Can a fish be a tool? That’s the legal question at the centre of a case in Arizona in which a pedicurist who used live fish to perform a ‘foot smoothing’ service is suing the regulator that has shut down her business. Her legal representative has said it is a case that “affects the economic liberty of every American”.
Until recently, customers of LaVie Nails & Spa were able to pay $30 to spend 20 minutes with their feet in a tank of warm water filled with 100 Garra Rufa carp. The toothless two-inch fish like to suck off dry skin and, according to the business, leave customers with smooth, soft feet.
The Arizona State Board of Cosmetology (cosmetology is the practice of beautifying face, hair and skin) took the view that fish therapy violates the law concerning tool sanitation. One regulation requires that “any tool of piece of equipment” used in a skin exfoliation must be “stored in a dry storage” (difficult for fish) and disinfected after use (also difficult). The Board ruled that the owner, Cindy Vong, must discontinue the service.
Vong’s suit is a civil rights action which argues that the regulator has unlawfully infringed her economic liberty because its worries about the dangers of fish foot-smoothing are unfounded. She says that the Board’s conduct is “arbitrary, oppressive, discriminatory, and unlawful”. The skin-sucking fish have swum into a legal whirlpool because the constitution provides that “no person shall be deprived of ... property [including money] without due process of law”; Vong argues that there is no law in Arizona which bans fish therapy.
It is an open legal question whether a fish is a tool. The courts can go either way on this sort of legal interpretation issue. In 1956, in a case about travel expenses, Mr Justice Roxburgh decided that the word “horse” in a piece of tax legislation should be interpreted so as to include “aeroplane”.
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American law is an ocean of precedents and under the category of ‘fish pedicures and their legal status’ there is indeed a relevant decision. In the state of Washington, an administrative judge ruled that that state’s Board of Licensing was entitled to close a fish pedicure service on the grounds of public danger. Although popular in China, Japan and Turkey, fish pedicures were ruled to be a health hazard in Washington state as fish could spread disease from client to client. The judge in that case ruled that the classification of a fish as a “tool” was proper because “it is the fish who are delivering the pedicure service by … nibbling on a client’s foot”. She also ruled that fish can carry parasites harmful to humans and that as they couldn’t adequately be sterilised, the service must stop. If that decision about how to interpret the legislation is followed in Arizona, Ms Vong’s business will be sleeping with the fishes.
Gary Slapper’s new book, Weird Cases, is published by Wildy, Simmonds & Hill