Xlear v. FTC

Washington, DC, October 21, 2024 - Last week, Citizens for Health (CFH) and the National Health Federation (NHF), jointly filed an Amici Curiae brief in United States v. Xlear, a pending Federal Trade Commission (FTC) enforcement action in the United States District Court for the Central Division of Utah. 

 

The amici brief, also called a Friends-of-the-Court brief, was filed in support of a motion by Xlear, Inc. (the corporate Defendant) asking the Court to dismiss the complaint, citing the Supreme Court of the United States’ recent decision in Loper Bright Enterprises v. Raimondo. 

 

FTC Overreach – About the Amici Filing

In 2021, the FTC sued Xlear, alleging the Defendants violated the FTC’s COVID-19 Consumer Protection Act by making statements about the use of Xlear’s saline nasal sprays as an effective way to prevent and treat COVID-19 without adequate substantiation in the form of randomized controlled trials (RCTs).  

 

However, substantiation is not referenced, let alone required, in the FTC’s COVID-19 Act. Under the Supreme Court’s recent Loper decision, agencies like the FTC are limited to implementing the laws as written by Congress and cannot establish extra requirements without Congressional authority.-judicial mandates even when portions of the act are vague and ambiguous. We believe the FTC Act, as written, lacks such authority clarity, which means the federal agency did not have statutory authority to sue Xlear for failure to conduct clinical trials. 

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