MLN Vol.9.No.2

Massage Law Newsletter

Vol. 9, No . 2                                  ISSN 1073-5461                                      April 1999   



Albert Schatz and Mary Brewster


Is state regulation of massage illegal? The Public doesn't

need state regulation. So, who does want it, and why?

Geography determines whether or not you're considered a

competent massage therapist.

The National Certification Examination doesn't measure


The importance of practice in learning to do massage.

The importance of educational individuality in learning to do massage.

Why? Why? Why? Why?





The headlines of this first report are the titles of the first two reports which my colleagues and I published on state regulation in the fall of 1993, in Massage & Bodywork Quarterly.

Since then we have accumulated considerably more evidence which questions the legality of state regulation, and why it metastasizes.

State regulation is governmental inter-  ference in private business.

Constitutional law and U.S. Supreme Court decisions consider governmental interference in private business justified only when it is necessary to protect the public's health, safety, welfare, and morals.

Consequently, there are only two legitimate  reasons for state and local governments to regulate massage therapists. These are (a) to protect the public from harm, and (b) to reduce prostitution by making it more difficult for prostitutes to masquerade as massage therapists.

Is state regulation of

massage illegal?

There's  no well-documented evidence which justifies governmental regulation of massage to protect the public from harm or to reduce prostitution.

With no well-documented evidence that significant harm has  actually occurred, we have to rely on the following well-documented evidence that significant harm has not actually occurred.

The fact is that so many massage therapists with so many kinds of training in so many states (which do not regulate massage) have been massaging so many people with so many contraindi-cations, so many times for so many years, with so many well-documented reports of so many benefits - but with so few if any well-documented reports of harm.

We also have to rely on well-documented research by government agencies, that have done their own research, found no harm, and have therefore not regulated massage therapists.

Georgia legislators did not fall  into the potential harm trap. In 1997, the Georgia Occupational Review Council reviewed research, which the senate had done, and concluded:

"There is no documented evidence of actual harm to the public."

"The potential for harm to the public appears to be remote and would not be al-leviated by licensing."

In the Canadian Province of Quebec, the Office of Professions (a governmental agency) conducted a comprehensive two year research project (1990-1991) which revealed that massage therapists, regardless of their training, had not harmed anybody. As a result, Quebec did not regulate massage therapists.

Since there's no harm in Georgia and Quebec, why would  there be harm anywhere else?

Since Georgia and Quebec do not need to regulate massage to protect the public from harm, why should any other states in the U.S and any other Canadian provinces need to regulate massage to protect the public from harm?

Because there's no well-documented evidence of harm, we conclude: Massage therapists should be deregulated because there's no well-documented evidence that regulation is  needed to protect the public from harm by massage therapists, regardless of their training.



There's no well-documented evidence that state regulation and local ordinances benefit the public in any way.

There's no well-documented evidence that state regulation and local ordinances have significantly reduced  prostitution .

There's no well-documented evidence that allegedly inadequately trained massage therapists are  inadequately trained, regardless of their training.

Because there's  no well-documented evidence that any massage therapists (regardless of their training) are inadequately trained, there's  no well-documented evidence that they are incompetent.

There's no well-documented evidence that supposedly inadequately trained massage therapists have caused enough harm, which has been sufficiently serious, to justify regulating all massage therapists to protect the public from that harm.

There's no well-documented evidence that allegedly inadequately trained massage therapists have harmed more people with contraindications, than massage therapists who are allegedly adequately trained.

There's no well-documented evidence that people with contraindications are more likely to be harmed (than people without contraindicat-ions) by massage therapists, regardless of their training and experience.

There's  no well-documented evidence that regulation has protected or is protecting the public from harm; or could protect the pubic from harm if that protection were needed.

(Professional liability insurance offers protection to both massage therapists and their clients. State regulation does not provide that protection.)

There's no generally accepted definition of competence in the massage literature. Nor is there well-documented evidence that any written test can measure the competence of  massage therapists.

There's no well-documented evidence that the present National Certification Examination measures the competence, involved in the hands-on work of massage, despite the allegations that it does that.

(In 1991, the Public Information Committee of the Council for the National Certification Program for Massage Therapists admitted that  "a written examination ... cannot test for essential things like" ... "hands-on work ... of massage therapy?")

