MLN Vol.6.No.2

Massage Law Newsletter

Vol. 6, No. 2                                      ISSN 1073-5461                                      January 1999

MINNESOTA DOES NOT NEED TO REGULATE MASSAGE BECAUSE REGULATION  IS NOT NEEDED "FOR THE SAFETY AND

WELL-BEING OF THE CITIZENS OF THE STATE"

Albert Schatz, Ph.D.

Experience should teach us to be most on our guard to protect liberty when the ... purposes are beneficial. Men born of freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers lurk in insidious encroachment by men of zeal, well meaning but without understanding. - U.S. Supreme Court Justice Louis Brandeis 

The passion to regulate the lives of others is deep-seated in many individuals. When this is based on political expedience, it is bad, and when it is inspired by an idealism which wishes to inflict benefits on others, it can become dangerous. - Sir Arthur Amies      

   What Minnesota Statute 214.001,

subd. 2. tells us

"The legislature declares that no regulation shall be imposed upon any occupation unless required for the safety and well being of the citizens of the state."

Obligations

 and responsibilities

In this report, regulation refers to regulation of massage therapists.

Those who promote regulation have an obligation to provide well documented evidence that regulation is needed "for the safety and well being of the citizens" of Minnesota.

Those who oppose regulation have a responsibility to insist that proponents of regulation provide that well-documented evidence. 

If the proponents don't provide that well-documented evidence, there's no need for regulation.

Is regulation illegal?

Without well-documented evidence that regulation of massage therapists is needed "for the safety and well being of the citizens of the state" - regulation may violate Constitutional law and U.S. Supreme Court decisions that:

1. Protect freedom of speech and freedom of the press

2. Prohibit arbitrary governmental interference in lawful business, discrimination; and restraint of trade, monopolies, and unfair labor practices.

Regulation  may also violate provisions of the right to work in the United Nations' International Bill of Human Rights.

Why regulation is controversial

The January 6 - 19, 1999 of the Villager (weekly newspaper), published in St. Paul, MN, includes Catherine Condon's report Show of hands is far from unanimous on bill to regulate massage therapists.

In this article, none of those (who support regulation) presented well-documented evidence that regulation is needed to assure "the safety and well-being of the citizens" of Minnesota.

I am therefore requesting some individuals, whose comments are reported in the Villager, to provide well-documented information which justifies their support for regulation. I am also requesting their permission to publish their replies in the Massage Law Newsletter.

I have been doing research on state regulation since 1987.  My research - reported on website <http://www.tiac.net/users/maryella/> - presents well-documented information that justifies my allegations in this report.

TO SHEILA SWEENEY

You are concerned about consumers being harmed by unregulated massage therapists. Please tell me how many people have to be harmed in Minnesota, and how serious do their injuries have to be in order to justify the alleged need to regulate massage therapists to protect the public from that harm? Also, please explain why you assume that massage therapists would harm people in Minnesota when they don't harm people anywhere else?

When government agencies have done their own research, they have found no harm and have not regulated massage therapists

GEORGIA DOES NOT REGULATE MASSAGE THERAPISTS BECAUSE THEY HAVEN'T HARMED ANYBODY. When the Georgia Chapter of the American Massage Therapy Association® promoted licensure in that state, it submitted evidence of harm to justify the alleged need for regulation.

A Georgia Senate Committee rejected the undocumented evidence of harm, that the Georgia AMTA Chapter submitted. Then the Committee did its own research, and concluded:

1. "There is no documented danger of actual harm to the public." (Note that this refers to actual harm, not potential harm.)

2. "The potential for harm to the public appears to be remote and would not be alleviated by licensing." (Note that this refers to potential harm.)

THE CANADIAN PROVINCE OF QUEBEC DOES NOT REGULATE MASSAGE THERAPISTS BECAUSE THEY HAVEN'T HARMED ANYBODY. The Office of Professions, a government agency in Quebec conducted a comprehensive two-year research project (1990-1991) and did not find a single case of harm despite the wide range of training of massage practitioners in that province

More people are struck by lightning than are injured by massage therapists. In Georgia and the surrounding states, there was one report of possible harm in 19,240,000 massages. Does this amount of possible harm justify the need to regulate massage therapists to protect the public from harm?

If you have information about massage therapists who have actually harmed people in Minnesota, would you please tell me:

1. How many massage therapists have actually harmed people?

2. What training and experience did each of those massage therapists have?

3. How many people have actually been harmed by those massage therapists? 

4. What was the nature of their injuries?

5. How serious were their injuries?

If you don't have this information, why are you concerned about "potential harm to consumers"?

