DEBRA A. VALENTINE
General Counsel

DARREN A. BOWIE
KAREN JAGIELSKI
Federal Trade Commission
600 Pennsylvania Ave., N.W.
Room S-4002
Washington, D.C. 20580
(202) 326-2018, -2509 (voice)
(202) 326-3259 (facsimile)

GREGORY A. VEGA
United States Attorney

D. MICHAEL WALTZ
Assistant United States Attorney
California Bar Number 052877
Federal Office Building
880 Front Street
Room 6293
San Diego, CA 92101-8893
(619) 557-7184 (voice)
(619) 557-5004 (facsimile)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

FEDERAL TRADE COMMISSION, Plaintiff,

v.

ALFA SCIENTIFIC DESIGNS, INC., Defendant.

Case No. 00CV

COMPLAINT FOR

PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF

Plaintiff, the Federal Trade Commission ("FTC" or "Commission" ), by its undersigned attorneys, alleges as follows:

1. This is an action under Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C.  53(b), to secure injunctive relief and other equitable relief against defendant for its deceptive acts and practices and false advertising in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C.  45(a) and 52.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction over plaintiff's claim pursuant to 15 U.S.C.  45(a), 52, and 53(b), and 28 U.S.C.  1331, 1337(a) and 1345.

3. Venue in the United States District Court for the Southern District of California is proper under 15 U.S.C.  53(b) and 28 U.S.C.  1391(b) and (c).

THE PARTIES

4. Plaintiff FTC is an independent agency of the United States Government created by statute. 15 U.S.C.  41 - 58. The FTC enforces Sections 5(a) and 12 of the FTC Act, 15 U.S.C.  45(a) and 52, which prohibit, respectively, deceptive acts or practices, and false advertisements for food, drugs, devices, services or cosmetics, in or affecting commerce. The FTC is authorized under Section 13(b) of the FTC Act, 15 U.S.C.  53(b), to initiate federal district court proceedings to enjoin violations of the FTC Act, and to secure such equitable relief as may be appropriate in each case.

5. Defendant Alfa Scientific Designs, Inc. ("Alfa Scientific"), is a California corporation doing business at 11494 Sorrento Valley Road, Suite M, San Diego, California 92121, and with its registered office located at 7454 Park Village Road, San Diego, California 92129. It markets products that putatively test for a variety of medical conditions, including infection with the human immunodeficiency virus ("HIV").

COMMERCE

6. Defendant's course of trade is in or affecting commerce, within the meaning of Section 4 of the FTC Act, 15 U.S.C.  44.

DEFENDANT'S BUSINESS PRACTICES

7. Since at least October 1998, and continuing thereafter, defendant has marketed tests that purportedly test for HIV infection in humans ("HIV tests"), including "Alfa HIV-1/2 Rapid Tests," through the Internet and other means. HIV is the virus that causes acquired immunodeficiency syndrome ("AIDS"), an infectious disease characterized by immune system failure. To date, two strains of HIV have been identified: Type 1 and Type 2.

8. For purposes of Section 12 of the FTC Act, 15 U.S.C. 52, defendant's HIV test constitutes a "device" as "device" is defined in Section 15 of the FTC Act, 15 U.S.C. 55.

9. The Uniform Resource Locator ("URL") of defendant's Internet Web site is "www.alfascientific.com." The Web site, www.alfascientific.com, is a Web site registered to defendant. Orders submitted through the Web site are transmitted to defendant.

10. In the course of marketing its HIV tests, defendant represents that its tests provide accurate results. Defendant's Web site contains the following statements:

  • [The HIV test] is double antigen "sandwich" assay for the detection of HIV-1/2 specific antibodies in human whole blood or serum samples with very high specificity and sensitivity.
  • NEW IMPROVEMENTS IN ONE-STEP RAPID TESTS!! Alfa Scientific Designs, Inc. is launching a new and improved rapid tests (sic) for the early and accurate detection of HIV -I/II . . .
  • Alfa provides more than 70 high quality diagnostic tests in both one-step rapid test and traditional ELISA test formats with consistent, accurate performance.

DEFENDANT'S VIOLATIONS OF THE FTC ACT

11. Defendant has represented, expressly or by implication, that its HIV tests accurately detect the presence of HIV antibodies. In fact, defendant's HIV tests do not accurately detect the presence of HIV antibodies. Therefore, defendant's representation as set forth in this paragraph is false and misleading, and constitutes a deceptive act or practice and false advertising, in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C.  45(a) and 52.

CONSUMER INJURY

12. Defendant's violations of Sections 5(a) and 12 of the FTC Act, 15 U.S.C.  45(a) and 52, have injured and will continue to injure consumers. In addition, defendant has been unjustly enriched as a result of its unlawful practices. Absent injunctive relief by the Court, defendant is likely to continue to injure consumers, reap unjust enrichment, and harm the public interest.

THIS COURT'S POWER TO GRANT RELIEF

13. Section 13(b) of the FTC Act, 15 U.S.C.  53(b), authorizes this Court to issue injunctive and other equitable relief, including consumer redress, disgorgement and restitution, to prevent and remedy any violations of any provision of law enforced by the FTC.

PRAYER FOR RELIEF

WHEREFORE, plaintiff FTC, pursuant to Section 13(b) of the FTC Act, 15 U.S.C.  53(b) and this Court's own equitable powers, requests that this Court:

(1) Enjoin defendant from violating Sections 5(a) and 12 of the FTC Act, 15 U.S.C.   45(a) and 52, including committing such violations in connection with the offer, sale, advertising, or other promotion or distribution of HIV tests;

(2) Award the Commission all preliminary injunctive and ancillary relief that may be necessary to avert the likelihood of consumer injury during the pendency of this action, and to preserve the possibility of effective final relief;

(3) Award such relief as the Court finds necessary to redress injury to consumers resulting from defendant's violations of the FTC Act, including, but not limited to, refund of monies paid, recission of contracts, and disgorgement of unlawfully obtained monies;

(4) Award plaintiff the cost of bringing this action as well as such additional equitable relief as the Court may determine to be just and proper.

Respectfully submitted,

DATED:
DARREN A. BOWIE
KAREN JAGIELSKI
Attorneys for Plaintiff

FEDERAL TRADE COMMISSION