The author is not an attorney, and this report is not legal advice. It presents the author's opinions based on common sense.
The following U.S. Supreme Court decision applies to the use of the term massage in commercial speech.
This decision tells us that the term massage may not be restricted merely because massage is alleged to be potentially harmful.
The harm must be "real." It must have actually occurred.
If the term massage may be legitimately used in commercial speech because there is only potential harm, how can the practice of massage be prohibited if it is only potentially harmful but does not cause any real harm?
These considerations explain why harm is the core issue in the alleged need for and in the legality of regulating massage therapists.
THE U.S. SUPREME COURT DECISION
U.S. Supreme Court. Ibanez v. Florida Dept. of Bus. & Prof. Reg. 1994 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 harm-ful."
"If the 'protections afforded commercial speech are to retain their force' ... 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."
These legal opinions may well apply to the use of the term massage in commercial speech, and that this term may not be restricted merely because massage is alleged to be potentially harmful. The harm must be "real." It must actually have occurred.
Furthermore, if the term massage may be legitimately used in commercial speech because there is only potential harm, how can the practice of massage be prohibited if it is only potentially harmful but does not actually cause any real harm?
WHAT IS A GENERIC TERM?
"Generic" means "relating to or characteristic of a whole group or class," and "being or having a nonproprietary name." Nonproprietary 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.
There is no well-documented evidence that the unrestricted use of the generic term massage by unregulated practitioners has adversely affected the public health, welfare, safety, morals, and/or order in ways that justifies restricting the use of that term.
Therefore, on what grounds can Senate Bill 1220 justifiably prohibit people (who are not regulated) from using the generic term massage to describe, in advertising and in other ways, the massage work they do?
THE AMERICAN MASSAGE THERAPY ASSOCIATION® CONSIDERS MASSAGE
A GENERIC TERM
The AMTA Committee which defined the Scope of Practice, of its members, took what it called "a broad and generic approach," and "created a generic statement." This generic approach and statement refer to "massage or massage therapy" because "massage or massage therapy" are what the Scope of Practice defines. (Hands On. AMTA newsletter. Vol. 14. Numbers. 3 and 5, May/June and Sept/Oct. 1998).
If massage is a generic term for massage therapists who are members of AMTA, why isn't it also be a generic term for massage therapists who are not members of AMTA?
If the term massage is a generic term, why may it not be raised as an issue in determining the legality of state regulation of massage therapists?
MASSAGE IS A GENERIC
TERM IN CANADA
Massage, as a generic term, played an important role in litigation in the Supreme Court of British Columbia. This report is in the Fall, 1997, newsletter (Vol. 1, No. 1) published by the British Columbia Coalition of Allied Bodywork Practitioners. #303 - 2164 Wall Street, Vancouver, BC. Canada V5L iB5.
The BC Telephone Company wanted to introduce a new listing category "massage services" 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 objected that "only persons who are allowed under legislative authority to be engaged in providing massage services are those duly registered with the college, and no others."
The Judge, Mr. Justice Braidwood, found "that it is not everyone who provides the service of rubbing another person's body who is properly designated as a massage therapist and that, accordingly, there are two categories and they are properly separated as proposed, namely one being 'massage therapists registered' and the other being 'massage service' ... Accordingly, the application for a permanent injunction is refused.'"
The judge also concluded that people who provide "relaxation or comfort massage" need little if any instruction.
He considered that four hours or less training might well be adequate for that purpose.