| WILLIAM E. KOVACIC General Counsel JAMES R. GOLDER Local Counsel: IN THE UNITED STATES DISTRICT COURT
Plaintiff, the Federal Trade Commission ("FTC" or "Commission"), by its undersigned attorneys, alleges: 1. The FTC brings this action under Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), to secure a permanent injunction and other equitable relief against Defendants for their deceptive acts or practices and false advertisements for foods, drugs, devices, services or cosmetics 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 this matter 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 this District is proper under 15 U.S.C. § 53(b) and 28 U.S.C. § 1391(b) and (c). PLAINTIFF 4. Plaintiff, the 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 and practices, and false advertisements for food, drugs, devices, cosmetics, or services, in or affecting commerce. The FTC may initiate federal district court proceedings to enjoin violations of the FTC Act and to secure such equitable relief as is appropriate in each case. 15 U.S.C. § 53(b). DEFENDANTS 5. Defendant Christopher Enterprises, Inc. ("Christopher Enterprises") is a Utah corporation with its principal place of business at 1195 Spring Creek Place, Springville, UT 84663. Christopher Enterprises also does business under the name The Herb Shop Connection. Christopher Enterprises transacts or has transacted business in the District of Utah. 6. Defendant Norman Bacalla is president of Christopher Enterprises. Individually, or in concert with others, he directs, controls, formulates, or participates in the acts and practices of Christopher Enterprises, including the acts and practices complained of below. He resides and transacts or has transacted business in the District of Utah. 7. Defendant Ruth Christopher Bacalla is vice-president of Christopher Enterprises. Individually, or in concert with others, she directs, controls, formulates, or participates in the acts and practices of Christopher Enterprises, including the acts and practices complained of below. She resides and transacts or has transacted business in the District of Utah. COMMERCE 8. At all times material to this complaint, Defendants' course of business, including the acts and practices alleged herein, has been and is in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. § 44. DEFENDANTS' COURSE OF CONDUCT 9. Since at least 1998, and continuing thereafter, Defendants have marketed herbal products that purportedly treat and alleviate the symptoms of various diseases and health conditions. 10. Defendants market an herb commonly known as comfrey and products containing comfrey (referred to collectively herein as "comfrey products"). 11. Defendants advertise, promote, offer for sale, sell, and distribute comfrey products to consumers throughout the United States via the Internet, by mail and telephone order, and through distributors, retail stores, and health care practitioners, among other means. 12. Defendants' advertisements and promotional materials about comfrey products sold for internal consumption, include, among others, the following statements:
13. Defendants sell bulk comfrey root and leaves for prices ranging from $12.95 to $14.95 per pound. Defendants sell BF&C Formula to consumers for $9.95 (100 capsules); Calc-Tea for $10.95 (100 capsules); Comfrey-Mullein-Garlic for $12.95 (4 oz.); Resp-Free for $10.95 (2 oz.); X-Ceptic for $15.95 (1 oz.); VB Herbal Bolus for $16.95 (4 oz.); and Yellow Dock Combination for $9.95 (4 oz.). 14. Consumers pay Defendants for their purchases of comfrey products by check, money order, or credit card. DEFENDANTS' VIOLATIONS OF SECTIONS 5(a) AND 12 OF THE FTC ACT 15. As set forth below, Defendants have violated Sections 5(a) and 12 of the FTC Act, 15 U.S.C. § § 45(a) and 52, in connection with the offer, sale, advertising, promotion or distribution of comfrey products. 16. The comfrey products offered and sold for internal and external use by Defendants are either "foods" or "drugs" for purposes of Sections 12 and 15 of the FTC Act, 15 U.S.C. §§ 52 and 55. Safety Representations 17. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12, above, Defendants have represented, expressly or by implication, that their comfrey products are safe for consumers, including pregnant women, infants, and children, when taken internally, as oral preparations, as suppositories, and applied to open wounds. 