Why Tattoo Artists Don’t Need to Be Doctors: A History of Safety Regulations in Tattooing

In the United States, we typically don’t associate tattooing with medicine — these practices appear more intertwined in other countries. For example, in South Korea, a 1992 Supreme Court opinion interpreted the term “medical practice” to encompass tattooing, effectively prohibiting anyone except doctors from giving tattoos. A legal distinction between tattoos and medicine only emerged last November, when the country’s legislature passed a law that permitted tattooing by non-medical professionals for the first time in more than 30 years.

Yet, like in South Korea, laws that limit the practice of tattooing to medical professionals are a part of recent U.S. history. This might be surprising, as tattooing has boomed into an industry of its own: according to the Pew Research Center, 32 percent of all Americans had at least one tattoo in 2023. But this blog post will explain the downfall of past tattoo restrictions related to medicine and explore persisting issues in modern tattoo regulation.

Past Tattoo Restrictions and the Tension Between Constitutional Rights and Public Health

In the 1966 case Grossman v. Baumgartner, co-owners of a New York City tattoo parlor mounted one of the first legal challenges to a tattoo restriction. At the time, NYC’s Health Code prohibited tattooing unless it was for medical purposes by a licensed medical professional. The plaintiffs argued that this provision was arbitrary and therefore unconstitutional.

But the city’s health department maintained that the policy was reasonable for public health reasons, presenting evidence that multiple hepatitis cases had been linked to tattooing. It even contended that mere regulation was not enough; only an outright ban could prevent the disease because monitoring tattoo parlors to ensure proper sterilization was a “practical impossibility.” Convinced by this argument, the highest court in New York concluded that the city’s tattoo restriction had a rational basis and ultimately upheld the law.

Although the plaintiffs in Grossman failed, a different kind of constitutional challenge began succeeding. Namely, courts started to recognize tattooing as a protected First Amendment activity, making unduly broad tattoo restrictions unconstitutional.

For instance, Massachusetts had a law that criminalized tattooing by non-medical professionals, but in 2000, a state court struck it down for violating the First Amendment. The court concluded that because the restriction had created a risky, underground tattoo industry, legalizing and regulating the practice would better advance the state’s interest in public health.

At the federal level, a 2010 case called Anderson v. City of Hermosa Beach spelled the end of tattoo restrictions. In Anderson, the Ninth Circuit held that both the process of tattooing and tattoos themselves are protected under the First Amendment. Today, no state limits tattooing to medical professionals; many regulate the safety of tattoo businesses through licensing and supervision instead.

What Innovation and Industry Changes Mean for Tattoo Regulation

The proliferation of tattooing has given rise to new risks and innovation in the practice. As a result, tattoo regulation remains a moving target.

For example, when Grossman was decided 60 years ago, courts and regulators were primarily concerned about individual tattoo parlors’ sterilization practices. But as sterilization standards have become more widely enforced, scientific studies have identified microbial contamination of tattoo ink at the manufacturer and distributor level as a bigger problem.

After recalling multiple tattoo ink products, the Food and Drug Administration (FDA) issued guidance to help manufacturers and distributors prevent against contamination last year. However, the FDA classifies tattoo ink as a “cosmetic” product, meaning that the FDA only scrutinizes products that manufacturers voluntarily report to the agency. In response to this weak regulatory approach, health law scholars have argued that the FDA should reclassify tattoo ink as an “injectable cosmetic” like Botox, which would allow the agency to more closely monitor products in the market. 

Regulation of the tattoo industry has also responded to innovations in the practice, such as laser tattoo removal. Because laser removal does not enjoy the First Amendment protections of tattooing itself, states may restrict the procedure to medical professionals. These restrictions vary widely: most stringently, New Jersey only allows licensed physicians to perform laser removals, while Virginia allows medical professionals to delegate the procedure to trained, non-medical professionals.

Although public health concerns will always influence tattoo regulation, striking the right balance between accessibility to tattoos and consumer safety has even further implications. Under South Korea’s tattoo restriction, some artists who were not medical professionals (and therefore working illegally) reported that they would stay silent if they ever faced abuse from clients because they feared prosecution.

As these cases show, good governance of risky but persisting practices like tattooing probably requires direct input from the communities engaged in those practices.