Late last month, Lindsey Duncan, through his companies Genesis Today, Inc. and Pure Health, LLC, manufacturers of a green coffee bean extract, agreed to pay the FTC $9 million to settle charges that the manufacturer deceptively advertised weight loss benefits associated with its products. The FTC’s complaint alleges that the claims made by the defendants, including those claims made on shows like “Dr. Oz” and “The View” by Mr. Duncan, were deceptive, unsubstantiated, and based on a severely flawed study. While the complaint was supported by a majority of the commission, two out of the five FTC commissioners dissented. Commissioners Maureen Ohlhausen and Joshua Wright wrote in their dissent that some of the statements were non-commercial in nature because Mr. Duncan never proposed a commercial transaction on screen and did not pay to appear on Dr. Oz’s show. The dissenting commissioners also warned that suppressing all speech about a potential public concern just because the speech is allegedly unreliable and/or unproven would have a chilling effect, and would “far exceed the government’s proper role in regulating commercial speech.”
Although the FTC’s case against the weight loss supplement companies was in the fledgling stages defendants decided to settle instead of moving to dismiss all or at least part of the claims on similar grounds to those offered by the dissenting commissioners. As a result, we may never know whether the FTC violated the First Amendment by improperly including sales attributed to protected non-commercial speech.