Licensing Would Reduce Access to Lactation Support Services

For as long as women have been breastfeeding, they have been receiving support and education from family members and peers. In recent decades, lactation support professionals have provided formal support—directly and through peer-to-peer support programs.

Formal lactation support professions emerged when entrepreneurial mothers with breastfeeding experience noticed that pediatricians and other health care providers often lacked the confidence and training necessary to support nursing mothers. These entrepreneurs expanded and improved the quality of lactation support services through voluntary, private-sector programs that train lactation support professionals and set standards for certifying them at various levels. These private certification organizations regularly update these standards as circumstances warrant.

Some members of these professions have sought to have the government create barriers to new lactation support professionals. They have proposed laws that would require new entrants to obtain governmental permission (i.e., a license) before helping mothers. Under government licensing, the government would control what categories of lactation support professionals could exist (including the creation of new categories), the training that each category of professional must receive, and the services those professionals could provide.

On balance, licensure would harm new mothers, their babies, and the experienced mothers who seek to help them. It would reduce opportunities for lactation support professionals, reduce the supply of lactation support services, increase prices for those services, and impede innovation in the creation of new professions and standards.

Evidence suggests breastfeeding protects babies against short- and long-term health problems.² The American Academy of Pediatrics, the World Health Organization, and the United Nations Children’s Fund all recommend exclusive breastfeeding during a baby’s first six months and supplemental breastfeeding until a child reaches age two or older.³

Breastfeeding rates are lower than these organizations recommend and are lower still among certain racial and ethnic minorities.⁴ Rates of breastfeeding may also be lower than they would otherwise be if mothers had more information or support. In 2011, the surgeon general of the United States identified several factors contributing to low breastfeeding rates, including lack of knowledge, social norms, poor family and social support, lactation problems (e.g., insufficient milk supply), and health care providers giving “low priority … to support for breastfeeding and education about it.”⁵ In 2013, the Centers for Disease Control and Prevention concluded that “continued professional support may be necessary to address these challenges and help mothers meet their desired breastfeeding duration.”⁶ A 2020 study concluded that many physicians, including pediatricians and obstetrician-gynecologists, lack the confidence or skills to provide lactation advice and support.⁷

Recognizing a need for lactation support services, entrepreneurial mothers created the lactation support professions. They designed training programs and certification processes for these professions. Current evidence suggests that lactation support services from peers and professionals at all levels of training—lactation consultants, lactation counselors, and peer counselors—increase breastfeeding initiation rates and exclusive breastfeeding rates. Not all mothers can breastfeed, but lactation support professionals can help.⁸

In recent years, certain members of the lactation support professions have lobbied for states to erect barriers to new clinicians seeking to enter these professions.⁹ Such interventions would reduce the number of people in the profession without improving the quality of services provided.

As in other professions, licensing would produce cartelization, allowing incumbent lactation support professionals to use those regulations to protect their incomes by limiting newcomers from entering the field. Licensing would harm mothers and babies in rural and underserved areas the most.

The first formal community support group providing peer-to-peer support and education to nursing mothers was La Leche League International (LLL). A group of mothers in Chicago founded LLL in 1956 to equip mothers with education, encouragement, and mother-to-mother support to promote breastfeeding.¹⁰ LLL requires leaders to have breastfed for at least one year, to have previous involvement with LLL, and to obtain accreditation from LLL’s Leader Accreditation Department.¹¹ Community programs often support low-income women and those who do not require the greater expertise of a lactation support professional.

In the 1970s, concerned and enterprising mothers established lactation support professions to meet the growing demand for more specialized breastfeeding care and support that community support groups and primary care providers could not provide.¹² These women created formal training and quality certification for multiple categories of lactation support professionals.

In 1985, with a loan from LLL, lactation support professionals established the International Board of Lactation Consultant Examiners (IBLCE) “in response to the need for standards in the emerging profession of lactation consulting.” The IBLCE implemented the first private, voluntary certification for lactation support professionals and created the title of International Board Certified Lactation Consultant (IBCLC).¹³ As of 2020, there were over 18,000 IBCLCs in the United States and more than 32,000 worldwide (Table 1).¹⁴

Those IBCLCs established their own professional association, the International Lactation Consultant Association (ILCA). The ILCA admits members of other lactation support professions. In 2008, the IBLCE and the ILCA established the Lactation Education Approval and Accreditation Review Committee to formalize the curriculum and examination processes.¹⁵

Other private, voluntary organizations arose during this same period. Mothers established the Academy of Lactation Policy and Practice in 1999 and subsequently developed three certifications:

• Certified Lactation Counselor;
• Advanced Lactation Consultant; and
• Advanced Nurse Lactation Consultant.¹⁶

Each of these certifications has different requirements, scopes of practice, and purposes—as do all other lactation support certifications (see Table A1 in the Appendix).

Lactation support professions and professional credentialing organizations developed the same way specialties and credentialing organizations arise in the medical and dental professions. A generalist profession evolves into specialties and subspecialties as the extent of the market expands and technology advances. Practitioners create certification organizations to educate, credential practitioners, and develop standards of practice in their respective specialties.