There's  no well-documented evidence that the overall competence of a massage therapist, in terms of her daily on-the-job performance, can be meaningfully evaluated by anyone other than her clients.

There's no well-documented evidence that graduates of accredited schools are more competent, in terms of on-the-job performance, than graduates of non-accredited schools.

There's no well-documented evidence that  people who pass the National Certification Examination are more competent than those who fail.

There's no well-documented evidence that massage therapists have more professional status in the eyes of the public in states which regulate massage therapists than in states which do not.



The basic question regarding state regulation  is: What well-documented evidence justifies the need for state regulation of massage therapists?

To the best of our knowledge, there is no  well-documented evidence that state regulation is needed for any reason whatsoever.

Despite that, state regulation exists and is metastasizing.It should therefore be examined.

Fortunately, guidelines that are appropriate for evaluating state regulation, are available  in the Pew Health Professions Commission's report of the Taskforce on Health Care Workforce Regulation. The title of the report is Reforming Health Care Workforce Regulation Policy Considerations for the 21st Century. This report was published by the University of Southern California Center for the Health Professions. December, 1995.

Here are some important areas to which the report directs attention.

With respect to the lack of a generally accepted definition of competence in the massage literature-

"Confusius was once asked by a prince to take charge of government. An observer asked what Confusius' first reform would be. Confusius said,

''I would begin by defining terms and making them exact.' The observer was puzzled. "How can you put things straight by such a roundabout route?'

Confusius answered, 'If terms are not correctly defined, words will not harmonize with things. If words do not harmonize with things, business remains undone, order and harmony will not flourish, and the people will be unable to move hand or foot.'"

"The health care workforce regulation is out of step with today's health care needs and expectations."

"Occupational licensure frequently increases prices  and imposes substantial costs on consumers.

"Licensing proposals are often not in the consumers' best interest."

"It is not at all clear why licensure laws - that is, proxies for competency - should vary according to political boundaries." (Our following report points out that geography determines whether an individual is considered competent or not.)

"Regulatory systems, in large part, have failed to implement mechanisms to evaluate their effectiveness and correct shortcomings."

"Health care workforce reform must include regulatory reform."

"Regulation of the health care workforce  will best serve the public's interest by ... respecting the consumers' rights to choose their health care providers from a range of safe options."

"Much of the confusion is due to misuse of the terms 'licensure,' 'certification,' and 'registration.'"

"Practice acts" (i.e., licensure) "can be exclusive and monopolistic."

"State certification" [i.e. title protection] ... does not provide a service monopoly. Anyone may deliver the service, but only those actually certified may use a protected title."

(A title protection act, which protects titles only, but does not restrict  services, may not prohibit use of the word massage in advertising because the word massage is not a title. Nobody calls herself a massage. She may  say, "I do mas-sage. Or,"I am a massage practitioner." But she does not say, "I am a massage." Also, the First Amendment protects "freedom of speech" which includes commercial speech with the word massage.)

"Rigid requirements for education and training from an accredited institution ignore comparable or innovative education, training, and work experience."

"Any uncritical reliance on professional associations alone in establishing the education, training, and testing requirements for entry-to-practice raises questions of accountability and effectiveness."

"Policy options for state consideration"  should include: "Grant title protection without accompanying scope of practice acts to some professions. This would be appropriate for professions (i.e., massage therapy) which provide services which are not especially risky to consumers.""



Ye shall know the truth and the truth shall make you free.John 8:32

"The fault, dear Brutus, is not in our stars but in" our state regulation. - adapted from Shakespeare's Julius Caesar. Act 1, Scene 2


We are told, in one way or another, that state regulation is needed to assure competence  and to protect the public from harm.

However, there's no well-documented evidence that state regulation is needed to assure competence and to protect the public from harm.

On the contrary, there is  well-documented evidence that state regulation does not assure competence and does not protect the public from harm. State regulation is not needed to do something that it cannot do.

Why state regulation

is a problem 

 State regulation tells many massage therapists, "You are no longer permitted to make a living by doing what you have been doing successfully for many years" - unless you spend a considerable amount of time and money (which many of you may not be able to afford) to meet state requirements that are not justified. For others who want study massage therapy, state regulation  increases the cost of training. For all massage therapists, state regulation also increases the annual expenses involved in doing business, because many fees are increasing.

