VoluntaryTrade.org

Arlington, Virginia - A New Mexico couple filed a preemptive lawsuit last week in U.S. District Court to protect their First Amendment rights against the Federal Trade Commission, which attempted to censor the couple’s website and extort money from their retail herb business.

On April 1, Mark and Marianne Hershiser, co-owners of Native Essence Herb Company, received a letter from the FTC’s western regional office demanding they sign an enclosed “consent agreement” forcing them to remove information from their website that cited government-sponsored studies of the medicinal properties of certain herbs. The FTC also demanded the Hershisers forfeit all of the earnings from their business and provide the Commission with detailed personal financial information to help calculate the “damages” owed.

The FTC cited no consumer complaint or actual injury. Instead, the FTC claims a general power to restrict the speech of individuals selling certain products such as herbs. The FTC says any statements about a product’s medicinal benefits must be approved by the FTC itself, despite the agency’s lack of scientific or medical expertise.

Mark Hershiser said he has never received a consumer complaint in 15 years of business, and that all of the information on the Native Essence website cited studies from government agencies like the National Institutes for Health.

Rather then sign the “consent agreement,” the Hershisers filed a complaint on June 25 with the U.S. District Court in Albequerque. They allege the FTC’s actions and policies are a facial violation of the First Amendment. They seek a permanent injunction and a declaratory judgment to stop the FTC’s censorship.

Skip Oliva, president of the Voluntary Trade Council, said the Hershisers’ lawsuit is a historic challenge to the FTC’s lack of institutional control and unconstitutional policies. “Mark and Marianne Hershiser have done what large, multinational companies often refuse to do -- stand up to the FTC and defend their rights.”

Oliva said the FTC’s actions were a crime, not consumer protection. “Extortion is a serious and violent criminal offense under U.S. and New Mexico law. Sending innocent people letters with demands for their property and personal papers is unacceptable, especially when the senders are employees of the United States government.”

The complete absence of due process in the Hershisers’ case, Oliva said, was sadly typical of the FTC’s recent behavior. “While the FTC has never respected the basic principles of due process -- as restated in the First, Fourth, Fifth, Sixth, Seventh and Ninth Amendments to the Constitution -- the Commission’s staff has reached a new low here. There was no complaint, investigation, hearing or trial afforded the Hershisers; merely a declaration of guilt from mid-level FTC staff lawyers and a demand for a signed confession and money.”

The Hershisers are represented by Richard Jaffe, a Houston attorney known for defending the civil rights of health care practitioners and organizations. The federal complaint has been assigned to a federal magistrate judge and awaits a formal response from the FTC.

You can download a copy of the complaint in Hershiser, et al. v. Federal Trade Commission at <http://www.voluntarytrade.org/joomla15/index.php/docs/doc_download/59-complaint>.