The Supreme Court has reined in the FTC, but more must be done to prevent the agency from silencing natural health benefits. Action Alert!
In a recent ruling, the Supreme Court unanimously found that the FTC has abused its power for decades, skirting the law to illegally seek monetary penalties from companies. The Court has now removed this bludgeon from the FTC’s toolkit, which will reign in this agency’s many overreaches, particularly against the dietary supplement industry—but the agency can still go after doctors for sharing truthful information about natural medicines and COVID-19. We need further action to protect our right to use supplements to stay healthy, naturally, without unwarranted federal interference.
The FTC has been using a section of law (section 13(b) of the FTC Act pertaining to false advertising) to bring alleged violators straight to federal court seeking monetary restitution. So if the FTC alleged a supplement maker was defrauding consumers, the agency would pursue monetary penalties without going through the correct procedures.
The Supreme Court, however, correctly found that section 13(b) does not allow the FTC to directly assess these monetary penalties. The FTC will no longer be able to obtain monetary judgments until it has first gone through an administrative law procedure which, among other things, gives the defendant a chance to respond.
Note that this is a separate issue from our recent reporting regarding the COVID-19 Consumer Protection Act, which was rushed through Congress right before Christmas, that specifically allows the FTC to assess civil penalties against those who “deceptively” market COVID-19 treatments during a declared public health emergency.
Over the past two decades, the majority of FTC false advertising actions against dietary supplement and food advertisers have resulted in settlements. In many cases, these settlements have been leveraged using 13(b); the agency essentially says, pay us or we’ll see you in federal court. The commission has obtained $11.2 billion from companies over the last five years through Section 13(b) cases, many of which involve supplement companies.
The FTC has repeatedly attacked companies in the natural health space in an attempt to clamp down on free speech, alleging marketing and advertising violations of the FTC Act. The agency has gone after bad actors who break the law, but also companies making truthful claims backed up by science. Recall that the agency went after Pom Wonderful, the pomegranate juice company, for advertising the health benefits of its product. The $35 million that Pom spent on studies to back up its claims weren’t enough for this rogue agency—the FTC wanted two randomized controlled trials (RCTs), a drug standard, to substantiate health advertising claims. The courts rejected the two RCT standard, but said one RCT could be required.
To recap why RCTs are an inappropriate standard for supplement companies: supplements, being natural, cannot be strongly patented, unlike pharmaceutical drugs. Because of the patent, it is feasible for drug companies to pay huge sums to run RCTs and get FDA approval. Since natural products are not strongly patentable, nobody can afford to run RCTs and get the FDA (or FTC) approval that is required to make a “disease” claim.
It is proper that the Supreme Court has checked the abuses of this agency. This action is a step in the right direction, but ANH is working to fully permit food and supplements to share reputable peer-reviewed studies that could help benefit Americans’ health. The recent attacks against respected natural health expert Joseph Mercola, DO, that have resulted in the removal of truthful information from his site about how supplements like vitamin C, vitamin D, and quercetin can help with COVID-19 underscores the urgent need for these reforms. Currently, only FDA-approved drugs can share information regarding their benefits in treating or preventing disease; our legislation allows supplements to cite respected studies describing their benefits. This will level the playing field and allow Americans to better access information to support their health with affordable, safe, and effective natural medicines.
Action Alert! Write to Congress and urge them to support legislation that allows the free flow of information about supplements. Please send your message immediately.