Geography determines


State regulatory requirements define the training that is allegedly adequate to assure competence. These requirements vary considerably from state to state. In other words, state regulatory requirements vary geographically. This means that geography determines what an allegedly adequate training for massage therapy is.

Consequently, geography determines (a) which massage therapists are allegedly  adequately trained and therefore allegedly competent, and (b) which massage therapists are allegedly inadequately trained and therefore allegedly incompetent.

Why "allegedly"?

We use the term allegedly because all state regulatory requirements are arbitrarily determined. They are arbitrarily determined because  they are not based on well-documented evidence. Instead, they are based on assumptions which become allegations of validity. There is a difference between alleged validity and validity which rests on the results of well-documented research.

Back to geography

Assume you  have met the requirements in State A. But the neighboring State B considers the requirements you met in State A inadequate for you to do massage in State B.  In other words, you are adequately trained and competent in State A, but you are inadequately trained and therefore incompetent in State B.

You are simultaneously adequately and inadequately trained and  simultaneously competent and incompetent because the evaluations of both states exist simultaneously, regardless of what state you're in. In other words, at the same time that one state considers you adequately trained, the other state considers you inadequately trained.

You would be the same person in both states, You would have the same training in both states. You would do the same massage in both states. Your client population would be the same in both  states in age, sex, general health, the incidence of contraindications, and in all other respects. These are constants. The only variables are geography and state regulation.

Therefore, the problem is  NOT whether you do or do not have an adequate training or whether you are or are not competent. THE PROBLEM IS STATE REGULATION.

The same thing in Canada

The Canadian Province of Quebec does not regulate massage because it conducted a two-year study which did not uncover a single case of harm associated with massage.

The adjacent Providence of Ontario requires a 2,200-hour training for those who want to call themselves massage therapists. This 2,200-hour training allegedly protects the public from harm. However, Doug Alexander, in Ontario, researched the issue of harm and concluded, "Massage and bodywork are safe. There have never been any cases of physical injury to people."

Alexander is editor of The Journal of Soft Tissue Manipulation published in Ontario. He is also a Contributing Writer for the Massage Therapy Journal published by the American Massage Therapy Association.®

What research reveals

When state agencies have done their own research, they found that massage therapists, regardless of their training, did not cause harm, and they therefore did not regulate massage.

This happened in the Canadian Province of Quebec, which we have already pointed out.

 In Georgia, a senate committee did its own research and concluded: "There is no documented evidence of actual harm to the public." And  "The potential for harm to the public appears to be remote and would not be alleviated by licensing."

Because there's no harm, insurance companies, which pay for injuries, do not charge massage therapists more for professional liability insurance in states which do not regulate massage. The reason is that practitioners in those states are not more likely to cause harm.

State regulation is not needed

for massage therapy

Why do states regulate massage therapists who do not work on people with life-threatening health problems? Contrast this with the fact that states do not regulate people who work on individuals in life-threatening situations that require First Aid and cardiopulmonary resuscitation (CPR);

The American Red Cross offers 4 and 9-hour trainings for First Aid and for CPR. Why is a state-required 500-hour training for massage therapists 6,400% greater than the 9-hour training which is adequate for First Aid and CPR;

and 12,000%  greater than the 4-hour training which is adequate for First aid and CPR.

Why are massage therapists, who do not work on clients with life-threatening health problems, required to have so much more training than people who do First Aid and CPR?

Why do states regulate massage therapists when they don't regulate life guards who have the American Red Cross training of only 30 to 35 hours of classroom work and water activities? Life guards work with people in life-threatening situations.

Why do states  regulate massage therapists  when they do not regulate members of the Fire Department Emergency Medical Service, who work with people in life-threatening situations?  In Philadelphia, the academy training for these people is 128 hours for Basic First Aid and CPR. Paramedics who administer drugs have a one-year training.

How to eliminate the

problem of state regulation

The only way to eliminate the problem of state regulation is to eliminate all state regulation which is compulsory for all massage therapists?

The basic problem of compulsory state regulation is that it unjustifiably adversely affects many people who want to earn a living by doing massage.

This problem will continue to exist as long as state regulation is compulsory for all massage therapists.