Potential harm

Why are you concerned about "potential harm to consumers," instead of actual harm, which is harm that has actually occurred? Potential harm is harm that may or may not occur. `If harm has not occurred, regulation is obviously not needed "for the safety and well being of the citizens of" Minnesota.

For many years, many massage therapists with a wide variety of training, have massaged many people with many contraindications which are potentially harmful. But there's no well-documented evidence of sufficient harm to justify regulating massage therapists to protect the public from that harm.

1. Epidemiology reports morbidity data as well-documented actual harm, not potential harm.

2. Professional liability insurance has  premiums based on risk which is determined by the amount and seriousness of well-documented actual harm, not potential harm..

3. Personal injury claims have to be based on well-documented actual harm, not potential harm, if they are to be taken seriously.

Many people are injured because:

The air we breathe is potentially harmful.

The water we drink is potentially harmful.

The food we eat is potentially harmful.

Crossing a busy city street is potentially harmful.

Walking up and down stairs is potentially harmful.

Getting in and out of the bathtub is potentially harmful.

But few, if any, people with contraindications, which are potentially harmful, are injured by massage.

TO SISTER ROSALIND GEFRE

You refer to "good work" by massage therapists.

1. How do you define "good work"?

2. How do you objectively measure "good work"?

If you cannot define and objectively measure "good work," how do you distinguish "good work" from work that is not good?

What well-documented evidence do you have that:

1.  Massage therapists do better work in states which regulate massage than in states which do not?

2.  Massage therapists with your 650-hour training do better work than massage therapists with a 500-hour training? 

3. Massage therapists who pass the National Certification Examination do better work than those who do not pass that written exam?

4. The state is more qualified, than a massage therapist's clients are, to decide whether that massage therapist does "good work"? 

You refer to "loads of doctors writing prescriptions for massage."

1. How may doctors have prescribed massage in Minnesota in 1997 or 1998?

2. How many people have been massaged as a result of those doctor's prescriptions?

3. How many of those massage therapists have harmed anybody?

If massage therapists have harmed anybody, please provide me with the information about them that I have requested from Sheila Sweeney, who is concerned about potential harm.

TO "PROPONENTS" WHO "ARGUE THAT"  REGULATION "WOULD GIVE MASSAGE THERAPY MORE CREDIBILITY"

1. How do you define "credibility," and how do you objectively  measure it?

2. What well-documented evidence do you have that massage therapists have more "credibility" in states which regulate massage than in states which do not?

If you don't have this information, how do you know that regulation "would give massage therapy more credibility"?

PROSTITUTION

Although the article in the Villager did not comment on the alleged need for regulation to control prostitution, this issue requires clarification.

Prostitution is often used by special interest groups to persuade state legislators and city officials to regulate massage. Unfortunately, those legislators and city officials don't require the special interest groups to provide well-documented evidence that regulation, on the state and local levels, has significantly reduced prostitution.

Regulating massage

does not reduce prostitution

My research has revealed there is no well-documented evidence that state regulation of massage therapists and local ordinances have significantly reduced prostitution anywhere.

Laws that specifically prohibit prostitution have not been effective. Many prostitutes, who are repeatedly arrested, continue to offer their services.

Laws - which specifically prohibit prostitution and apply to ALL WOMEN - are ineffective. It is therefore obvious that state regulation and local ordinances  which regulate massage therapists - who constitute only  A SMALL PERCENT OF ALL WOMEN  - cannot significantly  reduce prostitution.

When massage therapists are regulated,  prostitutes (who might masquerade as massage therapists) offer dating and escort services instead.

There is no well-documented evidence that massage therapists have a more wholesome public image in states and communities which regulate massage.

Finally, there's no well-documented evidence which tells us the extent to which state regulation and local ordinances prevent:

1. male clients from making sexual advances to legitimate massage therapists.

2. credentialed  women massage therapists from engaging in prostitution.

ADVICE FOR OPPONENTS

Opponents of regulation, on state and local levels, should demand that proponents of regulation provide well-documented evidence to justify each of the alleged needs for and benefits of regulation of massage therapists.

Opponents should also urge legislators and city officials to demand that well-documented evidence.

There is no subjugation so perfect as that which keeps the appearance of freedom, for in that way one captures volition itself. - Jean-Jacques Rousseau

It is sufficient that a citizen enjoy his freedom. He isn't required to justify it. History does that for him. - Judge James C. Hill

Where all men think alike, no man thinks very much. - Walter Lippmann

The fact that an opinion has been widely held is no evidence that it is not entirely absurd; indeed, in view of the silliness of the majority of mankind, a widespread belief is more likely to be foolish than sensible. - Bertrand Russell

Liberty is always dangerous, but it is the safest thing we have. - Henry Emerson Fosdick

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