PUBLIC

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Lina M. Khan, Chair 

Noah Joshua Phillips 

Rohit Chopra

Rebecca Kelly Slaughter

Christine S. Wilson

________________________________________________ 

In the Matter of

HEALTH RESEARCH LABORATORIES, LLC, DOCKET NO. 9397 

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.

________________________________________________ 

COMPLAINT COUNSEL’S RESPONSE TO RESPONDENTS’ 

SEPTEMBER 10, 2021 SUBMISSION

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I. Introduction 

The undisputed facts in this proceeding clearly establish Respondents’ liability as well as 

the need for robust relief to prevent future violations. Respondents admitted all the material facts 

in the Complaint and conceded the additional facts proffered by Complaint Counsel on May 25. 

However, in their latest submission, Respondents attempt to largely withdraw their Rule 

3.12(b)(2) admissions and introduce a host of unsupported,1

 erroneous, and irrelevant factual 

claims, which Complaint Counsel dispute. For the reasons explained below, the Commission 

should disregard Respondents’ late factual contentions and issue a final decision based on the 

Complaint and its exhibits, the admissions in Respondents’ Amended Answer, and the 

undisputed additional facts set forth in Complaint Counsel’s May 25, 2021 submission. 

II. Procedural History

A. Respondents Waived Opportunity To Present Facts Before the ALJ.

In response to the Complaint issued on November 13, 2020, Respondents filed their

Answer denying most allegations and asserting various defenses. Answer (Dec. 4, 2020). 

However, after limited discovery,2 Respondents changed course and filed a motion asking Judge 

Chappell to enter a narrow cease-and-desist order and terminate further proceedings. 

Respondents’ Motion for Acceptance of Contested Stipulated Cease-and-Desist Order (Jan. 13, 

 

1 Respondents’ factual claims rest almost entirely on a self-serving affidavit from Kramer Duhon that is full of 

irrelevant content and is plainly insufficient to create a genuine issue of material fact. 16 C.F.R. § 3.24(a)(3). Much 

of the affidavit’s content is not based on Duhon’s personal knowledge. See, e.g., RX1 ¶¶ 8, 13, 16, 19-23, 25, 26, 

34-35, n. 3, n.4, n.7, n.10. Other sections opine on scientific issues that Duhon is not competent to testify about. Id.

¶¶ 15, 17; see also 16 C.F.R. § 3.24(a)(3). 

2 Significantly, Respondents not only declined to present facts themselves, they did not fully comply with discovery 

requests. Judge Chappell denied Complaint Counsel’s additional attempts to compel discovery on the basis that, 

given Respondents’ admissions, “discovery is moot.” Order (Apr. 20, 2021) at 5. Consequently, the proceedings 

below concluded without complete document discovery, any depositions, or any expert discovery. 

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2021). When this motion was denied, Respondents sought leave to amend their Answer to admit 

all material facts pursuant to 16 C.F.R. § 3.12(b)(2). Importantly, to facilitate the chances of 

their motion being granted, Respondents “unconditionally waive[d]” certain fact-based 

“affirmative defenses and agree[d] not to assert these particular affirmative defenses in any 

future answer.” Waiver (Feb. 25, 2021). In particular, Respondents “unconditionally waive[d]” 

their “mootness” defense, which asserted that “all alleged conduct ... referenced in the 

Complaint ceased more than a year prior to the filing of the Complaint and will not reoccur in the 

future.” Id. On March 10, 2021, Judge Chappell granted Respondents’ motion. Order (Mar. 10, 

2021). Accordingly, on March 30, Respondents filed an Amended Answer admitting all material 

factual allegations in the Complaint were “true.” Amended Answer. On April 20, 2021, Judge 

Chappell transferred this matter to the Commission. Order (Apr. 20, 2021). 

B. Respondents Waived Opportunity To Present Facts Before Commission.

On May 14, 2021, the Commission explained Respondents’ admissions did not 

“necessarily terminate all proceedings in the case.” Order (May 14, 2021) at 2. The 

Commission further observed that because Respondents’ Amended Answer reserved their 

“right[] to submit proposed findings of fact and conclusions of law” and they had filed a 

Stipulation related to relief, some uncertainty remained regarding “the issues in dispute.” Id. 

Given this context, the Commission understandably concluded that, to “structure the next steps 

in this proceeding, it is important that we understand what, if any factual issues remain to be 

resolved.” Id. Accordingly, the Commission ordered Complaint Counsel to identify additional 

material facts they “intend to assert, other than facts expressly alleged in the Complaint.” Id. at 

3. As relevant here, the Commission further ordered Respondents to (1) “state whether they 

dispute [each] asserted fact” and (2) “identify any additional material facts, other than those 

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alleged in the Complaint or asserted by Complaint Counsel, that Respondents intend to assert[.]” 

Id. The Commission thereby afforded Respondents another opportunity to present their factual 

case. 

On May 25, 2021, Complaint Counsel identified thirty additional facts other than those 

alleged in the Complaint. Importantly, all thirty additional facts appeared to be undisputed and 

reflect information from only four sources: (1) Respondents’ advertisements; (2) the Complaint 

and Stipulated Order in the Commission’s first enforcement action against Respondents3; (3) 

documents Respondents created and produced to Complaint Counsel (generally discovery 

responses); and (4) emails between Kyle Duhon, Respondent Kramer Duhon’s nephew who 

worked with Respondents, and Curtis Walcker, Respondents’ consultant. See Statement of 

Additional Material Facts (May 25, 2021), Att. A. In response, Respondents asserted various 

legal arguments, but “did not specifically dispute any of the[se] individual asserted facts, nor did 

they identify additional material facts of their own.” Order (July 30, 2021) at 2. Notably, 

Complaint Counsel’s submission also identified facts Respondents had admitted in their 

Amended Answer (including the specific disease-related claims alleged and that these claims 

were unsubstantiated). See Statement of Additional Material Facts (May 25, 2021) at 1-3. In 

response, Respondents wrote: “Respondents do not respond to Complaint Counsel’s recitation of 

what facts are allegedly included in the Complaint.” Respondents’ Response to Complaint 

Counsel’s Statement of Additional Material Facts (June 1, 2021) at 6. 

