NM herb company sues FTC for violating free speech

NM herb company sues FTC for violating free speech
By MELANIE DABOVICH 06.27.08, 2:43 PM ET


ALBUQUERQUE, N.M. - The owners of a Taos herb company are suing the
Federal Trade Commission for violating their First Amendment rights in
what their lawyer is calling an unprecedented lawsuit.

Mark and Marianne Hershiser, owners of Native Essence Herb Company,
claim in a lawsuit filed Wednesday in federal court that they have a
right to provide customers information on the historical use of herbs
under free speech. The couple had posted historical information about
herbs on their Web site, along with general product information.

The FTC, however, maintains that claims based on historical or
traditional herbal use should be substantiated by scientific evidence.
The agency's guidelines also state that advertisers should not
suggest, directly or indirectly, that a supplement would provide
benefits to those suffering from diseases unless there's reliable
evidence to substantiate such claims.

The Hershisers argue that the historical information posted on their
Web site came from federal government Web sites concerning herbs and
herbal remedies and they should be allowed to provide that information
for their customers.

The Hershisers said in the lawsuit they believe they have the right to
disseminate information about the historical use of an herb without
"qualification, limitation or restriction." Their goal is to have
clear sanctions that allow companies to use similar information from
government Web sites, according to the complaint.

"We think it's important to give this little company and the herb
industry a clear idea of what they're allowed to do," said Richard
Jaffe, a Houston-based attorney who is representing the couple.

Frank Dorman, spokesman for the FTC, said the commission does not
comment on pending litigation.

Jaffe said the Hershisers are suing to stop the FTC from enforcing the
historical use guideline against their company and others in the
industry. The rules, he said, infringe on their rights.

"No one has ever challenged the FTC (on historical use claims). I
think most people just settle," Jaffe said. "This is about the freedom
of choice and access to information versus the government's attempt to
make decisions for the consumer."

The Native Essence Herb Company sells herbs and herbal products to
retail customers, with the majority of sales made through its Web
site.

The company, which has been in business since 1992, received a letter
in April from the FTC saying its Web site "contained false, misleading
or unsubstantiated information" with respect to several herbs and herb
products, according to the lawsuit.

The lawsuit claims the FTC threatened to file an injunction against
the company even though it had received no consumer complaints. The
agency also sent a stipulated consent agreement stating, among other
things, that it wanted all of the proceeds from the sale of specific
herbs throughout the company's history unless the company could show
it did not have the funds to pay that amount.

Jaffe said the company removed the information from the Web site after
receiving the notice, but the Hershisers decided to challenge the FTC
instead of settling with the agency.

Jaffe said there is no case law that affirms the FTC's right to
enforce the historical use guideline. He added that the government is
being hypocritical in allowing access to information.

"What (the Hershisers) did was put on their Web site information from
studies done around the world. (Mark Hershiser) doesn't make this
stuff up. And a substantial portion of what he was posting is from
federal government Web sites," Jaffe said. "But the argument is that
if the government posts this information on a web site it's OK, but
it's not OK if you're a company trying to sell herbs."


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