Religion isn’t (yet) a defense to false advertising

State v. Valerie Saxion, Inc., 2014 WL 6839970, No. 02–13–00227 (Tex. Ct. App. Dec. 4, 2014)
Valerie Saxion argued that her free speech (and RFRA) rights were being violated by the state’s pursuit of claims against her and her company for the false and misleading sale of dietary supplements.  Texas sued Saxion for violations of the Texas Food, Drug, and Cosmetic Act (TFDCA) and the Deceptive Trade Practices Act (DTPA), based on her claims about the ability of her dietary supplements to diagnose, mitigate, treat, cure, and prevent disease.  The state further alleged that Saxion’s promotion of herself as a “naturopathic” doctor, which Texas does not recognize, was deceptive, and stated that any use of terms like “Doctor” or “Dr.” her name on labels or advertising was false advertising.
Texas sought to enjoin Saxion from, among other things, misbranding, misrepresentation, and mislabeling by failing to disclose that claims to diagnose, mitigate, treat, cure, or prevent disease cannot legally be made for dietary supplements; representing that she had a sponsorship, approval, status, affiliation, or connection that she does not have by using the title “Doctor,” or the abbreviation “Dr.”; and making misleading claims, either explicitly or implicitly, to diagnose, mitigate, treat, cure, or prevent disease for dietary supplements through any means.  Examples of Saxion’s claims included: “CLA has been shown to have strong anti-cancer properties. Especially in inhibiting breast and prostate tumors as well as colorectal, stomach and skin cancer, including melanoma…. CLA even lowered cancer cell growth. CLA is an excellent inhibitor of tumor growth.”  The complaint also listed numerous other substances for which Saxion made numerous other equally aggressive claims.
Saxion contended that her statements were based on her sincerely held religious beliefs, though she admitted that these religious statements were “not contained on the labels of her products.”  She pointed to a book she wrote which stated:
1. Realize there is a problem! The first step to utilizing your spiritual authority over food or whatever has a hold on you is admitting you have a problem.
2. Ask for the Holy Spirit’s help! Ask the Holy Spirit to reveal anything that is not pleasing to Him. If you really want to be free, listen when he answers. You may be surprised what he reveals to you.
3. Repent! Ask the Lord to forgive you for allowing food to have such a strong hold on your life, and thank Him for [s]howing you this area of your life that needs work. Don’t beat yourself up over it. Just repent and receive God’s forgiveness and love.
God has placed herbs, minerals and vitamins for us to understand and utilize to maintain health and regain health[.] He [h]as instructed man through His Word on how to utilize these for our personal wellness.
Saxion sought a declaratory judgment that her rights would be violated if penalties were imposed against her, because her statements rested on religious doctrine or belief and her speech was therefore not just commercial speech.  She averred that she promoted dietary supplements to be used in conjunction with faith in God, that she was a regular on TBN’s Praise the Lord and hosted TBN’s Alternative Health, and that the attorney general’s office intended to silence her ministry and destroy her business.  Though her book told people to seek medical advice, none of the excerpts specifically mentioned the products at issue in this case, and she didn’t promote her products specifically on her shows, speaking instead of “vitamin C” and the like.  TBN apparently cancelled her alternative health programs “due to legal matters that are taking place within your ministry.” Saxion contended:
It strains credulity to imagine a person would dedicate her life to a theology contained in the book, The Gospel of Health, the A–Z Guide to Vibrant Health God’s Way, yet market her vitamins independent of any religious motivation. She does attempt to keep health claims off the labels. But maybe some do technically cross a line. She nevertheless cannot be stopped or punished. She avoids health claims on the labels to be respectful, not because she must.
Even in Texas, this did not fly.  For various reasons the procedural issues in this interlocutory appeal were tied up with the substance; Texas allows a member of the electronic or print media, or a person whose communication at issue appears in same, to appeal from an interlocutory order when the claim against it involves the free speech/free press clause of the First Amendment.  However, Saxion was not being sued by the State in the capacity of an author “or with regard to the statements made in her books and other media-related presentations but rather in the capacity of the owner of a business that manufactures and sells products that the State regulates.”  The communications at issue were labels, not libel.  “Saxion has not shown that her products’ allegedly improper and misleading labels appeared in or were published by the electronic or print media, and her own evidence shows that she kept her supplements business separate from her media activities.”  In addition, the law’s plain language didn’t include free exercise/freedom of religion claims.
Saxion claimed that the AG’s enforcement actions infringed on her free exercise rights.  If there was a burden on the free exercise of religion by interfering with an individual’s observance or practice of a central religious belief, the question was whether the burden was a substantial one, and if so, whether it was justified by a compelling governmental interest.  However, the practices challenged by the State didn’t seek to restrain Saxion from practicing any religious beliefs or expressing any religious opinions.  (This is a completely understandable conclusion, but query how it comports with Hobby Lobby: if she really has a sincere religious belief that she’s supposed to sell this stuff to cure cancer—and we’re not supposed to question her sincerity—why isn’t the state’s action suppressing a religious activity?  Of course I’d also find that there’s a compelling governmental interest—though note how, because she’s promoting these supplements to treat illness, the state doesn’t have to show that she’s wrong to show a violation of the state and federal food and drug laws.  Why shouldn’t the state have to bear that burden?)   
Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996), disallowed claims against a televangelist for conspiracy and intentional infliction of emotional distress but allowed claims with respect to fraud claims that did not involve allegedly fraudulent and deceitful presentations of religious doctrine or belief). In a plurality opinion, Tiltoncautioned that the trial court had to carefully consider each alleged misrepresentation and determine which fraud claims, if any, involved religious doctrines or beliefs, to ensure that the trier of fact did not hear evidence on them or pass on their veracity. In Saxion’s case, one of the labeling or other product-related issues involved any statements of religious belief.  Instead, the state was regulating the advertising and sale of dietary supplements “as a proper restraint on commercial speech necessary to protect the public.”  Saxion “failed to show how her religious calling to educate others on the health benefits of vitamins was substantially burdened when the part of her evidence that was undisputed by the State showed that she was able to separate her general message about vitamins and minerals from any promotion of a specific brand from her dietary-supplement business.”
Saxion had no federal RFRA claim because federal RFRA doesn’t apply to the states, and she failed to properly raise a state RFRA claim.

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