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United States of America v. Daniel Chapter One

June 22, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DANIEL CHAPTER ONE, AND JAMES FEIJO, DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This action involves certain dietary supplements that defendants claim can treat, cure, or prevent cancer, inhibit tumors, and ameliorate the adverse effects of radiation and chemotherapy. Pending before the Court is the government's motion for a preliminary injunction. In its motion, the government asks the Court to preliminarily enjoin Daniel Chapter One and James Feijo (the "defendants") from violating the final cease and desist order issued by the Federal Trade Commission (the "FTC") on January 25, 2010 regarding the marketing of these dietary supplements (the "Modified Final Order"). Plaintiff argues that emergency injunctive relief is necessary in order to "prevent continuing harm to individuals suffering from cancer and other tumors." Pl.'s Mot. at 1. Upon consideration of the motion, the response and reply thereto, the applicable law, and the limited record currently before the Court, the Court hereby GRANTS plaintiff's motion.

I. BACKGROUND

This penalty suit arises from an FTC proceeding, in which defendants were charged with violating §§ 5(a) and 12 of the FTC Act by allegedly engaging in deceptive acts and practices with regards to their marketing of certain dietary supplements. See Compl. ¶ 7. Following a trial, an administrative law judge concluded that defendants violated the FTC Act by making unsubstantiated claims that four of the dietary supplements marketed and sold by defendants -- BioShark, 7 Herb Formula, GDU, and BioMixx -- prevented, treated, or cured tumors or cancer. Compl. ¶ 7.*fn1 This decision was appealed to the FTC, who subsequently affirmed it. Compl. ¶ 7.

The FTC issued a Final Order to cease and desist practices on December 24, 2009. Compl. ¶ 7. Soon thereafter, on January 25, 2010, the Commission issued a Modified Final Order, see Pl.'s Ex. A, which made non-substantive modifications to clarify required time periods in the Final Order. Compl. ¶ 7. Among other things, the Modified Final Order prohibits defendants from representing that BioShark, 7 Herb Formula, GDU, or BioMixx (hereinafter, the "covered products") prevent, treat, or cure any type of tumor or cancer without possessing and relying upon competent and reliable scientific evidence that substantiates the representation. Compl. ¶ 8. The Modified Final Order also requires defendants to send a letter to past purchasers of the covered products informing them of the FTC's conclusion that defendants' advertising claims were deceptive because they lacked substantiation. Compl. ¶ 8. The Modified Final Order was served on defendants on February 1, 2010. Compl. ¶ 7.

On February 25, 2010, defendants applied to the FTC for a stay of the Modified Final Order. This request was denied on March 23, 2010.

Defendants also filed an appeal with the United States Court of Appeals for the District of Columbia Circuit contesting the legality and constitutionality of the Modified Final Order. Defendants argued, among other things, that the FTC's Modified Final Order violates defendants' First Amendment rights and free exercise of religion under the Religious Freedom Restoration Act ("RFRA"). After their request for a stay of the Modified Final Order was denied by the FTC, defendants filed an emergency motion for a stay of the Modified Final Order with the D.C. Circuit.

This motion was denied on April 1, 2010. See Daniel Chapter One v. FTC, No. 10-1064 (D.C. Cir. Apr. 1, 2010)

Because defendants failed to obtain a stay, the Modified

Final Order became effective on April 2, 2010. See Compl. ¶ 7; see also 15 U.S.C. § 45(g)(2) ("An order of the Commission to cease and desist shall become final . . . upon the sixtieth day after such order is served, if a petition for review has been duly filed; except that any such order may be stayed, in whole or in part and subject to such conditions as may be appropriate by --

(A) the Commission; (B) an appropriate court of appeals of the United States . . . ; or (C) the Supreme Court, if an applicable petition for certiorari is pending.").

On August 13, 2010, the government filed a complaint in this Court seeking civil penalties and other injunctive relief pursuant to §§ 5(l), 13(b), and 16(a) of the FTC Act. Simultaneous therewith, the government also filed a motion for a preliminary injunction seeking an order enjoining defendants from violating the Modified Final Order. The Court denied this request without prejudice on September 14, 2010, finding that the Court lacked jurisdiction to enforce the Modified Final Order while defendants' action challenging the legality of the Modified Final Order was pending before the D.C. Circuit. See Order at Docket No. 11; see also 15 U.S.C. § 45(d) ("Upon the filing of the record with it, the jurisdiction of the [circuit] court of appeals of the United States to affirm, enforce, modify, or set aside orders of the Commission shall be exclusive.").*fn2 The Court then stayed this action pending resolution of defendants' appeal before the D.C. Circuit. See Order at Docket No. 11.

Following this Court's denial of its motion for a preliminary injunction, the government filed an emergency motion for an order of enforcement pendente lite with the D.C. Circuit. That court granted the government's request on November 22, 2010. See Daniel Chapter One v. FTC, No. 10-1064 (D.C. Cir. Nov. 22, 2010) ("Daniel Chapter One is hereby enjoined to obey forthwith the modified final order of the Federal Trade Commission issued January 25, 2010, in Docket No. 9329, In the Matter of Daniel Chapter One and James Feijo."). In addition, on December 7, 2010, the D.C. Circuit denied defendants' request for a "partial stay of enforcement order pendente lite pending final action by this court and possible review by the U.S. Supreme Court." Daniel Chapter One v. FTC, No. 10-1064 (D.C. Cir. Dec. 7, 2010).

Shortly thereafter, on December 10, 2010, the D.C. Circuit denied defendants' petition for review of the Modified Final Order. That court found, among other things, that "the Commission properly exercised jurisdiction over [Daniel Chapter One]" and that "[Daniel Chapter One]'s arguments based upon the Constitution and the Religious Freedom Restoration Act are wholly without merit." See Daniel Chapter One v. FTC, 405 Fed. Appx. 505, 506 (D.C. Cir. 2010). Defendants then filed a petition for writ of ...


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