The Commission then ordered the parties to submit proposed findings, proposed orders, 

“and briefs addressing liability, remedy and defenses.” Order (July 30, 2021) at 4. In addition, 

the Commission directed that “if any party chooses to rely on facts outside of the Complaint,” it 

 

3 See FTC v. Health Research Laboratories, LLC, et al., No. 2:17-cv-467-JDL (D. Maine). 

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must also submit “a concise statement of the [additional] material facts as to which it contends 

there is no genuine issue for trial[.]” Id. On August 20, 2021, Complaint Counsel did this. 

Significantly, Complaint Counsel based their arguments exclusively on facts alleged in the 

Complaint that Respondents admitted through their Amended Answer, or the thirty additional 

facts that, as the Commission noted, “Respondents have not disputed[.]” Order (July 30, 2021) 

at 2. Put another way, Complaint Counsel’s submission relied solely on admitted or conceded 

facts—the Rule 3.12(b)(2) admissions and the thirty additional, undisputed facts—and then 

asked the Commission to draw reasonable inferences and conclusions from those facts. See 

Complaint Counsel’s Brief in Advance of Final Decision (Aug. 20, 2021) (relying exclusively on 

proposed findings of fact); Proposed Findings of Fact (identifying each proposed finding of fact 

as based on either a Rule 3.12(b)(2) admission or one of thirty undisputed additional facts).4

 

 For their part, Respondents again did not comply with the Commission’s direction. 

Instead, on August 20, 2021, Respondents submitted four proposed findings of fact and did not 

suggest that the Commission find any facts “outside the Complaint.” Thus, even when the 

Commission provided Respondents with another opportunity to advance new facts, they once 

again chose not to. 

III. The Commission Should Disregard Respondents’ Alleged New Facts as 

Improper, Disputed, and Untimely, and Enter the Proposed Order. 

A. Respondents’ New Alleged Facts are Improper Because They Contradict Their

Admissions. 

Remarkably, given the procedural history detailed above, Respondents waited until their 

final submission to declare they are disputing a number of central factual allegations in the 

 

4 Out of an abundance of caution, Complaint Counsel also submitted three declarations to establish the authenticity 

of each document used to establish the thirty additional undisputed facts. See Proposed Findings of Fact (Aug. 20, 

2021), CCX1-CCX3. In any event, Respondents have not disputed these documents’ authenticity. 

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Complaint, including key factual issues related to claim interpretation and substantiation. Opp. 

at 13-14.5

 Put simply, Respondents improperly attempt to jettison their earlier admissions that 

the Complaint’s factual allegations are “true” and to advance previously undisclosed factual

defenses. 

Respondents principally argue they have not actually admitted every material fact in the 

Complaint because various factual contentions “were included in the legal counts [in the 

Complaint], not the allegations of fact [in] the Complaint[.]” Opp. at 13. However, the 

Complaint does not distinguish between factual allegations and “legal counts”; in fact, it has only 

various “counts,” not “legal counts.” The presence of a factual allegation in, for instance, 

“Count I: Respondents’ Unsubstantiated Claims Related To Black Garlic Botanicals” rather than 

an earlier section entitled “Black Garlic Botanicals” does not convert the allegation from factual 

to legal. Cf. Benrose Fabrics Corp. v. Rosenstein, 183 F.2d 355, 357 (7th Cir. 1950). Equally 

important, Rule 3.12(b)(2) applies to “the allegations of fact set forth in the complaint,” not “part 

of the complaint,” and the factual allegations at issue are plainly “in the complaint.” 16 C.F.R. 

§ 3.12(b)(2). 

Furthermore, the factual allegations Respondents now deny admitting concern what 

claims Respondents’ advertising conveyed or the absence of substantiation for those claims. 

Both issues are purely factual. Notably, a “conclusion of law” (rather than a finding of fact) is 

one that the factfinder makes “by the selection and application of a rule of law to the established 

facts.” United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir. 1976) 

 

5 To provide one of several examples, the Complaint alleges Respondents’ Black Garlic Botanicals ad claims “were 

not substantiated at the time [they] were made.” Complaint ¶15. The absence of substantiation is plainly a material 

fact, and Respondents admitted that all material factual allegations in the Complaint were “true.” See Amended 

Answer. Yet Respondents now claim “valid and reputable scientific studies . . . substantiated the health benefits of 

aged garlic,” RX1 ¶16, and that “[t]here is no material difference in aged black garlic vs. aged garlic,” Opp. at 5. 

Respondents also attach and discuss five garlic studies, see RX1 ¶17, and incorrectly contend the FTC’s expert 

report from the earlier Maine proceeding supports their view, see Opp. at 4 n.3.

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(citation omitted); see also Poyner v. Lear Siegler, Inc., 542 F.2d 955, 959 (6th Cir. 1976) (“If a 

determination concerns whether the evidence showed that something occurred or existed, it is a 

finding of fact. However, if a determination is made by processes of legal reasoning from, or of 

interpretation of the legal significance of, the evidentiary facts, it is a conclusion of law.”) 

(citation omitted). Whether an advertisement conveys a specific message to consumers is 

unquestionably factual. Similarly, whether Respondents possessed appropriate scientific 

evidence to substantiate their advertising claims is a factual issue. Because Respondents 

admitted all material facts “in the complaint” are “true,” they admitted the factual contentions 

that happen to appear in the Complaint’s counts. 

B. Unlike Complaint Counsel’s Proposed Findings, Respondents’ New Allegations 

are Unsupported and Disputed. 

Importantly, Respondents disregarded the procedure the Commission established to 

create a record of clearly-identified admitted or undisputed facts on which it would base its 

decision. That procedure defined a basic “universe” of facts the Commission would consider 

including: (1) facts Respondents admitted pursuant to Rule 3.12(b)(2); (2) additional facts that 

one party asserted and the other failed to contest; and (3) inferences that the Commission might 

draw from the first two categories of facts. This is consistent with the Commission’s Rule 

providing that summary disposition is appropriate when the record reflects “no genuine issue as 

to any material fact” and the movant is entitled to the relief sought “as a matter of law.” 16 

C.F.R. § 3.24(a)(2). Respondents deviated from this framework by belatedly raising disputes 

concerning, among other things, the alleged import of disclaimers, the existence of substantiation 

related to black garlic, and various claimed mitigating circumstances. The primary source of 

Respondents’ “evidence” is Kramer Duhon’s self-serving affidavit, which is neither reliable nor 

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sufficient to create a genuine issue of material fact, even if it were proper to raise at this 

juncture.6 Jerk, LLC, et al., 159 F.T.C. 885, 2015 WL 13021976, at *4 (Mar. 13, 2015) 

(“Conclusory, speculative, and self-serving affidavits are insufficient to create a factual 

dispute.”) (citing cases); 16 C.F.R. § 3.24(a)(3). 

Further, Complaint Counsel disputes essentially all of Respondents’ new factual

assertions, putting them outside of the categories of evidence the Commission indicated it would 

consider. For example, Respondents claim their supposed “long history of compliance” with the 

agency’s investigation counsels against strong injunctive relief. See Opp. at 1-3, 7, RX1 ¶¶ 24, 

25. However, Respondents were legally required to comply with information requests from FTC 

staff, yet repeatedly failed to provide requested information during the investigation. See CCX4, 

Averill Aff., Att. G & H. Respondents also falsely claim the only “area of dispute” previously 

identified by FTC staff concerned whether aged black garlic and aged garlic extract are

equivalent ingredients. In reality, staff identified multiple problems with Respondents’ 

purported substantiation for advertising claims for each of the Challenged Products. See CCX4, 

Averill Aff., Att. H.7 

Even with respect to the equivalent ingredient “area of dispute,” Respondents’ newly

asserted “facts” are wrong. Specifically, relying solely on Duhon’s affidavit, Respondents claim 

“[t]here is no material difference in aged black garlic vs. aged garlic extract.” Opp. at 5. As 

Harvard Professor and cardiologist Frank M. Sacks has already explained, this is false. See 

Opp., RX2, Expert Report of Frank M. Sacks, at 8-9 (PDF 218-19). 

Many other facts Respondents newly assert are wrong or misleading. For instance, 

 

6 Respondents baldly “aver” they now dispute various facts (Opp. at 13), which is plainly insufficient to create a 

genuine issue of material fact under Rule 3.24(a)(3). 

7 See also Opp., RX2, Expert Reports of Frank M. Sacks and Charles Burant (PDF 211-232, 283-306). 

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they suggest that “immediately after the FTC first raised its aged garlic extract argument,” they 

stopped selling their black garlic products in September 2019. See Opp. at 5. In fact, 

Respondents stopped advertising the Challenged Products on their websites only after FTC staff

raised concerns about their continued advertising and initiated final consent negotiations. CCX4, 

Averill Aff., Att. I & J. Further, Respondents informed FTC staff at that time they would 

continue selling the products to consumers enrolled in continuity programs, or those placing 

orders or reorders for the products, and they did so. CCX4, Averill Aff., Att. K, pp. 3-4.8 

In contrast, all of the facts upon which Complaint Counsel relies are admissions, 

concessions based on Respondents’ decisions not to dispute additional facts and supported by 

uncontested evidence, or inferences from those facts. Importantly, even if Respondents were 

allowed to belatedly contest facts, Respondents have not done so—nor could they. As explained 

above, Respondents admitted all facts in the Complaint by invoking Rule 3.12(b)(2), and the 

additional thirty facts proposed by Complaint Counsel are beyond dispute. First, Complaint 

Counsel offered the advertisements themselves, and Respondents have not contended, nor could 

they, that the advertisements are not theirs. Second, Complaint Counsel offered the Complaint 

and Stipulated Order in the Maine action, which Respondents do not, and cannot deny. Third, 

Complaint Counsel offered documents Respondents created and produced, and Respondents 

have not contended that they did not create and produce these documents. Fourth, Complaint 

Counsel offered emails between Kyle Duhon and Curtis Walcker, and again Respondents do not 

deny the authenticity of those emails, nor have they introduced any evidence contradicting 

 

8

 In another clear-cut example of the many inaccuracies in the latest submission, Respondents now “estimate” their 

net profits were “less than $70,000” for all of their products from 2018-2020. RX1 ¶ 39; see also Opp. at 11. 

However, Respondents’ earlier responses during the investigation and in discovery reported total revenues for the 

four Challenged Products in 2018 and 2019 of at least $2.7 million (after refunds), with net profits of at least 

$403,509 for the period after January 16, 2018. CCX4, Averill Aff., Att. L, M, N. Respondents have not provided 

specific sales information for the period after September 2019. 

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Complaint Counsel’s proposed finding that Walcker provided feedback about the Black Garlic 

Botanicals mailer at issue in this proceeding, and Respondents chose not to make any changes.

9

 

Consequently, with respect to facts offered after Respondents’ Rule 3.12(b)(2) Answer, 

Complaint Counsel’s additional facts were initially conceded and remain undisputed—and 

therefore are a valid basis upon which to enter the Proposed Order. In contrast, Respondents’ 

belated facts are disputed and rest almost exclusively on Duhon’s self-serving affidavit. 

Accordingly, they should not be considered. 

C. Respondents Alleged New Facts are Untimely Because They Failed to Comply 

with the Procedure the Commission Established. 