The problem cannot be eliminated by having uniform, compulsory regulatory requirements throughout the United States. That will only nationalize the problem of compulsory state regulation..

If the argument is that we are too ignorant to judge good practitioners, all that is needed is to make the relevant information available. If, in full knowledge, we still want to go to someone who is not certified, that is our business. - Milton Freedman

 A wise society trusts individuals to spend their hard-earned dollars as they judge best. - Miscall Nova

Who needs state regulation

and why?

State regulation does not assure competence, and it does not protect the public from harm. So, who needs state regulation, and why?

It seems that proponents of licensing are hopeful that a state license would mean more money, status, and power. - Jerry A. Green, Attorney  for the California Coalition on Somatic Practices.

I think the move toward licensure is regrettable. I believe licensing creates state-sanctioned monopolies ... with the explicit goal of  'protecting the public,' but with the real effect of protecting those who hold the monopolies' respective entitlements, reducing information to the public, and restricting competition. - Don Schwartz

When the right to practice a trade or profession depends not on personal initiative but on the approval of some agency, ... the industry has laid the foundation for the exercise of monopoly power. - J. K. Lieberman

Licensing arrangements ...can be characterized less as methods for protecting the public and for providing external social control in the interest of  the consumer than as a means for protecting the occupation's market dominance. Indeed, licensing has the unique quality of making a violation of the professional monopoly a punishable crime. - Haug

The great truth is never spoken directly, but anybody in that field with two bourbons in them will tell you that these boards work primarily to protect the practitioners and have little or nothing to do with protecting the public. - Former Virginia state official

A rigid requirement, one that completely ignores the qualitative aspects of the individual's experience, appears to be more concerned with excluding 'outsiders', no matter how qualified, than with assuring consumers that 1icensed individuals are safe and effective practitioners. - Shimberg

$$$$ $$$$ $$$$ $$$$

State regulation is the basis for the cor-poratization and monopolization of the massage profession. Monopoly control minimizes or eliminates competition and therefore maximizes the economic advantage for special interest groups.

To find out how much the corporatization and monopolization cost massage therapists and other bodyworkers, we have to follow the money trail.

In 1997, the 21 states which have massage laws presently collect fees amounting to almost $3,000,000 annually from massage therapists and other bodyworkers.

The $3.000.000  was calculated from the renewal fees and the total number of licensed, certified, or registered bodyworkers in states.

Additional fees for certification, continuing education, and insurance; and other costs may be more than the state fees.

From 1992 through 1998, the  National Certification Examination took in an estimated $5,700.000.

Massage therapists and other bodyworkers are  paying from $12,000,000 to $15,000,000 annually. But this is only the beginning. As more states regulate massage, and as requirements are increased, massage therapists and other body-workers may eventually be paying $40,000,000 or more annually.



A news release dated October 10, 1997, and distributed by the National Certification Board for Therapeutic Massage & Bodywork was entitled NCBTMB Content Outline Aligns Exam with Profession's Task.

The news release states. A "blueprint for determining the content of the exam ... is used for construction of a state of the art written examin-ation that assesses the current knowledge and competencies required to practice therapeutic massage and bodywork." 

This tells us that competencies, which are al-legedly assessed by an alleged state of the art written exam, are those that are required to practice (i.e., do) massage  and bodywork. This means the written test allegedly assesses (meas-ures) an individual's competence to do hands-on work.

We have already pointed out that, in 1991, the Public Information Committee of the Council for the National Certification Program for Massage Therapists clearly admitted that "a written examination ... cannot test for essential things like "the "hands-on work ... of massage therapy." 

Since  a written examination could not measure hands-on work in 1991, we don't see how the   alleged "state of the art" written exam can  measure hands-on competence, which the above-mentioned October 10,1997, news release alleges it does?

The "level of knowledge"

The news release tells us that the written exam assesses current knowledge. The 1998, edition of the National Certification Examination Candidate Handbook tells us, "Experts assure that the exam is actually  measuring a person's level of knowledge." We do not understand why it is im-portant to have this information.

There is no well-documented evidence that a  massage therapist's level of knowledge reflects, or predicts how competent she is or will be in the hands-on work involved in massage

A written test can certainly measure how many questions an individual answered correctly. But the test score does not tell us for how many questions the individual actually knew the correct answers, and for how many questions she guessed correctly?

