Marc Ching; Analysis To Aid Public Comment, 43238-43239 [2020-15316]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 85, Number 137 (Thursday, July 16, 2020)]
[Notices]
[Pages 43238-43239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15316]


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FEDERAL TRADE COMMISSION

[File No. 202 3110]


Marc Ching; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement; request for comment.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices. The attached Analysis to Aid Public Comment describes both 
the allegations in the complaint and the terms of the consent order--
embodied in the consent agreement--that would settle these allegations.

DATES:  Comments must be received on or before August 17, 2020.

ADDRESSES: Interested parties may file comments online or on paper by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Marc Ching; File No. 
202 3110'' on your comment, and file your comment online at https://www.regulations.gov by following the instructions on the web-based 
form. If you prefer to file your comment on paper, mail your comment to 
the following address: Federal Trade Commission, Office of the 
Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 
20024.

FOR FURTHER INFORMATION CONTACT: Tawana E. Davis (202-326-2755), Bureau 
of Consumer Protection, Federal Trade Commission, 600 Pennsylvania 
Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing a consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC website (for July 10, 2020), at this web address: https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before August 17, 2020. 
Write ``Marc Ching; File No. 202 3110'' on your comment. Your comment--
including your name and your state--will be placed on the public record 
of this proceeding, including, to the extent practicable, on the 
https://www.regulations.gov website.
    Due to the public health emergency in response to the COVID-19 
outbreak and the agency's heightened security screening, postal mail 
addressed to the Commission will be subject to delay. We strongly 
encourage you to submit your comments online through the https://www.regulations.gov website.
    If you prefer to file your comment on paper, write ``Marc Ching; 
File No. 202 3110'' on your comment and on the envelope and mail your 
comment to the following address: Federal Trade Commission, Office of 
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), 
Washington, DC 20580. If possible, submit your paper comment to the 
Commission by overnight service.
    Because your comment will be placed on the publicly accessible 
website at https://www.regulations.gov, you are solely responsible for 
making sure your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure your comment does not include 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2) including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the public FTC website--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from the FTC website, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC website at https://www.ftc.gov to read this Notice and 
the news release describing the proposed settlement. The FTC Act and 
other laws that the Commission administers permit the collection of 
public comments to consider and use in this proceeding, as appropriate. 
The Commission will consider all timely and responsive public comments 
that it receives on or before August 17, 2020. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing a consent 
order with Marc Ching, individually and doing business as Whole Leaf 
Organics (``respondent''). The proposed consent order (``order'') has 
been placed on the public record for 30 days for receipt of comments by 
interested persons. Comments received during this period will become 
part of the public record. After 30 days, the Commission will again 
review the order and the comments received, and will decide whether it 
should withdraw the order or make it final.

[[Page 43239]]

    This matter involves the respondent's advertising for Thrive, CBD-
EX, CBD-RX, and CBD-Max. The complaint alleges that respondent violated 
Sections 5(a) and 12 of the FTC Act by disseminating false and 
unsubstantiated advertisements claiming that: (1) Thrive treats, 
prevents, or reduces the risk of COVID-19; (2) CBD-EX, CBD, RX, and 
CBD-Max treat cancer; (3) Thrive is clinically or scientifically proven 
to treat, prevent, or reduce the risk of COVID-19; and (4) CBD-EX, CBD, 
RX, and CBD-Max are clinically or scientifically proven to treat 
cancer.
    The order includes injunctive relief that prohibits these alleged 
violations and fences in similar and related conduct. The product 
coverage would apply to any dietary supplement, drug, or food the 
respondent sells, markets, promotes, or advertises.
    Part I prohibits respondent from making any representation about 
the efficacy of any covered product, including that such product will: 
(1) Treat, prevent or reduce the risk of COVID-19; (2) treat cancer; or 
(3) cure, mitigate or treat any disease in humans, unless the 
representation is non-misleading, including that, at the time such 
representation is made, he possesses and relies upon competent and 
reliable scientific evidence that substantiates that the representation 
is true. For purposes of this Provision, ``competent and reliable 
scientific evidence'' means human clinical testing of the covered 
product or of an essentially equivalent product that is sufficient in 
quality and quantity, based on standards generally accepted by experts 
in the relevant disease, condition, or function to which the 
representation relates, when considered in light of the entire body of 
relevant and reliable scientific evidence, to substantiate that the 
representation is true.
    Part II prohibits respondent from making any representation, other 
than representations covered under the Provision titled Prohibited 
Disease Claims, expressly or by implication, about the health benefits, 
performance, or efficacy of any covered product, unless the 
representation is non-misleading, including that, at the time such 
representation is made, he possesses and relies upon competent and 
reliable scientific evidence that is sufficient in quality and quantity 
based on standards generally accepted by experts in the relevant 
disease, condition, or function to which the representation relates, 
when considered in light of the entire body of relevant and reliable 
scientific evidence, to substantiate that the representation is true. 
For purposes of this Provision, ``competent and reliable scientific 
evidence'' means tests, analyses, research, or studies that (1) have 
been conducted and evaluated in an objective manner by experts in the 
relevant disease, condition, or function to which the representation 
relates; (2) that are generally accepted by such experts to yield 
accurate and reliable results; and (3) that are randomized, double-
blind, and placebo-controlled human clinical testing of the covered 
product, or of an essentially equivalent product, when such experts 
would generally require such human clinical testing to substantiate 
that the representation is true.
    Part III requires that with regard to any human clinical test or 
study (``test'') upon which the respondent relies to substantiate any 
claim covered by the order, the respondent must secure and preserve all 
underlying or supporting data and documents generally accepted by 
experts in the field as relevant to an assessment of a test.
    Part IV prohibits respondent from misrepresenting the existence, 
contents, validity, results, conclusions, or interpretations of any 
test, study, or other research or that any benefit of any covered 
product is scientifically or clinically proven. Part V provides 
respondent a safe harbor for making claims approved by the Food and 
Drug Administration (``FDA'').
    Part VI requires respondent to send notices to consumers who 
purchased Thrive, CBD-EX, CBD-RX, and CBD-Max informing them about the 
settlement. Part VII requires respondent to send notices to resellers 
and retailers informing them about the settlement.
    Part VIII requires respondent to submit an acknowledgement of 
receipt of the order, to serve the order on certain individuals, 
including all officers or directors of any business respondent controls 
and employees having managerial responsibilities for conduct related to 
the subject matter of the order, and to obtain acknowledgements from 
each individual or entity to which respondent has delivered a copy of 
the order.
    Part IX requires respondent to file compliance reports with the 
Commission, and to notify the Commission of bankruptcy filings or 
changes in corporate structure that might affect compliance 
obligations. Part X contains recordkeeping requirements for accounting 
records, personnel records, consumer correspondence, advertising and 
marketing materials, and claim substantiation, as well as all records 
necessary to demonstrate compliance or non-compliance with the order. 
Part XI contains other requirements related to the Commission's 
monitoring of the respondent's order compliance. Part XII provides the 
effective dates of the order, including that, with exceptions, the 
order will terminate in 20 years.
    The purpose of this analysis is to facilitate public comment on the 
order, and it is not intended to constitute an official interpretation 
of the complaint or order, or to modify the order's terms in any way.

    By direction of the Commission, Commissioner Chopra dissenting, 
Commissioner Slaughter not participating.
April J. Tabor,
Secretary.
[FR Doc. 2020-15316 Filed 7-15-20; 8:45 am]
BILLING CODE 6750-01-P