If a county health department employee runs a weight-loss program as part of her job, does she have to follow the state weight-control-services regulations?
Plain-English summary
The North Carolina Dietetics/Nutrition Practice Act (DNPA) is the state's licensing scheme for dietitians and nutritionists. The general rule is that a person who practices dietetics or nutrition must be licensed under the Act. But the Act includes several exemptions, two of which are relevant here:
- An employee of the State, a local political subdivision, or a local school administrative unit, while engaged in dietetics/nutrition within the scope of that employment. § 90-368(5).
- A person providing weight-control services, conditioned on the program having been reviewed by a licensed dietitian/nutritionist or an American Dietetic Association registered dietitian. § 90-368(7).
The state implemented the weight-control-services exemption with regulations at 21 N.C.A.C. 17 .0200, requiring weight-control programs to go through a review-and-approval process. The question put to the AG: do those weight-control regulations apply to county health department employees?
The AG answered no. Local government employees are completely exempt from the DNPA while doing dietetics/nutrition within the scope of their employment. The weight-control regulations only operate inside the Act, implementing the § 90-368(7) exemption. If the Act does not apply to a person in the first place because of the broader § 90-368(5) exemption, the weight-control regulations cannot apply either. There is no need for a county employee to seek review and approval of a weight-control program under the DNPA framework.
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
The DNPA was enacted to set qualification standards for dietitians and nutritionists holding themselves out to the public as licensed practitioners. Like most professional licensure statutes, it carves out exemptions where the regulatory purpose is already met by another oversight mechanism. The local-government-employee exemption rests on the assumption that public employers already vet their staff for relevant credentials and supervise their professional practice, so a separate state license is unnecessary.
The weight-control-services exemption is narrower. It addresses commercial weight-loss services, which were a growing industry by the mid-1990s and not all of which involved licensed dietitians. The legislature chose not to require full licensure for those services, but conditioned the exemption on a review by a licensed dietitian (or an ADA-registered dietitian). The 21 N.C.A.C. 17 .0200 regulations supply the procedural mechanism for that review.
The AG's analysis was a straightforward priority-of-exemptions point. Section 90-368(5) is a complete exemption from the Act for a defined class of practitioners. Section 90-368(7) is a conditional exemption for a defined class of services. The two exemptions can both apply to the same person (e.g., a county dietitian who runs a weight-control program is both a § 90-368(5) employee and a person providing § 90-368(7) services). When both apply, the broader complete exemption controls; nothing in § 90-368(7) suggests it overrides or limits § 90-368(5).
Common questions
Did this opinion mean county dietitians can do anything they want without oversight?
No. The opinion only addressed the DNPA. County employees are still bound by their employer's policies, county health department supervision, state public health regulations, and any other professional ethics standards they're individually subject to. The DNPA exemption removes one specific layer of state licensure regulation, not all regulation.
Does the same exemption apply to other state and local government dietitians?
Yes. Section 90-368(5) by its terms covers employees of the State, local political subdivisions, and local school administrative units, plus persons who contract with those entities while doing nutrition work within the contract's scope. School-system dietitians, state-hospital dietitians, and prison dietitians would all fall within the same exemption while doing in-scope work.
What if a county employee ran a weight-loss program after hours, as private moonlighting?
The DNPA exemption only applies "within the scope of that employment." A county employee running a private weight-loss business outside her job would not be within scope and would have to satisfy the DNPA in some other way, such as having the program reviewed by a licensed dietitian under § 90-368(7) and 21 N.C.A.C. 17 .0200, or holding her own DNPA license.
Source
Citations
- N.C. Gen. Stat. § 90-368 (1993)
- 21 N.C.A.C. 17 .0200 (1995)
Original opinion text
March 7, 1996
Alice Lenihan
Department of Environment, Health and Natural Resources, Nutrition Services Section
PO Box 10008
Raleigh, North Carolina 27605-0008
Re: ADVISORY OPINION; DIETETICS/NUTRITION PRACTICE ACT; N.C.G.S. § 90-368
Dear Ms. Lenihan:
You asked that we review the Dietetics/Nutrition Practice Act ("DNPA" or "Act") and its exemptions to determine whether the regulations for review and approval of weight control services apply to local government employees. After reviewing the Act and the regulations, we conclude that the weight control services regulations do not apply to local government employees engaged in the practice of dietetics/nutrition within the scope of their employment.
The DNPA provides for the licensure and regulation of persons engaged in the practice of dietetics/nutrition and for the establishment of educational standards for those persons. The Act specifically exempts from its requirements certain persons and practices. One such exemption is for "[a]n employee of the State, a local political subdivision, or a local school administrative unit or a person that contracts with the State, a local political subdivision, or a local school administrative unit while engaged in the practice of dietetics/nutrition within the scope of that employment." N.C. Gen. Stat. § 90-368(5) (1993). Therefore, local government employees, such as employees of a county health department, are exempt from the DNPA while engaged in the practice of dietetics/nutrition within the scope of that employment.
The DNPA also exempts from its requirements a person who provides weight control services. See N.C. Gen. Stat. § 90-368(7) (1993). This exemption is allowed provided that, among other things, the weight control program has been reviewed by a licensed dietitian/nutritionist or a dietitian registered by the Commission on Dietetic Registration of the American Dietetic Association. The regulations for the review and approval of weight control services implement this exemption under the DNPA. See 21 N.C.A.C. 17 .0200 (1995).
The regulations for the review and approval of weight control services do not apply to local government employees. Local government employees engaged in the practice of dietetics/nutrition within the scope of that employment are completely exempt from the requirements of the DNPA. Because of this exemption, the weight control regulations that implement the DNPA exemption for persons who provide weight control services do not apply to local government employees.
Please call if you have any questions regarding this matter.
Ann Reed
Senior Deputy Attorney General
Donna D. Smith
Associate Attorney General