793 F. Supp. 2d 157
D.D.C.2011Background
- FTC charged defendants with deceptive marketing of dietary supplements BioShark, 7 Herb Formula, GDU, BioMixx.
- Modified Final Order (Jan 25, 2010) barred false cancer-related claims and required corrective letters to past purchasers.
- Defendants sought stays; FTC stay denied; Modified Final Order became final April 2, 2010.
- Government filed penalty and enforcement action in DC District Court on Aug 13, 2010; Court previously stayed proceedings.
- DC Circuit enforcement pendente lite ordered defendants to obey the Modified Final Order; Supreme Court petition denied.
- Court now grants government’s motion for a preliminary injunction to enforce the Modified Final Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim relief is warranted under § 53(b). | Likelihood of success and public interest weigh in favor. | Court should defer pending circuit enforcement issues. | Preliminary injunction granted |
| Whether defendants violated Part V.B of the Modified Final Order. | Letters to purchasers were not sent; violation established. | Not addressed in opposition; no substantive defense raised. | Likely violation established |
| Whether defendants violated Part II by using endorsements. | Endorsements and representations on radio and online were improper. | Defense not asserted; no contrary argument presented. | Likely violation established |
Key Cases Cited
- FTC v. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001) (public-interest standard for FTC injunctions)
- FTC v. Whole Foods Mkt., 548 F.3d 1028 (D.C. Cir. 2008) (sliding-scale approach; likelihood of success weighed against equities)
- Weyerhaeuser Co., 665 F.2d 1072 (D.C. Cir. 1981) (traditional four-factor framework limited for FTC actions)
- Morton Salt Co., 334 U.S. 37 (U.S. 1948) (agency enforcement authority and standard for order violations)
- H.M. Prince Textiles, Inc., 262 F. Supp. 383 (S.D.N.Y. 1966) (government need prove only violation of a final order in penalty actions)
- Ark. Dairy Coop. Ass'n v. United States Dep't of Agric., 573 F.3d 815 (D.C. Cir. 2009) (sliding-scale framework; public-interest considerations)