A way out of the maze: federal agency preemption of state licensing and regulation of complementary and alternative medicine practitioners.

I. INTRODUCTION In recent years, complementary and alternative medicine ("CAM") has grown in both popularity and economic import across all segments of society and is now an established presence in the lives of millions of Americans.' It has generated its own field of adherents, practitioners, opponents, lobbyists and counter-lobbyists, case law, and regulations. On one side of the CAM equation stand the advocates of CAM: its practitioners and satisfied patients. On the other stand its detractors: its dissatisfied patients, groups within the established or mainstream medical community, and historically, the American Medical Association ("AMA").2 In the aggregate, the two sides engage in large scale scientific and philosophical battles over how best to treat or address the health care needs of patients. On a smaller scale, individuals on each side are essentially lobbying to protect their professions and their jobs. The struggle between the two warring camps fills volumes of medical, legal and popular scholarship. However, it is not the point of this Note to address the validity of the debate between CAM and mainstream medicine. This Note shall attempt to examine the complex battleground of regulation and professional licensure which separates the two factions, and will propose a peace treaty. Part II of this Note provides an overview of CAM and the licensing maze currently in place for CAM providers. Part II also discusses the state's power to regulate under the Police Power and the emergence of CAM as part of the national healthcare debate. Part III of this Note outlines the subversive tendency of lobbying captivity in regulation and the special lobbying issues confronting CAM regulation. Part IV recommends federal regulatory preemption of existing state licensing regimes and urges the National Center for Complementary and Alternative Medicine (NCCAM) to adopt a regulatory function. Part IV also outlines the mechanism of federal regulatory preemption based on the model of the Cigarette Labeling Act. Part IV further focuses on the capacity of the NCCAM to step into a regulatory role, and discusses potential counterarguments. This Note argues that the current regime of individual state licensing schemes to control access to CAM is unworkable, and that the only way out of the maze of regulations is through federal regulatory preemption with the NCCAM taking on a regulatory agency function. II. HISTORICAL BACKGROUND AND OVERVIEW A. DEFINING COMPLEMENTARY AND ALTERNATIVE MEDICINE CAM is best defined negatively. It is broadly defined as those treatments and healthcare practices "not presently considered an integral part of conventional medicine."3 The "complementary" portion of CAM denotes therapy used to supplement or augment traditional or mainstream medicine.4 The "alternative" component denotes therapy used instead of traditional or mainstream medicine.5 CAM comprises a vast number of treatments, theories, systems, methods and ideologies that depart from traditional medicine in a number of ways.6 Central to the concept of traditional or allopathic medicine is its attempt to diagnose and treat conditions and symptoms based on evidence and scientifically researched, proven curative methods.7 CAM, on the other hand, embraces concepts of wholeness, energy, balance, spirituality, lifestyle, biology, sociology and a host of other notions, which together constitute wellness or which individually or in combination with allopathic and other medicine may be used to cure or correct disease.8 CAM is, therefore, very inclusive and very difficult to classify. The National Institutes of Health ("NIH") has created the NCCAM, which has undertaken a classification scheme for CAM treatments.9 Despite efforts to classify and categorize CAM practices, the nature and scope of alternative treatments often depend on a patient's perceived (non-quantifiable, non-scientific) improvement in his or her state of wellbeing, making it inherently difficult to regulate or license. …