The Herbalist’s Scope of Practice in New York State
The Legal landscape for an herbal practice in New York State is murky, if anything. While researching this topic I was wading through litigious articles. I found myself submerged in writings that explained the scope of acupuncturist and chiropractors but just couldn’t really pin down the herbalist. I think this is because without licensure and regulation the definition of what qualifies one as an “herbalist”, is also murky - in my opinion this isn’t necessarily a bad thing. Plants are for the people and the understanding of their wisdom and application is so nuanced. Anyone can call themselves an herbalist - but to practice medicine you must go through rigorous schooling, clinical training, and licensure processes. The overarching theme I am finding is that language and understanding of scope of practice is key as a practicing herbalist anywhere in the United States.
Article 131 of New York State Education Law defines the practice of medicine as: "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition" (Section 6521) and restricts the practice of medicine to those licensed or authorized by law.” As the clinical herbalist we must be sure to not cross any of these lines. According to the NYS Department of Education - “many complementary and alternative therapies can be performed by the lay public and do not require that the practitioner be licensed by a government entity, such as the Education Department. A licensed professional, including a physical therapist (PT) or physical therapist assistant (PTA), may obtain certification in complementary and alternative therapies.”[1].
How one may describe themselves as an herbalist and the legal restrictions around how they may market themselves, is one place where language comes in. The FDA prohibits claims that herbs can diagnose, treat, cure, or prevent any diseases.[2] The definitive rule around the liability of practicing as an herbalist in New York State is unclear aside from it being illegal to practice medicine without a license. It all seems to loop back to language. Herbal Content Cottage wrote a great article where they delve into the importance of this, describing the FDA’s disease claim and structure/function claim where the FDA will investigate herbal companies that make claims of curing disease or suggest an herb effects a specific disease. They share the example ““St. Johns wort helps ease depression” is a structure/function claim because it suggests the herb (St Johns wort) affects a specific disease (depression). The FDA/FTC requires “competent and reliable scientific evidence” for this type of structure/function claim to be valid.” [3] The company that I insure my doula business through provides my general liability insurance for a myriad of alternative practitioners but not explicitly “herbalist” - Health Educator is listed and I think this may encompass my herbal practice as I am a certified “Women’s Herbal Educator”. I’m not completely sure if insurance will be necessary but it seems like an important consideration and I am interested in hearing from other practicing herbalists about their lived experience. Although law around collaboration with other practitioners is unclear - although I believe these relationships could truly only be beneficial to approaching one’s health holistically.
The American Herbalist Guild states “There is currently no licensing or certification for herbalists in any state that precludes the rights of anyone to use, dispense, or recommend herbs.”[4] The American Herbalist guild offers peer-reviewed credential that allows the practitioner to refer to themselves as a Registered Herbalist but does not support the imposition of licensing for herbalists and states “In the absence of licensing, the First Amendment of the Constitution protects our freedom of speech to provide information to clients related to their health. However, this is restricted by the necessity to avoid practicing medicine without a license.”[5]
New York is a very blue state that is said to be functioning under the pretense of democracy. As far as “Health Freedom Laws” have very strong laws focused on protecting reproductive care and access to abortion as well as gender-affirming care and for this I am grateful. With such a focus on autonomy of health you’d think the herbalists wouldn’t have to practice in such fear of litigious action. We, as herbalists, will continue to tread lightly and speak carefully to assure we cause no harm while supporting our community with continuity and care.
[4]Legal and Regulatory FAQs – American Herbalists Guild
[5]Legal and Regulatory FAQs – American Herbalists Guild
