On Monday, the Supreme Court refused to consider the Goldwater Institute’s appeal of an Arizona court decision upholding the state Board of Cosmetology’s ban on fish pedicures.
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 had urged the Court to set limits on the power of state and local governments to prohibit economic activities. In the process, the Institute asked the Court to reconsider a 142 year-old precedent, The Slaughter-House Cases, that removed constitutional constraints on economic regulations.
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.