Monday, August 17, 2020

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.


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.”

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