Nursing mothers trust Mary Jackson. As a lactation consultant at Grady Memorial Hospital in Atlanta, she has taught hundreds of women how to breastfeed over the past three decades. Doctors and nurses recognize her expertise.
But Georgia lawmakers demanded more.
In 2016, they voted to shut down all lactation consultants in the state who lacked credentials from the International Board of Lactation Consultant Examiners. Clearing the hurdle would not have been easy. If the law had taken effect, license applicants would have needed two years of college and at least 300 hours of supervised clinical work — all to perform a service that women have been providing for thousands of years without formal education.
Even Jackson, who has a (different) certification with the Academy of Lactation Policy and Practice, would have fallen short of the new standard. Overall, about 800 lactation consultants stood to lose their jobs due to this new licensing requirement. Jackson, co-founder of Reaching Our Sisters Everywhere, a nonprofit advocacy group that caters to African American mothers, says low-income families would have suffered the most, especially in rural areas with limited access to care.
Fortunately, a court order put enforcement on hold while Jackson and ROSE challenged the law. On March 3, they scored a hard-fought legal victory, ending the licensing regimen before it started. Our public interest law firm, the Institute for Justice, represented them.
Although the win was satisfying, none of the conflict was necessary. The proposed legislation automatically triggered a “sunrise review,” a type of government study conducted in more than a dozen states, to determine whether occupational regulation is warranted to protect public health and safety. Georgia’s reviewer studied the need to license lactation consultants and found a clear answer: no.
All lawmakers had to do was listen. Instead, they pushed forward with a licensing requirement to fix a problem that did not exist.
Similar examples of legislative overreach abound nationwide. A new report from the Institute for Justice, “Too Many Licenses? Government ‘Sunrise’ Reviews Cast Doubt on Barriers to Work,” examines more than 30 years of sunrise studies and finds that they seldom support licensing. Overall, they decline 80% of the time to recommend the heavy-handed regulatory tool, an overwhelming figure that calls into question the need for many types of licenses, including those already on the books.
The Institute for Justice report found that the review process, designed to help legislators make informed policy decisions, can slow the growth of licensing. But states often ignore recommendations to forbear.
Pressure from industry insiders might be one reason. Influential groups often convince lawmakers that new licenses are necessary, but even claims that seem legitimate frequently fall apart under scrutiny. Surgical assistant associations, for example, have asked for licensing because the occupation involves direct interaction with patients. Yet reviewers in Colorado and Georgia observed no known complaints against surgical assistants, who work under the supervision of licensed surgeons. Ultimately, reviewers in both states found no evidence of harm and concluded that licensing would not help patients.
The evidence shows that rather than protect public interests, licensing protects special interests. Occupational and professional associations with self-serving agendas triggered at least 83% of sunrise reviews, while consumer advocates triggered just 4%. Georgia’s push to license lactation consultants came from the U.S. Lactation Consultant Association, which stood to benefit if the law had taken effect.
Special interest groups are tenacious. If they fail to undercut the sunrise process on their first attempt, they often come back. In just one example, the Professional Private Investigators Association of Colorado tried five times before successfully pushing through its plan to license private investigators.
No magic bullet exists to prevent overregulation, but lawmakers should consider a rigorous sunrise process as a tool. With or without the safeguard, lawmakers must be proactive to stop unnecessary licenses — especially when industry lobbyists are behind them.
Lactation consultants did not need all the grief in Georgia. The next battle will occur in Idaho, where African-style hair braiders filed suit March 8 to challenge an onerous licensing regimen. What other unnecessary licenses might already be on the books or up for legislation?
If regulators can stand between a nursing mother and her fussy baby, nobody is safe.
Kathy Sanchez is a researcher at the Institute for Justice and lead author of “Too Many Licenses?” Daryl James is an Institute for Justice writer.
