Complaint Counsel's Post Trial Brief - Federal Trade Commission

Respondents' claims are materal because they contain information concerg the purose,
effcacy, and perormance of the DCO Products that would likely affect a consumer's choice to
purchase these products.
IV. THE FTC is NOT VIOLATING THE RESPONDENTS' FIRST AMENDMENT
RIGHTS
A. The Filg of
the Instant Suit Does Not Infringe Respondents' First
Amendment Rights
Thoughout ths proceeding Respondents have argued that their adverising
representations are constitutionally protected religious and political speech that is immune to the
FTC Act's prohibition agaist unfai and deceptive practices. Respondents fist raised their First
Amendment arguent in their Januar 13, 2009 Motion to Dismiss. The Cour dened
Respondents' Motion to Dismiss in its Februar 2,2009, Order, and stated:
The Complaint contains suffcient allegations that respondents are engagig in
deceptive commercial speech, including allegations that the Respondents promote
and adverise the Challenged Products, that the Challenged products are offered
for sale at not insignficant prices, and that the adverisements refer to specific
products and attbutes. These allegations, and the content of the exhbits to the
Complait, are more than suffcient for a reasonable fact-fider to infer that the
speech proposes a commercial transaction, refers to specific products and is
economically or commercially motivated. Respondents point to no facts that
would dispute such an inference.
Feb. 2 Order at 8 (citing
In re R.J. Reynolds, 1998 WL 490114, *4 (1998)). The Cour explained
that commercial speech - speech proposing a commercial transaction - that is false or misleading
can be suppressed, and that "(t)he more limted protection accorded commercial speech perits
the FTC to act when necessar to challenge false or deceptive adverising." Feb. 2 Order at 7
(citing
In re R.J. Reynolds, 1998 WL 490114, *4 (1998)).
At tral, Respondents failed to adduce any facts to dispute that their representations
constitute commercial speech. The evidence at tral clearly demonstrated that the challenged
32