Since I’ve received a couple negative comments to my post on the Daniel Chapter One case from yesterday, I just want to clarify a couple of things. First, although the Federal Trade Commission clearly believes DCO is running a “bogus cancer cures” scam, the Commission never produced a single customer complaint or any witness who claimed to be the victim of such a scam. The FTC’s entire case at trial consisted of a Commission staff investigator who purchased dietary supplements — which the Commission concedes are perfectly legal products — from DCO’s website and an oncologist, paid by the Commission, who testified that these supplements are not approved treatments for cancer by the Food and Drug Administration.
DCO never claimed their supplements were FDA approved or that their use was supported by any oncologist, including the FTC’s paid expert. DCO, which is organized as a religious nonprofit corporation, has consistently promoted their dietary supplements as part of their “Christian spiritual and physical wellness ministry.” You may say that’s just a cover, but I don’t see how anyone — and certainly not the FTC — can objectively determine which religious messages are false, given that all religions rely on things that cannot be empirically proven.
The FTC’s case at trial rested on the belief that speech regarding the health benefits of any product is per se illegal unless it is supported by an FDA clinical trial. The FTC is thus trying to expand the FDA’s authority, without constitutional or congressional consent, to cover products, like dietary supplements, that are not within the FDA’s congressionally defined jurisdiction.
Finally, I’d cite the language of the FTC’s own motion for a preliminary injunction against DCO, which seeks to censor radio broadcasts, online bulletin boards, and Facebook and Yahoo accounts:
Irreparable harm arises if consumers forego beneficial and effective therapy for untested therapies such as those Defendants promote. Irreparable harm arises when consumers risk their health to potential side effects and harmful interactions between the Products and other therapies. Irreparable harm arises when those who have been previously deceived by Defendants’ representations do not receive corrective information and continue to use the unproven Products Defendants market.
This harm is not theoretical. These representations can be made and accessed at any time on these websites and online forums. Defendants make these representations on their radio show, which airs every Monday through Friday for two hours each day. This irreparable harm is ongoing, and imminent.
The FTC is not trying to stop the sale of a supposedly dangerous product; is is trying to stop people from talking about perfectly legal products. The FTC maintains that allowing free speech constitutes an “irreparable harm” to the public merely because some members of the public might make decisions that the government determines are unwise. And despite the Commission’s claims that the harms are “not theoretical,” the government has yet to produce a single case of a person directly harmed by DCO’s speech.