[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3394 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 3394

  To amend the Federal Trade Commission Act concerning the burden of 
  proof in false advertising cases involving dietary supplements and 
                          dietary ingredients.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 29, 2009

    Mr. Paul (for himself and Mr. Burton of Indiana) introduced the 
   following bill; which was referred to the Committee on Energy and 
                                Commerce

_______________________________________________________________________

                                 A BILL


 
  To amend the Federal Trade Commission Act concerning the burden of 
  proof in false advertising cases involving dietary supplements and 
                          dietary ingredients.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Freedom of Health Speech Act''.

SEC. 2. HEALTH INFORMATION.

    Section 5 of the Federal Trade Commission Act (15 U.S.C. 45) is 
amended by adding at the end the following:
    ``(o) Advertising of Dietary Supplements and Dietary Ingredients.--
            ``(1) Definitions.--In this subsection--
                    ``(A) the term `dietary supplement' has the meaning 
                given to that term in section 201(ff) (21 U.S.C. 
                321(ff)) of the Federal Food, Drug, and Cosmetic Act; 
                and
                    ``(B) the term `dietary ingredient' means an 
                ingredient listed in subparagraph (A) through (F) of 
                section 201(ff)(1) (21 U.S.C. 321(ff)(1)) of the 
                Federal Food, Drug, and Cosmetic Act that is included 
                in, or that is intended to be included in, a dietary 
                supplement.
            ``(2) Exemptions from regulation as advertising.--No 
        content of any publication shall be considered advertising 
        regulable under this Act unless the content is intended by the 
        seller of a product to promote the sale of that product and the 
        content includes (A) the name of the product offered for sale; 
        (B) an express offer to sell the named product; and (C) a 
        purchase price for the product. No content excerpted in whole 
        or part from a peer-reviewed scientific publication shall be 
        considered advertising regulable under this Act.
            ``(3) No implied claims.--In any investigation commenced by 
        the Commission and in any adjudicative proceeding in which the 
        Commission is a party, the Commission shall not attribute to an 
        advertiser accused of false advertisement any advertising 
        statement not actually made by that advertiser.
            ``(4) Notice, opportunity to cure, and burden of proof for 
        investigation.--Before the Commission authorizes an 
        investigation of false advertisement by an advertiser of a 
        dietary supplement or a dietary ingredient, the Commission 
        shall send the advertiser a written `Notice of Suspected 
        Violation and Opportunity to Cure' informing the advertiser 
        of--
                    ``(A) the precise advertising statement that the 
                Commission suspects may be false or misleading;
                    ``(B) the scientific basis for the Commission's 
                view that any statement of health benefit may be false 
                or misleading; and
                    ``(C) a date certain, not less than 30 days after 
                the date of the advertiser's receipt of the notice, by 
                which the advertiser may voluntarily discontinue 
                further use of the statement the Commission suspects 
                may be false or misleading and, upon so doing, the 
                advertiser shall not be subject to an investigation of 
                false advertisement by the Commission for the 
                statement.
        The Commission shall not commence any investigation of an 
        advertiser of a dietary supplement or a dietary ingredient to 
        determine whether the advertiser has disseminated a false 
        advertisement unless it possesses before the commencement of 
        such investigation clear and convincing evidence that the 
        advertisement is false and misleading.
            ``(5) Burden of proof for false advertisement cases.--In 
        every proceeding before a court or the Commission in which an 
        advertiser of a dietary supplement or a dietary ingredient is 
        charged with false advertising, the burden of proof shall be on 
        the Commission to establish by clear and convincing evidence 
        that the advertisement is false, that the advertisement 
        actually caused consumers to be misled into believing to be 
        true that which is false, and that but for the false 
        advertising content the consumer would not have made the 
        purchase at the price paid. If a claimed health benefit of a 
        dietary supplement or dietary ingredient is alleged to be false 
        advertising, the Commission must additionally establish based 
        on expert scientific opinion and published peer-reviewed 
        scientific evidence that the claim is false. No order adverse 
        to the advertiser shall be entered except upon the Commission 
        satisfying this burden of proof.''.
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