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What Has the FTC Got Against Vitamins?

PA also 225
John J. Vecchione
Senior Litigation Counsel

February 10, 2023

Precision Patient Outcomes, Inc. (PPO) and its principal, Margrett Lewis, are being sued in San Francisco by the Federal Trade Commission (FTC) for selling and marketing high-quality dietary supplements and providing consumers with information that the vitamins they contain are thought to strengthen the body’s resistance to disease. NCLA represents PPO and Ms. Lewis in FTC v. PPO. You can read FTC’s Amended Complaint here.

The reason it’s amended is because the first Complaint claimed our clients had sold a product called “COVID Resist.” The problem for FTC is PPO and Ms. Lewis never sold such a product. NCLA complained and, without admitting error, the FTC amended the Complaint. We have since moved to dismiss the Amended Complaint because (1) the FTC is not a properly constituted executive agency and cannot bring suit; (2) no Defendant is even alleged to have sold “Covid Resist,” thus they cannot be held liable because of the First Amendment’s protection of speech for anything said about the dietary supplements; and (3) the Rules of Civil Procedure require a plaintiff, in this case the FTC, to plead deception claims with specificity. That is who, what, when, and where. Here, who was deceived by anything Defendants said is unstated. The Amended Complaint doesn’t even lay out how many violations of the law the agency is alleging.

In the 1990s, Congress passed a law, signed by President Clinton, called the Dietary Supplement Health & Education Act of 1994 (DSHEA). As, of all things, Rolling Stone magazine described it at the time, the legislation that would allow the FDA to do what the FTC attempts to do in FTC v. PPO. Congress refused, and put in protections for vitamin makers, with one lawmaker saying that dietary supplements are used “to prevent disease.” But the FTC did not sue Senator Larry Pressler. Instead, the FTC determined to punish our clients for things like quoting the National Institute for Health and not describing the linked to article the way the FTC would like.

The Act under which the FTC is suing was passed as part of a huge omnibus bill and was aimed at, among other things, stopping false claims for products that would lead to vaccine hesitancy. What heinous vaccine hesitancy does the FTC accuse our client of deceiving the public about? That things like Vitamins C, D, and K provide “a foundation for a healthy immune system, boosting the effectiveness of your body’s natural defense against the virus and aiding the protection provided by the vaccine.” That claim sure doesn’t urge avoidance of vaccines.

The FTC, by filing this case is actually aiding vitamin hesitancy, which as the Cleveland Clinic tells us in the case of Vitamin D deficiency, can have terrible effects on your immune system. What the FTC is doing in this case is very close to what the other agencies of the Government did to shut down information the Government disapproved of during the Covid-19 pandemic. It determines a narrative and then punishes anyone moving away from that narrative, whether or not the statements are true.

Here, Margrett Lewis, who owns a small company making health products (like masks!), enters the vitamin market to provide easy-to-take high-quality vitamin supplements. She sends a letter to the FTC asking for its view of her marketing materials and product, and the agency sends back a bewildering list of companies it had sued or sent warning letters to. She abandons that product and trademarks another. The FTC investigates, not because of any complaint by any consumer, but just because she wrote them a letter and so is on their radar. They then become the de facto “ministry of truth” on what helps the body resist viruses.

The FTC has become a barrier to entry for small businesses as only big firms with plenty of lawyers can insulate themselves. NCLA has helped take away some of the FTC’s longstanding, illegal toys before. Here’s hoping this case does as well.