To: Judy Boyer, Chair. Government Relations Committee. Arizona Chapter, American Massage Therapy Association (AMTA-AZ).
From: Albert Schatz and Mary Brewster
What Sally Hacking told
the Arizona Coalition
Sally Hacking told the Arizona Coalition that "Legislators [are] driven by accountability - they will impact someone's ability to work or not" - [so they] must prove they are regulating for public protection. [This] makes it difficult because we generally don't hurt people." (Minutes of the April 1, 2000, meeting of the Arizona Coalition of Massage Therapists, Bodyworkers, and Somatic Practitioners). Sally Hacking did not refer to any harm that has actually occurred, and how serious that harm was. If massage therapists don't harm people, massage is safe. If massage is safe, state regulation is not needed to protect the public from harm.
What you (Judy Boyer) told members
of the AMTA-AZ Chapter
Your letter of December, 2000, told the members of the AMTA-AZ Chapter: "the purpose of the bill is to protect the public health, safety, and welfare from potential harm or actual harm by untrained massage therapy/bodyworkers."
A one minute lesson on harm
Actual harm is harm which has actually occurred. There are two major categories of harm that have actually occurred: physical harm and sexual harassment. The latter causes emotional harm that may or may not involve physical contact. The term "potential harm" expresses the potential for harm. If there is a potential for harm, the harm may or may not actually occur. Therefore actual harm and potential harm are very different. There is no well-documented evidence that state regulation has completely prevented or even minimized physical harm and sexual harassment.
What harm are you (Judy Boyer)
If the AMTA-AZ Chapter has well-documented cases of serious physical harm and sexual harassment (caused by massage therapists) how many people have been harmed, what was the nature of the harm in each case, and how serious was it?
If the AMTA-AZ Chapter does not have any well-documented cases of serious harm, that has actually occurred, what harm are you talking about? And why is the AMTA-AZ Chapter promoting state regulation to protect the public from harm which has not occurred?
What untrained and poorly
trained practitioners are you and
Susan Pomfret talking about?
In your December, 2000, letter, you referred to untrained massage/bodywork therapists. Approximately how many untrained massage/bodywork therapists are presently working in Arizona, and what well-documented evidence do you have that they are indeed untrained?
In her Guest Editorial (in Massage Magazine. (January/February 2000), Susan Pomfret wrote, "With low licensing requirements in some areas, poorly trained therapists flood the market." Susan has not replied to Schatz's request for well-documented evidence that her "poorly trained" therapists are indeed poorly trained.
What well-documented evidence do you and Susan have that these allegedly poorly trained and allegedly untrained therapists have actually harmed anybody? If they have, how many people have been harmed, what was the nature of their injuries, and how serious were the injuries?
If you and Susan do not reply to our request for the above-mentioned information, we conclude that neither one of you has any well-documented evidence that justifies your allegations about poorly trained and untrained practitioners.
That is not surprising because there is no well-documented research which provides convincing evidence of any correlation, direct or inverse, between hours of training of massage therapists and (a) their hands-on competence, (b) the quality of their work, (c) the satisfaction their clients experience, and (d) the incidence of harm they may have caused.
Schatz has estimated that massage therapists presently do about 2,000, 000 massages a year in Arizona If massage therapists have seriously harmed a significant number of people in Arizona, that harm certainly would have been detected with 2,000,000 massages. (Massage Law Newsletter. Vol. 16. No. 4)
Harm is an important factor in the
alleged need for state regulation
We believe that the information about harm, which we request is the same information about harm that Arizona legislators will require the Arizona Coalition to provide in order to validate any alleged need to regulate massage therapists to protect the public from harm.
If the AMTA-AZ Chapter has well-documented evidence that massage therapists have caused serious harm, why has the AMTA-AZ Chapter not presented that information to its members? Have you told Sally Hacking about that harm?
If the AMTA-AZ Chapter does not have well-documented evidence that serious harm has actually occurred, why is it promoting state regulation of massage therapists to protect the public from harm that has not actually occurred?
A Georgia Senate Committee
differentiated actual harm from
the potential for harm
With respect to your comment about "potential harm or actual harm" (in your December, 2000, letter)," note the following comments (about "actual harm" and the "potential for harm") by a Georgia Senate Committee. The AMTA-AZ Chapter and The Arizona Coalition may learn an important lesson by understanding happened to the AMTA Chapter in Georgia, and why.
When the Georgia AMTA Chapter promoted licensure, it pointed out that potential harm was associated with massage, but did not provide any well-documented evidence that any harm had actually occurred. The Georgia senators disregarded the Georgia Chapter's undocumented allegations, did their own research to find out how much harm had actually occurred, and concluded:
"There is little evidence that unqualified massage therapists have inflicted harm on clients..
