Judge George Foster rejected the arguments from Clint Bolick of the Goldwater Institute that fish pedicures are different from traditional pedicure practices and they should be regulated differently. Bolick, whose organization filed suit on behalf of Chandler nail salon owner Cindy Vong, said he presented evidence from a British study and the U.S. Centers for Disease Control that there have been no documented cases of disease transmission in the world from fish pedicures.
Vong in 2008 began using a method in which a customer would stick her feet into a tank with Garra Rufa, a carp without teeth, and Chin Chin, a small fish that develops sharp teeth, to allow the fish to exfoliate the feet. The 20-minute treatment cost $30.
Vong’s health protocol included washing the customer’s feet with antibacterial soap before the pedicure and placing the fish in a clean tank. They were kept in tanks in which the water was continuously recycled through a filter system and subject to ultraviolet rays to kill bacteria.
The Arizona Board of Cosmetology shut down the fish pedicure operation because it didn’t comply with sanitation requirements. Vong sued in 2009.
“The rules regarding pedicures did not contemplate the use of fish in pedicures,” Bolick said. “They are actually right, you cannot disinfect a fish and so they are two separate things that should be regulated.”
Bolick said the regulation is excessive.
Foster found that the Board of Cosmetology regulations require that any instrument used for removing dead or living tissue from a client be disinfected or thrown away to prevent the exposure to harmful bacteria and serious diseases such as HIV and Hepatitis.
“There is scientific uncertainty as to the precise nature and probability of risks associated with the fish pedicures and although the record bears no evidence of any reported case of disease or infection by means of a fish pedicure, it cannot be ruled out,” Foster wrote.
Foster found that the board’s prohibition of fish pedicures was not irrational.
Bolick said it will be up to Vong to decide to appeal, but his instinct is to go to a higher court because it is not uncommon for lower court losses to turn into victories at the appellate level.
Vong already has one Court of Appeals ruling in her favor. In April 2011, the Court of Appeals overturned a lower-court dismissal of the lawsuit, giving Vong a chance to try her case. Foster held a two-day bench trial in January.