So, what does "level of knowledge" mean? If an individual gets a test score of 100, she obviously answered all the questions correctly. Do employers ask applicants, "What was your score on the National Certification Examination"?

Many individuals, who could not pass the wri-tten  exam, have a "level of knowledge" that has enabled them to satisfy many clients, in some cases for many years, without having harmed anybody.

What is the more reliable evidence that an individual has the level of knowledge needed to be a competent massage therapists? A passing grade on a written test? Or, several years of suc-cessful practice as a massage therapist?

Intuitive knowledge

Finally, one's level of knowledge about  massage includes intuitive knowledge which is acquired and developed by practice.

What is the relative importance of know-ledge that one memorizes, which a written test measures; and intuitive knowledge which one acquires and develops by practice? If there's no well-documented research which answers this question, who knows whether a written test - that allegedly measures a practitioner's competence - is anything more than "much ado about nothing"? 

What we do know is that in 1991, the Public Information Committee of the Council for the National Certification Program for Massage Therapists clearly recognized that "a written examination ... cannot test for essential things like ... the more intuitive aspects of massage therapy."

"Placed and scored"

The 1998, edition of the National Certification Examination Candidate Handbook tells us "only questions that measure your competence and skill are placed and scored on the exam."

We do not understand why we are told that  questions are both "placed and scored" on the written exam. We assume that all questions , which are "placed" on a written exam, will be "scored." Why would any questions be placed on a written exam if they will not be scored?

 "Academic excellence"

The 1998, edition of the Candidate Hand book also tells us, "This is a competency exam." It "is not supposed to measure your 'academic excellence.' The Handbook does not define "academic excellence," but  apparently considers it  different from and irrelevant to competence in the hands-in work of doing massage.

We do not understand why a written com-petency exam ... is not supposed to measure the   academic excellence of a massage therapist. In academic institutions (colleges and universities), academic excellence is determined by grade point averages which are based on course grades that are determined largely by how well students have done on written tests in courses they took.

In 1941, Albert Schatz was elected to Phi Beta Kappa in his junior year (at Rutgers University) exclusively on the basis of his academic ex-cellence. He had the highest grade point average in his class, based on his final course grades which were determined largely by written tests.

He lived and worked with the concept of academic excellence during the decades when he was a professor at the University of Chile, Washington University, Temple University, and other academic institutions. 

In academic institutions, academic excellence may also mean being competent in doing things. This is why science courses and some other courses include laboratory work.

In order to pass certain courses, students have to demonstrate competence in using certain computer programs, doing gymnastics, competing in  sports, playing musical instruments, dancing, singing, dissecting animals, speaking foreign languages, doing archeological fieldwork, and many other physical activities that in one way or another require hands-on work or the equivalent thereof. Competence in all these activities is part and parcel of academic excellence.

Since the written National  Certification Examination cannot  measure the competence that is involved in the hands-on work of doing massage, and is not supposed to measure academic excellence, what does it measure?

The only thing the written exam measures is the number of questions an individual has answered correctly. In other words, it measures the  infor-mation he has memorized.

National certification raises questions about accreditation of massage schools

If graduates of  accredited massage schools can pass the National Certification Examination, why is this examination needed?If graduates of  ac-credited massage schools cannot pass that written exam, why are those schools accredited?



 Many massage therapists, who are self-taught or have little formal school training, have been doing massage successfully for many years, without harming anybody. They have obviously learned what they need to know by doing massage. They have what is called life experience.

One of the most interesting developments in higher education is the academic accreditation of what is frequently called life experience. Harold Taylor has eloquently set forth the justification for recognizing life experience as a legitimate form of education. His comments, quoted below, are taken from the Foreword he wrote for Peter Meyer's book, Awarding College Credit for Non-College Learning (Jossey-Bass, Inc. San Francisco. 1975).

"If you want to ride a horse, dance a jig, climb a mountain, build a boat, write a novel, study history, think intelligently, become educated, a certain amount of instruction in a class in the subject will be useful - perhaps for two or three sessions.

"After that, you will need to get a horse, start dancing, climbing building, writing, thinking, and educating on you own. Otherwise you will not have learned what you need to know; that is, how in fact to do the think you have set out to learn to do. To learn to do something, it is necessary to practice it.

