How much regulation is necessary?

There are a number of prominent websites that are devoted to attacking practitioners of herbal medicine as either unqualified or dangerous or both. Many of those who make a career out of herbalism are indeed qualified. Some may have undergone formal training at a federally accredited institution (such as ND, DC, LAc). Such licensed practitioners are required to adhere to the scope of practice in their state and meet certain standards, including board examinations.

In addition, common law gives all citizens the right to practice herbalism as long as certain precedents are adhered to. These precedents have now been enshrined as Health Freedom acts in various states, including California. Health freedom acts recognize the long history of safe practice of herbalism by assorted non-medically trained practitioners. This would include Native Americans, Chinatown herbalists, and Hispanic curanderos. Which is not to say that herbs are inherently safe, but rather that there are ancient traditions that allow herbs to be used safely despite their risks. Such herbalists may not always have gone to a formal medical school, but they are still able to be both safe and effective. The human mind has developed many strategies to cope with the natural world. We should be careful not to hastily dismiss the ideas of great civilizations despite their peculiar nature. China has perhaps survived thousands of years not by chance. 

Health freedom acts require certain disclosures on the part of the herbalist and take a buyer beware philosophy, as well. In other words, if the law is followed, the patient is acting with informed consent. Finally, lay herbalists are acutely aware of their precarious legal footing and often go to great lengths to insure that their patients seek conventional medical attention for all lingering or emergent complaints. If this were not true, there would have been a rash of adverse incidents in the past few decades. Instead, there are very few incidents of incompetence or negligence related to the professional practice of herbalism by NDs, DCs, or LAcs, as far as we know. All the major media incidents involved self-medication, typically with stimulants like ephedra used for weight loss (a nontraditional use).

One of the principles behind health freedom acts is that citizens should have unfettered access to information, substances, and practitioners for their own personal use. Such freedom would not prevent the government from encouraging and overseeing a voluntary framework that addresses licensing, certification, standardization, etc. The public could be made aware through televison advertising that while there are no restrictions on procuring any herbal products for any personal use nor upon contracting the services of any person for health advice, there is also no inherent government protection for such actions.

The use of standardized products and licensed healthcare professionals ultimately makes it the government’s responsibility if something goes wrong. I believe a large percentage of the population prefers this type of protection against loss, as compared to the risk that comes from unguaranteed personal contracts. Thus, there would always be a certain demand for a market that catered to this need. Even many who lean libertarian would choose some degree of environmental, worker, and food safety laws if history is to be any lesson to us.

That being said, I see no reason why a parallel unregulated herb and herbalism market cannot exist side-by-side this regulated one. As long as consumers had a regulated option, how does the presence of a legal, unregulated market affect those who choose risk?