The Supreme Court will not consider herbal supplement marketer Daniel Chapter One's argument that the right to freedom of religion allows the firm to claim its products cure cancer.

The high court May 23 declined to hear DCO's appeal in the firm's ongoing battle with the Federal Trade Commission. The decision was among those the court made, following May 19 discussions, on whether to accept cases appealed from lower courts.

DCO, a Providence, R.I., business that includes a home-based church run by owners James Feijo and his wife Trish Feijo, turned to the Supreme Court after a lower court upheld FTC's order that the firm made misleading and unsubstantiated claims, including curing cancer, for its shark cartilage and herbal products.

DCO argued that FTC overstepped its legal authority with its enforcement action, which required the firm to notify customers it did not have sufficient evidence to support the claim ("FTC affirms cancer cures case ruling," "The Tan Sheet" Jan. 4, 2010, In Brief).

In its April 18 petition for a writ of certiorari, DCO asked the court to consider whether FTC has jurisdiction over "a church and religious ministry selling herbal and natural dietary products to its parishioners as part of a faith-based program."

DCO requested the court consider whether FTC may require a church and religious ministries to support its claims with competent and reliable scientific evidence or to send its customers a letter "with a message attributed to the FTC which contradicts the beliefs of the ministry."

DCO argued that not only does the FTC Act not allow the agency to take those actions, but the act cannot trump First Amendment protections of freedom of religion.

FTC waived its right to respond to the petition.

Firm Remains Resolute

After the court's decision, DCO maintained that its product claims are part of its faith-based program, saying it believes God will "take up our case one day and render righteous judgment."

Daniel Chapter One argued, in part, that the FTC Act cannot trump First Amendment protections of freedom of religion.

The firm explained on its website that it could have avoided fines by distributing a letter to customers, as FTC ordered, refuting the cancer cure claims. However, to "sign such a letter would be to bow to Satan himself, through the religion of scientism," DCO said.

The U.S. Justice Foundation and the Conservative Legal Defense and Education Fund filed a brief in support of DCO, as did the Foundation for Health Choice and Citizens for Health.

The fight stems from a September 2008 FTC enforcement sweep against supplement firms that claimed their products cure cancer, including DCO for its shark cartilage and herbal products. Other firms identified in the sweep have complied with FTC (Also see "Cancer Claims Continue Attracting Federal Enforcement Actions" - Pink Sheet, 22 September, 2008.).

The Department of Justice in April filed a lawsuit seeking civil penalties against DCO and James Feijo for violating the FTC consent agreement, specifically the requirements that the firm notify consumers of the consent agreement and stop making cancer cure claims on its website and daily radio show (Also see "In Brief" - Pink Sheet, 4 April, 2011., In Brief).

The high court's decision against considering DCO's appeal compels the firm to comply with the consent agreement.

By Carolyn B. Phenicie

Herbal Firm Denied Supreme Court Hearing Over Cancer Claim

More from Archive

More from Pink Sheet