"There is no documented danger of actual harm to the public.
"The potential for harm to the public appears to be remote and would not be alleviated by licensing."
What well-documented evidence does the AMTA-AZ Chapter have that the above-mentioned conclusions of the Georgia Senate Committee do not apply to Arizona; and, if so, why not?
Protecting the public from
With respect to sexual harassment, the Georgia senators pointed out that Georgia has a law which prohibits sexual harassment by anybody, including massage therapists. Therefore, Georgia does not need to regulate massage therapists to protect the public from sexual harassment.
Is there any law which prohibits sexual harassment in Arizona? If so, does this law exclude sexual harassment by massage therapists? If not, why does Arizona need another law, in the form of state regulation of massage therapists, to protect the public from sexual harassment when that protection is provided by a law already on the books?
Does Arizona need two laws that provide its citizens from the same kind of harm?
A U.S. Supreme Court decision
differentiated actual harm from
the potential for harm.
This decision (in Ibanez v. Florida Dept. of Business and Professional Regulation, Board of Accounting. No. 93-539. June 13, 1994) tells us:
"Truthful advertising related to lawful activities is entitled to the protections of the First Amendment... Misleading advertising may be prohibited."
"Only false, deceptive, or misleading commercial speech may be banned." "Commercial speech that is not false, deceptive, or misleading can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest."
"The States's burden is not slight; the free flow of commercial information is valuable enough to justify imposing on WOULD-BE REGULATORS the costs of DISTINGUISHING the truthful from the false, the helpful from the misleading, and THE HARMLESS FROM THE HARMFUL."
"We cannot allow rote invocation of the words ''POTENTIALLY misleading' to supplant the Board's burden to 'demonstrate that the HARMS it recites are REAL and that its restriction will in fact alleviate them to a material degree." "MERE SPECULATION OR CONJECTURE' WILL NOT SUFFICE."
What does this
U.S. Supreme Court decision tell us?
We believe this decision (and other decisions which are cited in No. 93-539), require the Arizona Coalition to provide Arizona legislators with the well-documented evidence of REAL HARM (that has ACTUALLY OCCURRED) which the Georgia senators required. The Georgia Senate Bill 300 (to regulate massage therapists), which the Georgia AMTA Chapter promoted, became a dead duck when the Georgia AMTA Chapter was unable to provide any well-documented evidence of REAL HARM that had ACTUALLY OCCURRED.
Will history repeat itself with the AMTA-AZ Chapter?
Since there is insufficient well-documented serious harm to justify the need for state regulation in Georgia to protect the public from harm, why would anyone expect that there is enough well-documented serious harm in Arizona to justify the need for state regulation in Arizona to protect the public from that same kind of harm?
People in Arizona are not more susceptible to being harmed by massage therapists than people in Georgia?
The AMTA-AZ Chapter has
no mandate for state regulation
from its members
Your letter reports that only 16% of the members of the AMTA-AZ Chapter were sufficiently interested in state regulation to respond to the survey. This 16% response does not indicate that the AMTA-AZ Chapter has what we consider a MANDATE FOR STATE REGULATION.
Why is the AMTA-AZ Chapter
promoting state regulation?
1. The AMTA-AZ Chapter has no well-documented evidence that massage therapists have caused enough serious harm to justify the need for state regulation to protect the public from that harm.
2. A MAJORITY OF ARIZONA SCHOOLS may want state regulation, but only A MINORITY OF AMTA-AZ MEMBERS want state regulation.
How valid is the survey?
Did the survey (distributed to AMTA-AZ members early this year) ask AMTA-AZ members whether they want or do not want state regulation, for whatever reason? If not, why not? If so, how many responded that they did not want state regulation? Why isn't this information in your December, 2000, letter to AMTA-AZ members?
The AMTA-AZ Chapter does
not have the numbers
The national office of AMTA informed us that the AMTA-AZ Chapter has only 752 members. The combined membership of ABMP and IMA in Arizona is considerably greater than the AMTA-AZ Chapter's 752 members. Consequently, there is another factor (in addition to the lack of well-documented serious harm) that the AMTA-AZ Chapter has to consider. This is the number of massage therapists who may tell their state legislators that there is no need for state regulation because there is no harm.
If you or others believe there is any misinformation in this report, or in Schatz's previous reports about Arizona, please let us know what that misinformation is, why you consider it misinformation; and give us permission to publish your comments in the Massage Law Newsletter.