As discussed above, the Commission previously ordered Respondents to identify any new 

or additional facts they intend to assert, but they did not.10 Considering Respondents’ new or 

additional facts despite their clear and flagrant disregard for the Commission’s procedure would 

prejudice Complaint Counsel and the public by allowing Respondents to abuse the 

Commission’s Rule (e.g., creating significant delay by asserting Rule 3.12(b)(2), then attempting 

to withdraw their admissions at the last minute, which would require Complaint Counsel to 

restart litigation from the beginning). Respondents’ strategy in this proceeding makes a mockery 

 

9 Respondents object to Walcker’s affidavit primarily on hearsay grounds, although pursuant to Rule 3.43, hearsay is 

admissible if it is “relevant, material, and reliable,” which is the case here. See, e.g., Polypore Int’l, Inc., 2010 WL 

3053866, at *3 n.4 (F.T.C. July 28, 2010). Regardless, Complaint Counsel offers Walcker’s statements not for their 

truth, but to show knowledge and mindset (i.e., that Respondents were informed by their own consultant that their 

advertising had significant problems, yet they made no changes), and to authenticate the associated emails. Further, 

Respondents’ contention there is no evidence establishing dissemination dates of the mailers included in Complaint 

Ex. A and Walcker Affidavit, Att. B is simply incorrect. Opp. at 16. Respondents’ interrogatory responses confirm 

only one version of the Black Garlic Botanicals mailer was circulated after January 17, 2018, and Walcker 

performed his review on May 29, 2018. See CCX1, Averill Aff., Att. D ¶ 3; CCX3. Tellingly, Respondents do not 

dispute the truth of proposed finding no. 95 or any fact in Walcker’s affidavit. 

10 Moreover, as explained above, the Commission afforded Respondents an opportunity to contest the thirty 

additional facts Complaint Counsel identified, yet Respondents did not dispute them. Respondents’ late attempt to 

advance new facts contradicting admitted or conceded factual contentions is improper and should be disregarded.

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of the Commission’s attempts, through its Orders and Rules, to create an orderly, fair process to 

adjudicate disputes. 

IV. Respondents’ Legal Arguments Against Relief Are Meritless. 

Respondents advance new legal arguments in their Opposition based on estoppel and res 

judicata theories, as well as the contention their unlawful conduct is not likely to reoccur.11 

Opp. at 12-13, 18-19. 

A. The Previous Contempt Action Does Not Bar This Proceeding. 

Respondents cursorily argue the doctrines of collateral estoppel, quasi-estoppel,12 or res 

judicata prevent the Commission from considering Respondents’ violations of Section III of the 

Stipulated Order. Specifically, they argue “the issue of whether Respondents violated the 

Consent Judgment has been decided against the FTC.” Opp. at 19. However, Respondents 

grossly misrepresent the issue decided in the contempt proceeding, and none of the asserted

doctrines applies for the reasons explained below. 

Collateral estoppel precludes a party from re-litigating in a second cause of action any factual 

or legal issue that was actually decided against it in a previous litigation. Allen v. McCurry, 449 

U.S. 90, 94 (1980). It is inapplicable here because Complaint Counsel is not re-litigating any 

issue decided in the contempt proceeding. The Court denied the earlier contempt motion based 

 

11 In Section III.E of their Opposition, Respondents also reassert several objections to the administrative process that

Complaint Counsel previously addressed. See Complaint Counsel’s Brief in Advance of Final Decision, 19-20; 

Complaint Counsel’s Replies to Respondents’ Findings of Fact and Conclusions of Law; see also Order (July 30, 

2021). 

12 Throughout their brief, Respondents assert numerous arguments with limited or no explanation or supporting 

authority. For instance, Respondents generally reference the concept of “quasi-estoppel,” see Opp. at 19, but they 

cite no authority or otherwise explain how they contend the concept might apply. Consequently, Respondents 

waived this argument, along with the many other undeveloped arguments that appear throughout their brief. See, 

e.g., LabMD, Inc., 2016 WL 4128215, at n.85 (F.T.C. July 28, 2016) (finding that an argument presented in a single 

sentence that included only one case citation, “no evidence in support,” and “no explanation of the basis for [the] 

argument” was waived). 

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solely on ambiguity in the heading of Section II.H of the Stipulated Order. See FTC v. Health 

Research Labs, LLC, No. 17-cv-467, 2020 WL 4431497, at *7 (D. Me. July 31, 2020); 2020 WL 

8679976, at *2 (D. Me. Aug. 12, 2020). It did not address whether Respondents’ ad claims were 

false or deceptive, or whether Respondents violated Section III of the Stipulated Order. Further, 

the Court did not address any factual issues. 

Under the doctrine of res judicata, “a final judgment on the merits precludes parties from relitigating claims that were or could have been brought in a prior action.” Universal Ins. Co. v. 

Off. of Ins. Comm’r, 755 F.3d 34, 37 (1st Cir. 2014); see also McCurry, 449 U.S. at 94. Again, 

this doctrine is inapplicable here. First, the Court did not treat its dismissal of the FTC’s 

contempt motion as a final judgment, but rather ruled the FTC could file a motion seeking 

permission to file an amended contempt motion based on an alternative theory if it wished to do 

so. See Order on Defendants’ Motion for Attorney Fees, FTC v. Health Research Laboratories, 

LLC, No. 2:17-cv-00467, Dkt. 58, slip op. at 7, n.5 (Jan. 20, 2021) (observing dismissals without 

prejudice with leave to amend are generally not treated as final judgments) (quoting Lichoulas v. 

City of Lowell, 555 F.3d 10, 13 (1st Cir. 2009)). Further, the FTC’s decision not to file an 

amended contempt action in Maine was essentially a voluntary dismissal,13 which does not have 

any preclusive effect. See, e.g., Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 

(2001) (explaining that a dismissal without prejudice ordinarily does not bar the refiling of 

claims in the same court or different courts). 

 

13 See Plumberman, Inc. v. Urban Sys. Dev. Corp., 605 F.2d 161, 162 (5th Cir. 1979) (holding that, where court 

gave plaintiff ten days to amend, and plaintiff did not, it was the equivalent of a voluntary dismissal without 

prejudice and had no res judicata effect). 

 

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Finally, even if Respondents could establish the elements of res judicata, the doctrine would 

not bar this action because the FTC could not have asserted claims based on violations of the 

FTC Act in the earlier contempt proceeding. See Restatement (Second) of Judgments § 26(1)(c); 

Nabisco, Inc. v. Amtech Int’l, Inc., No. 95-Civ-9699, 2000 WL 35854, at *9 (S.D.N.Y. Jan. 18, 

2000) (“Because Nabisco could not have brought its infringement claim in the contempt action, 

its apparent defeat with respect to [defendant] in that action does not bar subsequent prosecution 

of this claim.”). 

B. Undisputed Facts Demonstrate the Likelihood of Respondents’ Future 

Violations. 

 Respondents argue Complaint Counsel must prove their unlawful practices are likely to 

reoccur in order to obtain relief, and that no such finding is possible when they “voluntarily” 

discontinued advertising for the Challenged Products in September 2019. Opp. at 12-13.14 

These arguments fail for several reasons. 

First, Respondents “unconditionally waive[d]” their mootness defense, which asserted

“all alleged conduct referenced in the Complaint ceased more than a year prior to the filing of the 

Complaint and will not recur in the future.” Waiver (Feb. 25, 2021) (emphasis added). The 

Commission should not permit Respondents to defend against relief using a factual predicate that 

contradicts their express waiver. 

Second, there is more than sufficient evidence to establish Respondents’ deceptive 

advertising practices are likely to reoccur. Specifically, the undisputed evidence demonstrates: 

(1) the Stipulated Order did not deter Respondents from disseminating the deceptive ads in this 

 

14 Respondents also suggest, without explanation, that issuance of the Complaint was not “statutorily authorized” 

because the challenged advertising was discontinued. Opp. at 7. Respondents asserted a “mootness and lack of 

statutory authority” defense in their Answer, but subsequently waived it. See Waiver (Feb. 25, 2021); Answer, ¶ 24; 

Amended Answer. 

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proceeding; (2) this is the second enforcement action filed against Duhon and HRL in less than 

three years; (3) this case does not involve an isolated mistake, but challenges four different ads, 

each of which is packed with unsubstantiated disease-related claims; and (4) Respondents refuse 

to accept responsibility for their conduct and instead blame the agency for investigating and 

litigating to prevent their persistent violations of the law.15 See, e.g., Answer (Dec. 4, 2020) 

(“Respondents have done nothing wrong...[.]”). Moreover, Duhon’s assertion that HRL’s and 

WBS’s business activities were shut down at some unspecified time and that the companies

“have no intention of continuing any future business operations” does not mean they cannot 

easily resume operations or set up a new company peddling products with unsubstantiated 

disease claims. Opp., RX1 ¶ 39. 

Third, it is well established that mere discontinuance of an illegal practice does not 

preclude the issuance of a cease-and-desist order in an administrative case. See, e.g., Sears, 

Roebuck and Co., et al., 95 F.T.C. 406, 1980 WL 338970, at *85-86 (Apr. 28, 1980) (voluntary 

cessation of advertising campaign is “neither a defense to liability, nor grounds for omission of 

an order”); Giant Food, Inc., 61 F.T.C. 326, 1962 WL 75443, at *23 (July 31, 1962) (“That 

discontinuance of an unlawful practice, of itself, does not necessarily preclude the issuance of a 

cease and desist order is so well settled as to preclude further argument.”) (citation omitted). 

Fourth, this proceeding does not involve long-past conduct. Respondents claim they 

discontinued advertising for the Challenged Products in September 2019, slightly more than one 

year before the Commission issued the Complaint. The three decisions Respondents rely on 

 

15 Respondents emphasize Oregon-Washington Plywood Co. v. FTC, 194 F.2d 48 (9th Cir. 1952), but there the 

Ninth Circuit specifically recognized the necessity of a cease-and-desist order following discontinuation depends on 

“a consideration of all the surrounding facts and circumstances ... [including] elements of time, volition, and general 

attitude of the respondents in respect of the cessation...[.]”). Id. at 50-51. 

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each involved substantially lengthier periods between discontinuation of the unlawful conduct 

and issuance of the order. See New Standard Pub. Co., Inc. v. FTC, 194 F.2d 181, 182-83 (4th 

Cir. 1952) (vacating order and remanding for fact-finding as to necessity of order when more 

than ten years elapsed between conduct and order); Dejay Stores, Inc. v. FTC, 200 F.2d 865 (2d 

Cir. 1952) (affirming order when at least five years elapsed between challenged activities and 

order); Oregon-Washington Plywood Co. v. FTC, 194 F.2d 48, 49 (9th Cir. 1952) (vacating order 

when more than six years elapsed between charged conduct and filing of administrative 

complaint).16 

Finally, Respondents falsely portray themselves as voluntarily discontinuing their

advertising “years ago.” Opp. at 12. However, the undisputed facts show Respondents only 

stopped advertising the Challenged Products in September 2019 during final consent 

negotiations, id. at 5, eighteen months after FTC staff sent the first requests for information in the 

contempt investigation, Opp. at 3; CCX4, Averill Aff., Att. K, p. 3.17 Such reluctant cessation in 

the midst of an investigation is not “voluntary” discontinuation and does nothing to dispel 

concerns about future reoccurrence. See Diener’s, Inc., 81 F.T.C. 945, 1972 WL 127481, at *29 

(Dec. 21, 1972) (“Where, as here, the abandonment took place only after the Commission’s hand 

was on the respondent’s shoulder, the courts are clear that abandonment of the practices ... will 

not support a conclusion that the practices will not be resumed.”) (quoting Zale Corp., 78 F.T.C. 

1195, 1971 WL 128767, at *31 (1971)); FTC v. Sage Seminars, Inc., No. C 95-2854-SBA, 1995 

 

16 Respondents’ reliance on Dejay Stores, Inc. v. FTC, 200 F.2d 865 (2d Cir. 1952) is particularly puzzling because 

the court affirmed a Commission order issued at least five years after respondents stopped mailing deceptive forms, 

reasoning it should “interfere with the Commission’s discretion in making an order to prevent the resumption of a 

discontinued practice only when it appears that the practice has been ‘surely estopped.’” Id. at 867.

17 Respondents’ assertion they stopped selling the challenged products in September 2019 is false, and tellingly 

unsupported by any evidentiary citation. Opp. at 5. 

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WL 798938, at *6 (N.D. Cal. Nov. 2, 1995) (finding “defendants’ claimed cessation of conduct 

[which] occurred only after defendants learned that the FTC had commenced an investigation” 

could “hardly be considered ‘voluntary’”). 

V. Respondents’ Challenges to Specific Proposed Relief Provisions 

A. Section I (Proposed Supplement Ban)

Respondents concede that, if the Commission issues any relief, the relief in Section I is 

appropriate. See Opp. at 20. 

B. Section II (Proposed Disease Claim Ban)

Respondents advance several baseless arguments against the proposed disease claim ban. 

First, they contend the provision is “overbroad” because it could apply to “anything” from 

“sneakers” to “toothbrushes.” Opp. at 21. Respondents confuse the fact that Section II is 

broad—and it is—with whether it is overbroad, which it is not. As Complaint Counsel’s opening 

brief explained, given Respondents’ serious, deliberate, and highly transferable deceptive 

practices, the proposed relief can and should apply to any product for which Respondents make 

disease claims. See C.C. Br. at 8-13. Deceptive disease claims are a particularly serious form of 

wrongdoing because they can hurt consumers physically as well as financially. See United 

States v. Rutherford, 442 U.S. 544, 556 (1979) (“[I]f an individual suffering from a potentially 

fatal disease rejects conventional therapy in favor of a drug with no demonstrable curative 

properties, the consequences can be irreversible.”). Additionally, the prior Stipulated Order 

shows Respondents knew about their obligation to have competent and reliable evidence to 

substantiate any health claims, and a consultant warned them about their advertising—both facts 

that establish deliberateness. See C.C. Br. at 11. Moreover, Respondents did not limit their 

deception to a single product, and deceptive disease claims are highly transferable. As 

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Respondents themselves observe, there are many products other than supplements about which 

they might make disease claims. These facts, along with others Respondents have admitted or 

conceded, see C.C. Br. at 8-13, establish the proposed relief is “reasonably related” to the 

wrongdoing.18 See Jacob Siegel Co. v. FTC, 327 U.S. 608, 612-13 (1946). 

Second, Respondents contend Section II is “vague” because it applies to “any product” and 

covers claims about “any disease.” However, Respondents conflate vagueness with alleged 

overbreadth. Respondents do not assert Section II is insufficiently “clear and precise.” See FTC 

v. Colgate-Palmolive Co., 380 U.S. 374, 392 (1965). Rather, they argue a second time that it is 

too broad—which is wrong for the reasons already discussed.19 

Third, Respondents raise cursory First Amendment arguments. Specifically, Respondents 

contend Section II is a prior restraint, but tellingly fail to address authority indicating that the 

 

18 In a different subsection of their argument, Respondents briefly assert that the disease claim ban is overbroad 

because it applies to “Food” and “Drugs” yet Respondents did not make representations regarding food or drugs. 

Opp. at 23. As Complaint Counsel explained, see C.C. Br. at 7-19, broad fencing-in relief is appropriate here given 

Respondents’ serious, deliberate and readily-transferable wrongdoing. See C.C. Br. at 7-19. The compelling reasons 

for banning Respondents from making disease claims concerning any product apply with particular force to food 

and drugs because Respondents can transfer their deceptive business model to such products very easily. 

19 Without developing the argument, Respondents also suggest Section II is problematic because it is “not contained 

in the Complaint.” Opp. at 21. In fact, Respondents challenge numerous proposed findings and order provisions on 

this ground. Opp. at 14, 15, 16, 18, 26-27. However, as long as Respondents have notice and fair opportunity to 

respond, due process is satisfied. See, e.g., NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 353 (1938) (rejecting 

argument that the agency’s “findings do not follow the pleadings” where the respondent “understood the issue and

was afforded full opportunity” to litigate it); see also Nat’l Realty & Const. Co. v. Occupational Safety & Health 

Rev. Comm’n, 489 F.2d 1257, 1264 (D.C. Cir. 1973) (“So long as fair notice is afforded, an issue litigated at an 

administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely

raise the issue.”). Respondents had notice of what relief Complaint Counsel would seek and, in fact, they are 

responding now. Respondents also point to Rule 3.11, which requires that complaints contain “[a] clear and concise 

factual statement sufficient to inform each respondent with reasonable definiteness of the type of acts or practices 

alleged to be in violation of the law” and a form proposed order “[w]here practical.” 16 C.F.R. § 3.11(b)(2),(3); see 

also Polypore Int’l, Inc., 2008 WL 5195813, at *2 (F.T.C. Dec. 4, 2008) (ALJ order). But Rule 3.11 does not 

require the Complaint to contain all facts the Commission ultimately might find, and it recognizes that attaching a 

proposed order to the Complaint will not always be practical. Thus, neither due process nor Rule 3.11 prohibits the 

Commission from finding facts or ordering relief that the Complaint does not contain. See also Order (July 30, 

2021) at 3 (explaining Rule 3.12(b) does not “prohibit[] the Commission from considering facts outside the 

pleadings but established in the record where appropriate”). 

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presumption against the validity of prior restraints “does not apply in the commercial speech 

context.” Puerto Rico Tele-Com, Inc. v. Ocasio Rodriguez, 747 F. Supp. 836, 842 (D.P.R. 

1990); see also Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 

557, 571 n.13 (1980) (“[C]ommercial speech is such a sturdy brand of expression that traditional 

prior restraint doctrine may not apply to it.”) (citations omitted); Friedman v. Rogers, 440 U.S. 1, 

10 (1979) (noting the unique attributes of commercial speech may “make inapplicable the 

prohibition against prior restraints”) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens 

Consumer Council, Inc., 425 U.S. 748, 772 n.24 (1976)).20 Respondents also ignore the fact

that, even if the prior restraint doctrine did apply—and it does not—Section II is a “subsequent 

punishment,” not a prior restraint in a First Amendment analysis. See, e.g., Nat’l Fed’n of the 

Blind v. FTC, 303 F. Supp. 2d 707, 723 (D. Md. 2004) (holding that a TSR prohibition was a 

“typical subsequent punishment” rather than a prior restraint). 

Additionally, Respondents assert, without explanation, Section II does not satisfy the Central 

Hudson test. However, and again tellingly, Respondents do not respond to Complaint Counsel’s 

prior argument that, given the admitted and conceded facts, the proposed bans clearly satisfy 

Central Hudson. See C.C. Br. at 22-24. The only specific argument Respondents make is that 

Section II does not advance the governmental interest in consumer protection because 

Respondents have stopped the challenged practices. Even assuming that Respondents fully 

halted their deceptive practices when the FTC started investigating—which they did not—a 

 

20 Respondents cite a single case, New York Magazine v. Metro. Transp. Auth., 136 F.3d 123 (2d Cir. 1988), for the 

notion that prior restraint doctrine applies to commercial speech. However, New York Magazine involved mixed 

commercial and political advertising “and evidence that the [government] was targeting the political element of [the] 

advertisement.” Infinity Outdoor, Inc. v. City of N.Y., 165 F. Supp. 2d 403, 427-28 (E.D.N.Y. 2001) (distinguishing 

New York Magazine on multiple grounds including that it involved a political component that the government had 

targeted); see also Bellion Spirits, LLC v. United States, 393 F. Supp. 3d 5, 30 (D.D.C. 2019) (distinguishing New 

York Magazine on similar grounds), aff’d, 7 F.4th 1201 (D.C. Cir. 2021). 

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wrongdoer’s cessation of unlawful conduct when caught does not weigh against broad relief. 

Furthermore, Respondents’ willingness to flout the Stipulated Order in the first place suggests 

they may resume at some point. Protecting the public from that risk substantially advances the 

government’s interest in consumer protection. In short, none of Respondents’ challenges to 

Section II has any merit. 

C. Sections III, IV, and V 

Respondents’ brief addresses the next three proposed order sections collectively but does not 

contain argument other than asserting that the Commission should reject them “for the same 

reasons” as Section II. Opp. at 23. As discussed above, however, Section II is a lawful and 

appropriate use of the Commission’s authority. 

D. Sections VI Through XII

Respondents scattershot several different meritless arguments with respect to remaining 

provisions in the Proposed Order. First, they contend the proposed scofflaw requirements are 

unauthorized because the Commission lacks the power to order affirmative relief. However, 

Respondents do not address the text of the FTC Act itself (which refers to “affirmative relief 

provision[s]” in Commission orders, see 15 U.S.C. § 45(b)) or decisions holding that the 

Commission “may order affirmative acts,” Heater v. FTC, 503 F.2d 321, 324 n.7 (9th Cir. 1974). 

See also Warner-Lambert Co. v. FTC, 562 F.2d 749, 756-57 (D.C. Cir. 1977). Respondents cite 

only LabMD, Inc. v. FTC, 894 F.3d 1221 (11th Cir. 2018), but LabMD had nothing to do with 

the Commission’s authority to issue affirmative relief. See id. at 1236 (finding order 

unenforceable because it required respondent to meet “an indeterminate standard of 

reasonableness” rather than requiring “a specific act or practice”). Put simply, the Commission 

has the power to require affirmative acts, including appropriate scofflaw provisions. 

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Second, Respondents complain the Proposed Order governs their conduct for twenty years. 

A twenty-year duration reasonably relates to Respondents’ wrongdoing because Respondents are 

recidivists who made unsubstantiated disease claims despite a federal court order expressly 

requiring substantiation. See C.C. Br. at 12-13. Indeed, that Stipulated Order’s key provisions—

which already failed to restrain Respondents—has no duration at all. See Stipulated Order, FTC 

v. Health Research Laboratories, LLC, No. 2:17-cv-467, Dkt. 15 (D. Me. Jan. 16, 2018). 

Furthermore, because unsubstantiated disease claims can harm consumers physically as well as 

financially, the risks associated with further recidivism are high. See Daniel Chapter One, 2009 

WL 5160000, at *4 (F.T.C. Dec. 24, 2009) (ordering twenty-year duration for most provisions in 

matter involving deceptive health claims made by supplement manufacturer). Given the nature 

of Respondents’ wrongdoing, another indefinite order would be appropriate, but the 

Commission’s regulations limit orders to twenty-year durations. See 16 C.F.R. § 3.72(b)(3)(i).21 

Third, Respondents argue various scofflaw provisions were “unpled.” Opp. at 26. However, 

due process requires only that Respondents have notice and an opportunity to respond, not that 

the relief ultimately issued appear in the complaint. See, e.g., Mackay Radio, 304 U.S. at 353; 

Nat’l Realty, 489 F.2d at 1264. Through the Proposed Order, Respondents received notice of 

what Complaint Counsel proposes, and they have had an opportunity to respond. 

Finally, Respondents disingenuously assert various provisions are “vague.” For example, 

Respondents feign confusion over the purported requirement Respondents “somehow create 

records ‘that tend to show any lack of compliance by Respondents with this Order.’” Opp. at 25. 

Respondents excise this language from Section XI, which identifies categories of records

 

21 Notably, Respondents concede that, if any relief is appropriate—and it is—the supplement ban (Section I) is 

appropriate. It has a twenty-year duration, and the scofflaw provisions operate in part to ensure compliance with 

that ban. 

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Respondents must “create and retain.” In context, it is clear the Proposed Order would require 

Respondents to retain such records, not create them (by way of further illustration, Section XI 

requires Respondents to “retain” consumer complaints, but no one would think it also requires 

Respondents to “create” such complaints). 

Respondents also claim that Section VII’s requirement that they authorize Commission 

representatives to interview “anyone affiliated” with Respondents means that they would have to 

direct their “spouses” or “priests” to appear. See Opp. at 25-26. This is an insincere reading of 

unambiguous language; “spouses” and “priests” are plainly not commercial “affiliates.” 

VI. Conclusion 

For the reasons set forth above, Respondents’ belated effort to abandon and contradict 

their previous Rule 3.12(b)(2) admissions should be rejected as untimely and improper. Further, 

most of the new additional facts Respondents proffer are unsupported, irrelevant, and disputed 

by Complaint Counsel. In contrast, Complaint Counsel has proffered findings of fact, based on 

Respondents’ admissions as well as additional facts undisputed by Respondents, which are 

sufficient to establish liability and the necessity of the Proposed Order. Accordingly, the 

Commission should issue its final decision and enter the Proposed Order. 