"Although this is astonishingly clear as a general proposition, the entire American educational system [was] built on the opposite principle, that leaning is done only through instruction and intervention by a teacher who explains, describes, instructs, and then certifies that the learner was present in a class while the explanations and descriptions were being given.

"So pervasive is this view of learning and so pernicious its effect in educational institutions that it has taken years of struggle, research, and rebellion to return to the simple clarity of the original truth  about education and to put its consequences into practice.

"The idea that knowledge stems from experience and that knowing is an activity of the one who knows has a respectable ancestry in the British empirical philosophers, the psychology of William James, the views of the existentialists, and the educations theories of Alfred North Whitehead and John Dewey.

"The idea also has the advantage of being continually affirmed by the experience of anyone who has ever learned anything."



There is no one right way  or best way for all people to learn the same thing. This includes massage. People differ from one another in how they  most effectively learn to do different things depending on how their minds function, what they are learning, their  age, their experience, interest, motivation, and other factors.

To understand educational individuality, it is helpful to undertstand Roger J. William's concept of biochemical individuality (Biochemical Individuality. John Wiley & Sons. NY. 1956). This important book discusses how people are biochemically unique.

As a result of that uniqueness, individuals differ from one another in their nutritional needs. For example, one individual may require more or less of a particular vitamin or mineral than another person. This is why the daily ingestion of the same amount of each nutrient does not satisfy the biochemical requirements of all people.

Educational individuality

Educational individuality means that people are educationally unique. As a result of this uniqueness, individuals differ from one another in terms of what they want to learn; and how, when, where, and why they learn.

Some individuals function most effectively in a regularly scheduled, formal classroom setting.

Others do best with independent study which allows them to pursue their interests at their own pace. This is why one and the same course or program does not satisfy the educational needs of all people. This educational individuality is determined by such factors as age, background, interests, state of  health, occupation, and financial circumstances.

Teaching and learning are two

sides of the same coin

There is an important difference between knowing a subject and teaching it. Some people who know their subject well are poor teachers. Good teachers know their subject and know how to teach.

How we think influences how we teach. This is why there is an important difference between teaching massage to people and teaching people to do massage, They  are two sides of the same coin, but the two  sides are different. In the former, the focus is on what is being taught. In the latter, the focus is on helping people learn.

When students practice massage, those whom they work on help them learn by the feedback  they provide. When students learn by personal experience or independent study, they teach themselves. When that occurs, the same individual is both the teacher and the student.

The subject which is taught may be the same regardless of who teaches it. But how it is taught should vary because of the educational individuality of the students.

A competent teacher knows how to teach in ways which are appropriate for the educaional individuality of her students. This is individualized instruction.


Competence in massage therapy is the prac-titioner's ability to provide a service which has the quality that satisfies her clients. This qualitative aspect of massage may be largely intuitively. Competent massage therapists know that each client is different. They therefore do not provide one standardized massage for all clients, but adapt what they do to satisfy the needs of each individual client. Competence therefore includes  the ability to individualize massage.

People have effectively learned to do massage in many different ways. This is why, in states which do not regulate massage therapists, many practitioners have had many satisfied clients for many years without having harmed anybody. Regardless of how they learned massage, they are obviously competent.

There is no well-documented evidence that state regulation, school accreditation, and national certification produce massage therapists who are more competent than those who are self-taught, who learned by formal and informal apprenticeship, and who attended massage schools which varied widely in their total hours of training and the qualitative nature of their curricula.

Massage is a performing art. Like other forms of art, the same massage does not appeal to everybody.

Massage is not assembly-line work. Massage therapists do not manufacture massages that are designed to be identical. This is why industrial quality control standards are not appropriate for evaluating the competence of massage therapists any more than they are for evaluating the competence of teachers.


Why should massage therapists be required to go to schools which meet the same criteria for accreditation?

Why should massage schools be accredited at all? Massage therapists  and the public are doing very well in states which do not regulate these practitioners and accredit schools.

Why should massage therapists be required to pass the National Certification Examination, which does not measure competence?

Why is massage called a trade and an industry instead of a profession? "Tuning" people is different than tuning musical instruments. "Repairing" people is different than repairing computers, radios, refrigerators, and the like.

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