I have reviewed your website with the Complaint Committee. Please find attached a document containing pages from your website with areas of concern noted. Given our discussion, I believe our comments should make sense, however, should you disagree, I am happy to discuss. Please feel free to contact me with any questions you may have. Should you agree with our comments, we would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided. Again, please contact me with any questions, *232 and please update me as changes are made.
Under North Carolina General Statute § 90–365, a license is required to engage in the practice of dietetics/nutrition. Upon initial review of your website it was discovered that you were advertising “diabetes support packages” and charging a fee for these services. When we spoke on January 18, 20123 you indicated that you would take down the support packages page and make the disclaimer on your website more prominent. Shortly thereafter, although you did not take down the page, you did delete the packages and you did make your disclaimer more prominent.
Since our last correspondence, it appears that you have remained in substantial compliance with the requirements of Article 25, Chapter 90 of the North Carolina General Statutes. Therefore, effective April 9, 2012, the Board is closing this complaint. As with all complaints, the Board reserves the right to continue to monitor this situation.
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of *235 the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged.
We have recognized that, to demonstrate injury in fact, it is sufficient to *236 show that one's First Amendment activities have been chilled. Subjective or speculative accounts of such a chilling effect, however, are not sufficient. Any chilling effect must be objectively reasonable. Nevertheless, a claimant need not show [he] ceased those activities altogether to demonstrate an injury in fact. Government action will be sufficiently chilling when it is likely to deter a person of ordinary firmness from the exercise of First Amendment rights.
When a plaintiff faces a credible threat of prosecution under a criminal statute he has standing to mount a pre-enforcement challenge to that statute. A non-moribund statute that facially restricts expressive activity by the class to which the plaintiff belongs presents such a credible threat, and a case or controversy thus exists in the absence of compelling evidence to the contrary. This presumption is particularly appropriate when the presence of the statute tends to chill the exercise of First Amendment rights.
VSHL will face a significant impediment if we delay consideration of the regulation's constitutionality. The presence of the regulation requires VSHL “to adjust its conduct immediately.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (noting that these types of “substantive rules” are “ ‘ripe’ for review at once”).... Our decision today is not an abstract interpretation, but a clarification of the conduct that VSHL can engage in without the threat of penalty. Therefore, we hold that the controversy is ripe for review.
End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |