On January 26, the manufacturer of a green coffee bean extract (GCBE) agreed to pay the Federal Trade Commission $9 million to settle charges brought by the FTC that the manufacturer deceptively advertised weight loss benefits of GCBE.

Lindsey Duncan, through his companies Genesis Today, Inc. and Pure Health, LLC (the “defendants”), promoted GCBE on shows like “Dr. Oz” and “The View,” claiming that the supplement could cause consumers to lose 17 pounds and 16 percent of their body fat in just 12 weeks without diet or exercise. The defendants sold more than $50 million in GCBE supplements. The FTC charged that the claims made by the defendants were deceptive, unsubstantiated and based on a severely flawed study. As part of the FTC settlement, the defendants will pay the FTC $9 million for consumer redress and will stop making the purported deceptive claims.

Although the complaint was supported by a majority the Commission, two out of the five FTC commissioners dissented. Commissioners Maureen Ohlhausen and Joshua Wright wrote that the redress improperly included sales attributed to protected non-commercial speech by Dr. Oz and Duncan. Particularly, the commissioners highlighted that some of the statements were non-commercial in nature because Duncan never proposed a commercial transaction on screen and did not pay to appear on Dr. Oz’s show. The commissioners warned that suppressing all speech about a potential public concern simply because the speech is considered unreliable or unproven would produce a chilling effect, and would “far exceed the government’s proper role in regulating commercial speech.”