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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina Khan, Chair 

Noah Joshua Phillips 

Rohit Chopra 

Rebecca Kelly Slaughter 

Christine S. Wilson 

In the Matter of 

HEALTH RESEARCH LABORATORIES, LLC, 

a limited liability company, 

WHOLE BODY SUPPLEMENTS, LLC, 

a limited liability company, and 

KRAMER DUHON, 

individually and as an officer of HEALTH 

RESEARCH LABORATORIES, LLC and 

WHOLE BODY SUPPLEMENTS, LLC 

DOCKET NO. 9397 

RESPONDENTS’ FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Pursuant to the Commission’s July 30, 2021 Order, Respondents provide the 

following Findings of Fact and Conclusions of Law. 

I. SUMMARY 

In reliance on the federal regulations (16 C.F.R. 3.12), a federal statute (15 U.S.C. § 

45(b)), the Administrative Procedures Act, and the FTC’s explanation of its regulations in 

the Federal Register (74 Fed. Reg. 1804, 1808 (Jan. 13, 2009)), Respondents admitted the 

facts in the Complaint. Respondents understood that the “Commission would issue a final 

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decision on the basis of the facts alleged in the complaint”1 and that the relief granted would 

be limited to a “cease and desist order” that prohibits “disseminat[ing] or caus[ing] to be 

disseminated advertising and promotional materials” for four supplements. See 15 U.S.C. 

§ 45(b). The FTC has now changed the rules again. 

In its July 30, 2021 Order, the Commission stated that it would not issue a final 

decision based on the facts alleged in the Complaint, that it would consider “facts outside 

of the Complaint,” and that the relief that may be issued in this case would not be limited 

to the relief requested by the FTC in the Complaint. For the reasons stated in their Response 

to Complaint Counsel’s Statement of Additional Material Facts, Respondents respectfully 

disagree and believe that their constitutional and statutory rights are being violated and 

that the Commission is acting in manner that is inconsistent with the United States 

Constitution, FTC Act, Title 16 of the Code of Federal Regulations, and the FTC’s prior 

interpretation and explanation of its rules and regulations. 

Because Respondents have no choice, Respondents submit the following findings of 

fact and conclusions of law without waiving their prior objections to these administrative 

proceedings, including the objection to the Commission’s refusal to issue a final decision 

based on the record created by the Complaint and the Answer. 

II. PROPOSED FINDINGS OF FACT 

Respondents requests the following Findings of Fact: 

1 74 Fed. Reg. 1804, 1808 (Jan. 13, 2009). 

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1. In the Complaint, Complaint Counsel alleges that Respondents have 

“disseminated or [have] caused to be disseminated advertising and promotional materials”2 

for four supplements. 

2. In the Complaint, the Commission contends the statements in the 

advertisements and promotional materials for four supplements were “not substantiated at 

the time the representations were made.”3 

3. Pursuant to 16 C.F.R. § 3.12(b), Respondents elected to admit the material 

facts in the Complaint. 

4. In a written stipulation filed with the Commission, Respondents further 

agreed to a prohibition on disseminating or causing to be disseminated any advertising or 

promotional materials for any supplements that makes any representations regarding health 

or disease. 

III. PROPOSED CONCLUSIONS OF LAW 

Respondents request the following conclusions of law: 

1. In an administrative proceeding under Section 5(b) of the FTC Act, the 

Commission is authorized to enter an order against Respondents “to cease and desist from 

using such method of competition or such act or practice” referenced in the Complaint. 15 

U.S.C. § 45(b). 

2 See Complaint, ¶¶ 7, 9, 11 and 13. 

3 See Complaint, ¶¶ 15, 17, 19, and 21. 

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2. Under 16 C.F.R. § 3.12(b)(2), the Complaint and the Amended Answer in 

this case provide “a record basis on which the Commission shall issue a final decision 

containing appropriate findings and conclusions and a final order disposing of the 

proceeding.” 16 C.F.R § 3.12(b)(2). 

