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by Randal Shaheen, Amy Ralph Mudge & George Langendorf!

 

Latest Lanham Act Case to Bring Down a National Ad Campaign -
by Randall K. Miller!

 

 

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BULLETIN #664

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SAMPLE ISSUE: Article #7:

FTC HALTS ALLEGEDLY BOGUS CANCER CURES

 

 

FTC CHARGED COMPANIES MADE UNSUPPORTED CLAIMS

 

FTC has brought to a halt two marketers of allegedly bogus cancer cures that were targeted during Operation False Cures, a law enforcement sweep announced last fall. FTC charged the companies in the sweep with making unsupported claims that their products treated, cured or prevented one or more types of cancer. With these two cases concluded, all but two of the 11 cases brought during the sweep have now been resolved.

 

Mary T. Spohn, Individually and Doing Business as Herbs for Cancer

 

FTC's Administrative Complaint

 

FTC's administrative complaint alleged that Spohn marketed Chinese herbal teas that purportedly treated and cured many different types of cancer. After Spohn failed to respond to FTC's administrative complaint, the Administrative Law Judge (ALJ) issued an order on default judgment and initial decision against her on November 5, 2008. After Spohn failed to appeal, the ALJ's order and initial decision became the Commission's final order and decision. The final FTC Order bars false and deceptive claims that the products treat or cure cancer or have other health benefits.

 

Advertisements

 

According to Spohn's advertisements, 16 of the teas her company sold were formulated to fight 16 different types of cancer. A 17th type of tea was represented as a "special formula" for "cancers not on our list."

 

False and Deceptive Claims Alleged

 

FTC's administrative complaint charged that Spohn, individually and doing business as Herbs for Cancer, violated the FTC Act by making false and deceptive claims that these formulations effectively treat and cure cancer, and by falsely claiming that some of them are scientifically proven to work. Also, the Food and Drug Administration (FDA) sent Spohn a warning letter.

 

FTC's Order

 

FTC's Order bars Spohn from–

 

• representing that any dietary supplement, food, drug, device, or health-related service or program is effective in treating or curing any type of cancer, unless the representation is true, non-misleading, and supported by competent and reliable scientific evidence. • making any representation about the benefits, performance, efficacy, safety, or side effects of any dietary supplement, food, drug, device, or health-related service or program, unless the representation is true, non-misleading, and supported by competent and reliable scientific evidence. • misrepresenting the information in any test or study.

 

The Order requires Spohn to give FTC a contact list of all consumers who bought any Cancer Tea Formula from Herbs for Cancer on or after January 1, 2005. Additionally, the Order requires Spohn to notify these consumers alerting them to the FTC findings, and bars her from selling or otherwise disclosing the names, or a variety of other types of identifying information, of any of the consumers on the list.

 

Native Essence Herb Company

 

FTC's Administrative Complaint

 

According to FTC's administrative complaint, Native Essence Herb Company and its principals violated federal law by making unsubstantiated claims that certain herbal blends, Maitake mushroom extracts, and the herb chaparral were effective for treating and curing a variety of cancers, eliminating or shrinking tumors, and preventing breast cancer. FTC's complaint also alleged that the company falsely claimed scientific studies had proven that some of the challenged products were effective.

 

Proposed Settlement

 

According to the proposed settlement, Native Essence Herb Company and its principals, Mark J. and Marianne Hershiser, are barred from representing that their products prevent, treat, or cure any type of cancer unless the representation is true, non-misleading, and supported by competent and reliable scientific evidence.

 

The proposed settlement order also requires respondents to notify all customers who have bought their products since January 1, 2005 that they should consult with a medical professional before using any alternative or herbal product to treat cancer, and that no reliable scientific studies exist to support claims that these products are effective in treating or curing cancer. Finally, the respondents are barred from making representations about any health-related products without competent and reliable scientific evidence.

 

FTC's Vote

 

FTC's vote to accept the proposed consent agreement was 4-0.

 

NOTE: A consent agreement is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of $16,000.

 

LAWYER's REFERENCE SERVICE

 

Mary T. Spohn, individually and doing business as Herbs for Cancer, FTC File No. 082 3123, FTC Dkt. No. 9331, April 4, 2009, 2010.

 

Native Essence Herb Company, et al., FTC File No. 082 3115, FTC Dkt. No. 9328, April 4, 2009, 2010.

 

# # #

 

Volume XXIX
Issue 8
April 20, 2009, 2010
Pages 27-28

 

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Advertising Compliance Service is a REFERENCE COMPENDIUM of JLCom Publishing Co., L.L.C.

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NOTICE: This publication is not intended to provide legal advice. Persons who need legal services should contact a duly licensed professional.

 

© Copyright 2009-2011-2012 JLCom Publishing Co., L.L.C. All rights reserved.

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