18. In truth and fact, comfrey and products containing comfrey are not safe for consumers, including pregnant women, infants, and children, when taken internally, as oral preparations, as suppositories, or applied to open wounds. Comfrey contains pyrrolizidine alkaloids which have been linked to serious illness, occasionally leading to death. Internal consumption of comfrey can cause serious liver damage. Therefore, the making of the representation set forth in Paragraph 17 was, and is, a deceptive practice and constitutes false advertising for a food or drug, in violation of the FTC Act, 15 U.S.C. §§ 45(a) and 52. 19. Defendants did not possess and rely upon a reasonable basis that substantiated the representation set forth in Paragraph 17, at the time the representation was made. Therefore, the making of the representation set forth in Paragraph 17 is a deceptive practice and constitutes false advertising for a food or drug, in violation of the FTC Act, 15 U.S.C. §§ 45(a) and 52. Efficacy Representations 20. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12(a) above, Defendants have represented, expressly or by implication, that BF&C Formula, taken internally, is effective in the treatment and/or cure of broken bones, curvature of the spine, polio, multiple sclerosis, muscular dystrophy, stroke, spinal cancer, and arthritis. 21. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12(b) above, Defendants have represented, expressly or by implication, that Calc Tea, taken internally, is effective in supplying all calcium needs, including all calcium needs of a developing fetus, in restoring teeth, and in the prevention, treatment, and/or cure of broken bones, cramps, "charlie horses," arthritis, headache, osteoporosis, paralysis, rheumatism, varicose veins, and insomnia. 22. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12(c) above, Defendants have represented, expressly or by implication, that Comfrey-Mullein-Garlic, taken internally, is effective in the treatment and/or cure of asthma, colds, coughs, lung congestion, and sore throats. 23. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12(d) above, Defendants have represented, expressly or by implication, that Resp-Free, taken internally, is effective in the treatment of emphysema, bronchitis, asthma, and tuberculosis. 24. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12(e) above, Defendants have represented, expressly or by implication, that X-Ceptic, taken internally or applied to an open wound, is effective in the prevention, treatment and/or cure of infection, pyorrhea, sore throat pain, toothache, and thrush. 25. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12(f) above, Defendants have represented, expressly or by implication, that V.B., used as a suppository, is effective in the treatment and/or cure of cancer. 26. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraph 12(g) above, Defendants have represented, expressly or by implication, that Yellow Dock Combination, used as a suppository, is effective in the treatment of prolapsed bowel and uterus, yeast infection, and herpes simplex. 27. Defendants did not possess and rely upon a reasonable basis that substantiated the representations set forth in Paragraphs 20 through 26, at the time the representations were made. Therefore, the making of the representations set forth in Paragraphs 20 through 26 is a deceptive practice and constitutes false advertising for a food or drug, in violation of the FTC Act, 15 U.S.C. §§ 45(a) and 52. CONSUMER INJURY 28. As a result of Defendants' unlawful acts or practices, consumers throughout the United States have suffered and continue to suffer monetary loss and possible injuries to their health. Defendants also have been unjustly enriched as a result of their unlawful practices. Absent injunctive relief by this Court, the Defendants are likely to continue to injure consumers, reap unjust enrichment, and harm the public interest. THIS COURT'S POWER TO GRANT RELIEF 29. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), authorizes this Court to grant 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 Commission. PRAYER FOR RELIEF WHEREFORE plaintiff Federal Trade Commission pursuant to Section 13(b) of the FTC Act, 15 U.S.C.§ 53(b), and the Court's own equitable powers, requests that this Court: 1. Permanently enjoin Defendants from violating the FTC Act as alleged herein; 2. Award such relief as the Court finds necessary to redress injury to consumers resulting from Defendants' violations of the FTC Act including the refund of monies paid and the disgorgement of ill-gotten monies; and 3. Award Plaintiff the costs of bringing this action, as well as such other and additional relief as the Court may determine to be just and proper. Respectfully submitted, WILLIAM E. KOVACIC
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_____________________ Attorneys for Plaintiff
Carlie Christiensen, Utah Bar No. 0633 Dated: ___________________ |