formal certification at all."12

ECONOMIC AND

 SOCIAL HARM CAUSED BY

 STATE REGULATION

Although massage does not harm people, state regulation does harm people. This is the economic harm that in inflicted on massage therapists, some of whom have been doing massage for several years. If these  individuals are unable to pay massage schools for additional training that state regulation requires (and pay to take the national certification examination if that is also required), they are prohibited from continuing to make a living by doing massage.6 If they are single parents, this may result in serious financial hardship with resultant adverse social effects involving their children This aspect of state regulation has not been adequately researched.

But we do know that there is no well-documented evidence that the additional training, which such massage therapists are required to take, in order to comply with state regulatory requirements, increases their hands-on competence.

Also, there is no well-documented evidence that the additional training and a passing grade on the national certification exam are needed to protect the public from harm. Every massage is comparable to an original, creative work of art.

Those who have experienced economic and social harm, as a result of state regulation, should be compensated.

We welcome comments

The authors of this report and their other reports about state regulation, national certification, etc. are not attorneys. Their opinions and conclusions are therefore not to be taken as legal advice. They invite comments about their reports, iwith  permission to publisih them the Massage Law Newsletter.

References

1.  The American Massage Therapy Association, Inc... Plaintiff  v. State of  Maryland, et al. Defendants. Civil Action. Case No. 89-CV-3367. Complaint filed December 8, 1989. United States District Court for the District of Maryland, Baltimore, MD.

2. Schatz, A. Letter to the Editor, Massage & Bodywork. Vol. 9. page 47. Summer. 1994.

3. Schatz, A. Should the Tucson. Arizona, Committee of Massage Examiners be abolished? Massage Law Newsletter. 4(1):1-8. 1998.

4. Maryland miracle bill passes after ten years. Hands On. (AMTA newsletter). 12(4):1 and 6-7. July/August 1996. 

5. Thomas, J. (Editor). Maryland litigation ends. (page 1) and Text of Maryland settlement (pages 2-4) Touch Therapy Times. September. 1996.

6. Schatz, A>, and Brewster, M.  State massage laws = $$$$ for massage schools. Massage Law Newsletter. 19(1):1-2. 2001.

7. Carlson, K., Barbara, R. A., and Schatz, A. Is state regulation of massage illegal?  Massage & Bodywork Quarterly. pages 42-52. Fall. 1993.

8, Sohnen-Moe, C. A peek at the future evolution of practices. Massage Journal.  38(5):56-66. Millennium issue. 2000.

9. Greene, L. Save Your Hands! Injury Prevention for Massage Therapists. Infinity Press. Seattle, WA. 1995.

10.  Inkeles, G., and Todris, M. The Art of Sensual Massage. SImon and Schuster. NY. 1972.

11,  Capellini, S., and Van Welden, M. Massage for Dummies.  IDG Books Worldwide, Inc. NY. 1999.

12. Budilovsky, J., and  Adamson, E. The Complete Idiot's Guide to Massage.     Alpha Books. New York. 1998.

13. Schatz, A. Massage should be deregulated because it does not cause harm. Massage Law Newsletter. 5(2):1-18.1998.

14. Schatz, A. Follow the money trail to find out why scare tactics tell us secular massage is harmful. Journal of Spiritual Bodywork. Special Issue, No. 4. pages 1-14. 1997.

15: Schatz, A., and Brewster, M. There is no justification for state regulation of massage therapists. Part 1: Evidence that massage is safe versus evidence that it is harmful. Massage Law Newsletter. 17(2):1-9. 2001.

16. Schatz, A. Prostitution and Massage. Journal of Spiritual Bodywork. Special Issue, No. 2. pages 1-10. 1997.

17. Supreme Court of British Columbia (Canada). No. A960740. in the Vancouver Registry. February 28, 1996. College of Massage Therapists of British Columbia, Petitioner. British Columbia Telephone Company, Respondent.

18. Lau. L. 1996. (Editor)  Lawsuit over ownership of massage. Coalition Bulletin. 1(1):4. Fall. 1997. Published by the British Columbia Coalition of Allied Bodywork Practitioners. #303 - 2164 Wall Street, Vancouver, BC. Canada V5L iB5.

19. Answers to questions about Scope of Practice. Hands On (AMTA newsletter). 14(3): 6. 1998.

20. AMTA Scope of Practice for internal use only. Hands On (AMTA newsletter). 14(5):2. 1998.

21. Thomas, J. (Editor) Supreme Court strengthens right to advertise private certification. Touch Therapy Times. page 1. November. 1994.

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