Covid cure “church” can’t avoid false advertising investigation

 Morningside Church, Inc. v. Rutledge, 2020 WL 4333539, —
F.Supp.3d —-, No. 3:20-cv-05050-MDH (W.D. Mo. Jul. 7, 2020)

“Plaintiffs are a not-for-profit corporation, which
describes itself as a church, a for-profit corporation, wholly owned by the
church, and an individual employed as a ‘minister’ by both.” They sought a TRO
against the Attorney General for the State of Arkansas (Rutledge); the District
Attorney for the County of Merced, California; the District Attorney for the
County of San Joaquin, California; and the City Attorney for the City of Los
Angeles, California, restraining them from taking any action against them for
their refusal to comply with Civil Investigative Demands or for alleged
violations of the Arkansas Deceptive Trade Practices Act, California False
Advertising Law, or California Unfair Competition Law, “resulting from the
content of their sermons, efforts to inculcate, or solicitation of
contributions” in conjunction with the offering of “Silver Solution,” or other
products. They alleged that touting Silver Solution etc. was part of their
religious practice and exercise and thus sought relief under 42 U.S.C. § 1983,
claiming First Amendment and related due process rights.

No.

Plaintiffs argued that the CIDs infringed on their religious
freedom and other rights by requiring disclosure of the names of their church
partners. “Defendants argue they have made it clear they are not requesting a
list of any church members, even given Plaintiffs’ broad definition of that
term (Plaintiffs refer to these individuals as ‘partners’), and that their
inquiries are limited to representations made in relation to, and furtherance
of, the sale of a product consumed in their respective jurisdictions.” Their
requests were limited to any products related to Silver Solution offered by plaintiffs
and any representations made by plaintiffs related to whether the products are
effective in the treatment or eradication of COVID-19.

Plaintiffs claimed
that anyone who ever interacted with them was a “member” of their church,
including anyone who ever ordered from the Silver Solution product line.  “They contend their church partnership does
not require any request for or consent on the part of the partner. … They
acknowledge they provide the product upon request only to those willing to make
a certain minimum level church contribution,” but denied that this was a sale. They
denied that they ever represented Silver Solution to be an effective cure or
treatment for COVID-19.

The AG of Missouri has a pending case against them; and
plaintiffs argued that interest from the FDA and FTC led to their decision to
stop offering Silver Solution in March 2020.

The court found no irreparable harm. Even with chilling
effect concerns, defendants agreed to drop requests for the names of individual
recipients of Silver Solution (though, I note, this could complicate consumer
redress), and plaintiffs have stopped offering Silver Solution products. And,
given their factual denials, they couldn’t be irreparably harmed by being
deterred “from doing something they say they have never done and do not intend
to do.”

Separately, jurisdictional issues alone raised doubts about
likely success on the merits, given the law enforcement authority of these representatives
of other states.

“The Court also has serious concerns regarding the breadth
of religious freedom Plaintiffs claim.” They argued that, if they sincerely
held a religious belief that the product was good, the government had no right
whatsoever to test the validity of their representations. “[S]uch a broad
interpretation opens the door to the criminally inclined to fraudulently market
products to the harm and detriment of the consumer public under the protection
and subterfuge of religious freedom.” Or, in other words, Employment Div. v.
Smith
had a good point about generally applicable laws.

But—perhaps unwilling to say that—the court instead said: “While
caution and deference should define the government’s approach in these
situations, at least some governmental inquiry into representations concerning
product offerings by ‘religious organizations,’ including an inquiry into the
basis and sincerity of the representations being made, and the safety of the
product for use by the public, seems appropriate.” Of course, the Supreme Court
is wary of inquiries into religious sincerity, and it’s completely unnecessary here,
because sincerity is irrelevant to the consumer protection question. That is
not about belief but about substantiation—and safety is far from the only
relevant issue. The court would have been better off focusing on facts and
substantiation of factual representations.

Anyway, the court thought that the CIDs were “within the
bounds of reasonable inquiry and focused on the protection of constituents of
the governmental entities conducting the investigation.”

from Blogger https://ift.tt/3l0fX8j

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