Complaint Counsel's Post Trial Brief - Federal Trade Commission

effectiveness ofGDU, BioMixx, Bio*Shark, and 7 Herb Formula in the prevention, treatment, or
cure of cancer. CCPF ~ 351. LaMont, "(do(es)n't think that 7 Herb Formula is going to cure
cancer." CCPF ~ 422. She also testified that "(i)t would be a stretch to suggest that (the 7 Herb
Formula) is on its own going to be effective in treating cancer" and that "(i)t would be a stretch
for (her) that (7 Herb Formula) is a solution to cancer." CCPF ~~ 426,428. She would have a
concern if7 Herb Formula was adverised as a cancer solution. CCPF ~ 430.
C. Respondents' Advertsing Representations That the DCO Products Prevent,
Treat, or Cure Cancer Are Material
"A 'materal' misrepresentation is one that involves information that is important to
consumers, and that is therefore likely to affect a consumer's choice of or conduct regarding a
product. Proof of actual consumer injur is not required." Kraft, Inc., 114 F.T.C. 40, 1991 FTC
LEXIS 38, *38 (1991). Cours have interreted the FTC Deception Policy Statement to
"presume() materality for express clais and claims that signficantly involve health, safety, or
other issues that would concer reasonable consumer(s)." QT, Inc., 448 F. Supp. 2d, at 965-66
(citing Kraft, Inc., 970 F.2d at 322); see also FTC v. Clifdale Assocs., 103 F.T.C. at 176-84
(1984) (clais involving "health, safety, or other areas with which the reasonable consumer
would be concered, (such as) . . . the purose, safety, effcacy, or cost of the product. . . (or) its
durability, perormance, waranties or quality are materal as a matter oflaw). In addition, even
implied clais that are "so unambiguous and repetitive that they were clearly intended by the
adveriser to make the alleged claims. . . can be presumed material." FTC v. Bronson Partners,
564 F. Supp. 2d at 135-36.
In this case, Respondents' serous health clais were both express and so strongly
implied as to be virtally express that they should be presumed materal. Moreover,
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