A New Mexico herb company says the First Amendment gives it the right to tell customers the historical use of herbs in treating serious diseases. The FTC says this violates its guidelines.
Now the issue is headed to court. Native Essence Herb Company, and its owners Mark and Marianne Hershiser, has sued to strike down the FTC's guidelines.
The lawsuit was filed by Houston attorney Richard A. Jaffe, Esq., a leading health care attorney and the author of "Galileo's Lawyer," an insider's look into the battles between the government and the complementary medicine field.
"Herb sellers should be able to tell consumers that an herb has a long historical use to treat a disease," says Jaffe. "The FTC's prohibition of this kind of truthful information is unreasonable and unconstitutional."
The lawsuit asks the federal court to declare the FTC's guidelines on "historical use claims" for herbal remedies a violation of the First Amendment.
Company owner Hershiser wants to post this historical use information on his website, much of which is taken from federal government websites, and he wants the courts to allow him that right.
"This is a precedent-setting case," Jaffe says. "The issue has never been litigated; it not only affects the Hershisers, but all companies which sell herbal products."
In April 2008, the FTC told the New Mexico herb company that its website contained false, misleading or unsubstantiated claims, including claims that some of the listed herbs have been used for hundreds or thousands of years by Native Americans and other cultures. The FTC received no consumer complaints, yet it threatened to file an injunction action against the company.
Native Essence removed that information about their products from their website. However, the company owners decided not to settle with the FTC, but file suit to overturn the FTC's advertising guidelines and seek a judicial ruling allowing sellers of herbal remedies to provide consumers with information found on government websites and other recognized legitimate sources.