Representing Vietnamese immigrant and spa owner Cindy Vong, whose business known as “fish spas” attracted scores of customers to enjoy the sensation of tiny fish nibbling on their feet, the Institute is urging the Court to set limits on the power of state and local governments to prohibit economic activities. In the process, the Institute is asking the Court to reconsider a 142 year-old precedent, The Slaughter-House Cases, that removed constitutional constraints on economic regulations.
“In the Internet era, consumers and producers have nearly limitless opportunities,” said Clint Bolick, the Goldwater Institute’s vice president for litigation and Vong’s lawyer. “Too often, the government’s reflexive reaction is to prohibit activities it doesn’t understand. We want to restore the proper constitutional balance between the power to protect public health and safety and freedom of enterprise.”
Fish spas are common throughout Asia, Europe, the Middle East, and in many U.S. states including Virginia, Maryland, and Ohio. Patrons dangle their feet in tanks or natural pools containing tiny toothless garra rufa fish, which gently kiss away dead skin from their feet. This treatment is also used by patients suffering from psoriasis.
Cindy Vong’s family escaped Communist oppression to emigrate to the U.S. in 1983. In 1989, Cindy earned American citizenship. She became a licensed nail technician and opened a salon in Gilbert, Arizona. After experiencing a fish spa on a trip to Asia, she decided to open one in her salon, investing $40,000 in equipment and renovations and creating a health and safety protocol that included inspecting and cleansing the feet and using fresh water for each treatment. The Spa Fish business was a wild success, attracting patrons from multiple states. (A video of Vong’s fish spa treatment can be viewed at https://www.youtube.com/watch?v=TA99-xS7nGE.)
Although the spa generated no consumer complaints, the Board of Cosmetology shut it down. Classifying the fish as nail technology “implements”—like nail clippers and emery boards—the Board found that the practice was illegal because the fish could not be sanitized or thrown away after use.
In 2011, the United Kingdom Health Protection Agency, after monitoring the estimated 1.4 million fish spa treatments in that country every year, found that any public health and safety risk from fish spas is “very low” and can be further reduced through reasonable safety precautions. Neither that agency nor the U.S. Centers for Disease Control has identified a single instance of disease transmission from fish spas anywhere in the world. By contrast, nail salons use products and practices that frequently cause harm and disease transmission, yet those products and practices are only lightly regulated.
The Institute argued that given the low danger, there was no need for the Board of Cosmetology to resort to the harshest tool in its regulatory arsenal: a complete prohibition. But finding that the “risk is not zero,” the trial court upheld the ban, and the court of appeals affirmed that decision.
“If the government can obliterate an economic activity anytime ‘the risk is not zero,’ then its power to destroy legitimate businesses is limitless,” said Bolick. Fish spas have been outlawed in 18 states.
The Vong ruling is at odds with other federal and state court opinions around the country that have struck down bans on such economic activities as shoeshine stands, jitney transportation services, and sales of caskets to consumers under the due process and equal protection guarantees of the U.S. Constitution. But the U.S. Supreme Court never has ruled on whether the government must do more to justify a complete prohibition, rather than just a regulation, of a business activity.
The framers of the post-Civil War 14th Amendment sought to protect the rights of newly freed African-Americans to earn a living through the amendment’s “privileges or immunities” clause. But that provision was erased in 1873 in a 5-4 decision in The Slaughter-House Cases, which upheld a corrupt Louisiana slaughterhouse monopoly that put hundreds of butchers out of business. Slaughter-House is condemned by legal scholars across the philosophical spectrum, but the Supreme Court has never reconsidered the decision. However, several justices questioned the ruling in McDonald v. City of Chicago, the 2010 decision holding that the Second Amendment right to own firearms is protected against state and local laws. Justice Clarence Thomas has called on the Court to overturn Slaughter-House.
“When Cindy Vong became an American citizen, she became heir to our nation’s sacred promise of opportunity,” Bolick said. “We hope the Supreme Court will make good on that promise.”
Read more about Vong v. Aune here.
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