3. Respondents’ Amended Answer had the effect of dispensing with a hearing in 

this case and removing the proceedings to the Commission for determination of a final 

order. 16 C.F.R § 3.12(b)(2). 

4. In 2009, the Commission changed its Rules of Practice to “eliminate the ALJ’s 

authority to render an initial decision when the allegations of the complaint are admitted 

or there is a default. In those cases, the Commission would issue a final decision on the 

basis of the facts alleged in the complaint.” 74 Fed. Reg. 1804, 1808 (Jan. 13, 2009) 

(Interim final rules with request for comment). 

5. In explaining the 2009 amendments to Rule 3.12(b)(2), the Commission 

stated that “the Commission would issue a final decision on the basis of the facts alleged in 

the complaint.” 74 Fed. Reg. at 1808. The Commission further noted that where the 

allegations are admitted pursuant to Rule 3.12(b), there would be no evidence to hear or 

“voluminous record” to review, and therefore, it would be more “efficient for the 

Commission to issue a final opinion and order without the intermediate step of an ALJ’s 

initial decision.” 73 Fed. Reg. 58832, 58836 (Oct. 7, 2008) (Proposed Rules). 

6. In explaining the 2009 amendments to Rule 3.12(b)(2), the Commission also 

stated that these “cases can be resolved more expeditiously without the intermediate step 

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of an ALJ’s initial decision; the only issues in such cases are legal or policy ones ....” 74 Fed. 

Reg. at 1808-09. 

7. The structure of the Commission, under which the Commissioners can be 

removed by the President only for inefficiency, neglect, or malfeasance, violates Article II 

of the Constitution and the Constitution’s separation of powers. See Seila Law LLC v. 

Consumer Financial Protection Bureau, 140 S.Ct. 2183, 2193 (2020) (“The President’s 

power to remove—and thus supervise—those who wield power on his behalf follows from 

the text of Article II, was settled by the First Congress, and was confirmed in the landmark 

decision Myers v. United States, 272 U.S. 52 (1926).”). 

8. The FTC’s combined role of prosecutor, trial judge, jury, and appellate court 

in these administrative proceedings violates Respondents’ rights under the Due Process 

Clause of the Fifth Amendment to the United States Constitution. Minimal due process 

requires “notice of the factual basis” of the Government’s assertions “and a fair opportunity 

to rebut the Government’s factual assertions before a neutral decisionmaker.” Hamdi v. 

Rumsfeld, 542 U.S. 507, 533 (2004). Any use of the findings of fact—which are decided 

without adequate due process before a neutral decisionmaker—to deprive Respondents of 

property in a later action under 15 U.S.C. § 57b violates the Due Process Clause of the Fifth 

Amendment. See 15 U.S.C. § 57b(c). 

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Dated: August 20, 2021 Respectfully submitted, 

REESE MARKETOS LLP 

By: /s/ Joel W. Reese 

Joel W. Reese 

Texas Bar No. 00788258 

joel.reese@rm-firm.com 

Joshua M. Russ 

Texas Bar No. 24074990 

josh.russ@rm-firm.com 

750 N. Saint Paul St., Suite 600 

Dallas, TX 75201-3201 

Telephone: (214) 382-9810 

Facsimile: (214) 501-0731 

ATTORNEYS FOR RESPONDENTS 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 20, 2021, I filed the foregoing document 

electronically using the FTC’s E-Filing system, which will send notification to: 

April J. Tabor The Honorable D. Michael Chappell 

Acting Secretary Administrative Law Judge 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-113 600 Pennsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 Washington, DC 20580 

ElectronicFilings@ftc.gov email: oalj@ftc.com 

COMPLAINT COUNSEL 

Elizabeth Averill 

eaverill@ftc.gov 

Jonathan Cohen 

jcohen2@ftc.gov 

/s/ Joel W. Reese 

Joel W. Reese 

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