Court Rejects FTC’s Effort to Require Two Studies

June 13, 2012

By Riëtte van Laack

As we previously reported, the United States District Court for the Southern District of Florida denied the Federal Trade Commission’s (“FTC’s”) motion to hold Garden of Life and its founder, Jordan S. Rubin (collectively “GOL”) in contempt for allegedly violating a court-issued Consent Decree.  The Court held that a disagreement between FTC’s and GOL’s experts did not constitute evidence that GOL violated the Consent Decree which requires that GOL possess “competent and reliable scientific evidence” to support its claims. 

In an effort to tighten the screws regarding what GOL will contend in the future constitutes competent and reliable scientific evidence supporting GOL’s claims, the FTC moved to modify the Consent Decree.  The proposed modifications sought to redefine competent and reliable scientific evidence to mean two adequate and well-controlled human clinical studies for claims regarding bone and cognitive health benefits of GOL’s products and FDA approval for disease treatment and cure claims for GOL’s products. 

The Court rejected the FTC’s position, concluding that the FTC did not establish that any significant change in facts or law had occurred that warranted revision of the Consent Decree.  A difference in opinion between experts was not sufficient reason to modify the Consent Decree.  Moreover, there was no evidence to support the FTC’s contention that the original objective of the 2006 order had not been met.  The Court stressed that a Consent Decree is a negotiated document between parties in which each party gives up its right to prove its position.  Except under special circumstances, a Consent Decree must be enforced as written.  In 2006, FTC and GOL agreed to use the more vague definition of “competent and reliable scientific evidence” and the Court found that the FTC could have anticipated that experts might disagree.  The Court ruled that the FTC cannot now 5 years later, merely because it is no longer satisfied with the negotiated definition, have the Court modify this definition to suit the FTC’s purpose.