Some incumbent providers have taken the position that “the depiction of equivalency between IBCLCs and [non-IBCLC] counselors/​educators poses a significant risk to the public.”¹⁷ They cite no evidence for that claim yet recommend that states prohibit lactation support professionals from advertising themselves as “lactation consultants” unless they receive IBCLE certification. Lactation support professionals could continue to provide the same services they currently do, but states would create a barrier to professionals advertising themselves as lactation consultants and grant the IBLCE a monopoly on helping them overcome that barrier.¹⁸

As of November 2023, four states have enacted laws that prevent lactation service providers from advertising themselves as lactation consultants unless they obtain an IBCLC certification. In 2014, Rhode Island enacted legislation prohibiting anyone but IBCLCs from advertising themselves as lactation consultants.¹⁹ In 2017 and 2018, respectively, the New Mexico and Oregon state legislatures passed almost identical legislation.²⁰ In 2018, Georgia went so far as to impose compulsory licensing. The state barred anyone from providing lactation support services without IBCLC certification.²¹

Some lactation consultants support licensing because the federal government effectively subsidizes it. Federal law requires Medicaid and insurance companies to pay for breastfeeding support, but only if licensed professionals perform these services. In effect, Congress encourages lactation support professionals to agitate for licensing by offering subsidies if they convince state lawmakers to restrict entry into the profession. As Jaimie Cavanaugh of the Institute for Justice, a public-interest law firm, has noted, licensure requirements would “put hundreds of highly qualified lactation [support professionals] … out of business [and] dramatically reduce breastfeeding support statewide.”²²

In fact, in 2013, the Georgia Occupational Regulation Review Council (GORRC) reviewed proposed legislation that would have provided, “no person without a license as a lactation consultant issued pursuant to this chapter shall use the title ‘lactation consultant,’ ‘lactation specialist,’ breastfeeding consultant,’ or ‘breastfeeding specialist,’ or practice lactation care and services.” The GORRC unanimously recommended against the legislation, stating it could find no substantive evidence of harm to the public due to the absence of regulation. The GORRC expressed concern that a license requirement would diminish access to lactation care.

Although it was enacted, Georgia’s licensing law never went into effect. The Institute for Justice challenged the law on behalf of Reaching Our Sisters Everywhere, a nonprofit organization that provides breastfeeding support in minority communities.²³ In May 2023, the Supreme Court of Georgia struck down the licensing law as unconstitutional because it violated Georgians’ constitutionally protected right to make an honest living.²⁴

Other states have considered and rejected legislation requiring lactation consultants to obtain a government license. Lawmakers in Massachusetts, Minnesota, Mississippi, New Jersey, New York, Oklahoma, Pennsylvania, Tennessee, and Texas have introduced similar bills requiring lactation consultants to obtain a government license.²⁵ Those bills have yet to pass.

The Washington State Department of Health sunrise review of proposed legislation to license lactation consultants found the legislation was unnecessary:

The report continued:

The department called the proposal “costly and unnecessary.”²⁸

Nor does it appear that regulation increases breastfeeding rates. No pattern of improving six-month exclusive breastfeeding rates has yet emerged among states that have enacted laws preventing lactation service providers from referring to themselves as lactation consultants (Table 1).

Even though New Mexico, Oregon, and Rhode Island laws permit people to provide lactation support services without a license, these laws are still harmful. The laws give IBCLCs an unfair advantage in the marketplace. Furthermore, they may be a prelude to compulsory licensing.

The added costs of obtaining a license may reduce access to lactation support, particularly in rural or medically underserved areas. Licensing would require lactation support professionals to meet government-prescribed educational and training milestones. Research shows that excessively steep licensing requirements restrict the supply of practitioners and create service bottlenecks.²⁹

Licensing might also cause breastfeeding mothers to pay more for lactation support. Supply restrictions, along with the associated fees and educational expenses required to obtain a license, increase consumer prices.

Licensing presents an opportunity for rent-seeking by incumbent clinicians.³⁰ The licensing process encourages established incumbents to influence lawmakers to retain or expand strict licensing requirements. This, in turn, raises the barriers for new competitors to enter the field, making it more challenging and costly and allowing incumbents to charge higher prices.³¹ Research indicates such limitations on nurse practitioners offering pediatric services may increase parents’ well-child examination costs by 3–16 percent.³²

Licensing laws prevent innovation. They reward standardization and compliance and remove incentives for private certification organizations to experiment with different ways to train new professionals and expand access to services.

Ideally, states should repeal all health professional licensing laws. Licensing laws do little to protect the public from poor quality care but serve as barriers to new entrants and innovations in the health care professions.³³

If repeal is politically infeasible, states could accredit third-party certification organizations to perform licensing boards’ functions.³⁴ A voluntary, alternative pathway involving third-party certification could coexist with state licensing schemes and gradually replace them.³⁵ One proposal calls for private certifying organizations to register with the state to certify individuals as competent to practice an occupation or profession if they meet the certifying organizations’ criteria. Much like in the lactation consultant professions, numerous organizations vie to certify competency across the various professions and occupations. States would allow multiple certifying organizations to vet members of the same occupation or profession. Those private certifying organizations would compete to provide consumers with high-quality credentialing services. Such an alternative pathway would complement the existing licensing system.

If licensing reform is not feasible, states should, at an absolute minimum, refrain from imposing new barriers to entry into the health professions. New Mexico, Oregon, and Rhode Island should remove the obstacles they have placed in the way of mothers and other nursing women who seek advice and support from various lactation support professionals.

Breastfeeding can provide many benefits, but it can be difficult for some mothers. Enterprising and creative mothers responded to that need by pioneering lactation support professions. They created professional education and training programs and established practice standards. State governments played no role in the process.

On net, requiring professionals to obtain a government license before they provide lactation support services would harm both those professionals and the mothers and babies those regulations purport to help. Licensing would increase barriers to entry into those professions, reduce access to lactation support services, and block innovative ways of supporting new mothers.

States should avoid erecting barriers that impede access to lactation support services. In practice, with only a little more than half of infants breastfeeding in the United States, and only a quarter breastfeeding exclusively at six months, such regulations could prove especially pernicious.