However, in the event the Commission were to determine that Respondents be permitted 

to withdraw or limit their Rule 3.12(b)(2) admissions, Complaint Counsel requests permission to 

file a motion to amend the Complaint with the Commission.22 Following the Commission’s 

resolution of that motion, a remand for additional fact and expert discovery may be 

 

22 The Rules of Practice did not provide any way for Complaint Counsel to appeal Judge Chappell’s denial of their 

Motion to Certify Rulings for Interlocutory Appeal related to Complaint Counsel’s earlier Motion to Amend the 

Complaint. See Order Denying Motion for Interlocutory Appeal (April 2, 2021). 

 

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appropriate.23 

Dated: October 8, 2021 Respectfully submitted, 

s/ Elizabeth J. Averill

 Elizabeth J. Averill

 Jonathan Cohen 

 Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

 (202) 326-2993 (Averill); -2551 (Cohen) 

 Eaverill@ftc.gov; Jcohen2@ftc.gov 

 (202) 326-3197 (facsimile) 

 Complaint Counsel 

 

23 Issues for discovery in any future remand could include substantiation or lack of substantiation for the challenged 

advertising claims, facts relevant to the deliberateness and seriousness of Respondents’ conduct, development and 

approval of the challenged products and advertisements, Respondents’ marketing and advertising strategy, when 

Respondents stopped selling the challenged products, Kramer Duhon’s current and previous business activities, as 

well as Respondents’ knowledge of, and compliance or lack of compliance with, the Stipulated Order. 

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CERTIFICATE OF SERVICE

I certify that I served a copy of Complaint Counsel’s Response to Respondents’ 

September 10, 2021 Submission and supporting attachments today via electronic mail. 

Joel Reese

Joshua Russ 

Reese Marketos LLP

750 N. Saint Paul St., Suite 600 

Dallas, TX 75201 

Joel.reese@rm-firm.com

Josh.russ@rm-firm.com

I also served one electronic copy via the Administrative E-Filing System and one electronic 

courtesy copy to the Office of the Secretary via email to ElectronicFilings@ftc.gov. 

I served one electronic courtesy copy via email to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave, N.W., Room H-110 

Washington, DC 20580 

 s/ Elizabeth J. Averill 

Elizabeth J. Averill 

Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

 (202) 326-2993; eaverill@ftc.gov

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CCX4 – Averill Affidavit

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Lina M. 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 DOCKET NO. 9397 

KRAMER DUHON, 

individually and as an officer of

HEALTH RESEARCH LABORATORIES, LLC 

and WHOLE BODY SUPPLEMENTS, LLC.

________________________________________________ 

AFFIDAVIT OF ELIZABETH J. AVERILL 

I, Elizabeth J. Averill, hereby state that I have personal knowledge of the facts set forth 

below. If called as a witness, I could and would testify as follows: 

1. I am a United States citizen and am over eighteen years of age. I am employed by 

the Federal Trade Commission (“FTC”) as an attorney in the Division of Enforcement, Bureau of 

Consumer Protection. I am acting as Complaint Counsel in the above-captioned matter. I also

worked on the investigation and the FTC’s previous contempt proceeding against Health 

Research Laboratories, LLC (“HRL”), Whole Body Supplements, LLC, and Kramer Duhon. 

2. On July 1, 2019, my co-counsel, Robert Frisby, and I sent a letter to Andrew 

Lustigman, former counsel representing HRL and Kramer Duhon, outlining deficiencies in their 

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2 

previous responses to information requests during our compliance investigation. A true and 

correct copy of this letter is attached as Attachment G. 

3. On June 6, 2019, Robert Frisby and I sent a letter to Andrew Lustigman. A true 

and correct copy of this letter is attached as Attachment H. 

4. On September 4, 2019, Robert Frisby and I sent a letter to Andrew Lustigman 

notifying him we planned to recommend that the Commission initiate a contempt proceeding. A 

true and correct copy of this letter is attached as Attachment I. 

5. On September 19, 2019, I sent an email to Andrew Lustigman regarding various 

issues, including staff concerns about his clients’ continued website advertising for The Ultimate 

Heart Formula, Black Garlic Botanicals, BG-18, and Neupathic. A true and correct copy of this 

email is attached as Attachment J. 

6. On September 27, 2019, Andrew Lustigman sent me a letter. A true and correct 

copy of this letter is attached as Attachment K. 

7. On August 8, 2019, HRL and Kramer Duhon produced to Robert Frisby and I, in 

response to our requests for information during the contempt investigation, a document 

spreadsheet containing revenue information for Black Garlic Botanicals, BG-18, The Ultimate 

Heart Formula, and Neupathic for the period 1/1/18 to 5/31/19. This document was Bates 

stamped HRL008148, and a true and correct copy is attached as Attachment L. 

8. On September 27, 2019, HRL and Kramer Duhon produced to Robert Frisby and 

I, in response to our requests for information during the contempt investigation, a document 

containing additional revenue information for Black Garlic Botanicals, BG-18, The Ultimate 

Heart Formula, and Neupathic for the period from 6/1/19 to 9/24/19. This document was Bates 

stamped HRL008163, and a true and correct copy is attached as Attachment M. 

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9. During the course of discovery in this proceeding, I received a document 

production from Respondents in January 2021 that contained, among other things, an Excel 

spreadsheet file entitled HRLAC_03394. The data from this Excel spreadsheet is included in 

Attachment N. However, the Excel spreadsheet’s formatting has been adjusted by Complaint 

Counsel to make the data legible in a one-page exhibit. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct. 

Executed on: October 8, 2021 /s/ Elizabeth J. Averill 

Alexandria, VA 

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Averill Affidavit – Attachment G 

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Bureau of Consumer Protection

 Division of Enforcement

 Robert M. Frisby

Attorney

Email: rfrisby@ftc.gov 

 Direct Dial: 202-326-2098

 

July 1, 2019 

VIA ELECTRONIC MAIL 

Andrew B. Lustigman, Esq. 

Olshan Frome Wolosky LLP 

1325 Avenue of the Americas

New York, NY 10019 

ALustigman@olshanlaw.com 

Re: FTC and State of Maine v. Health Research Laboratories, LLC, FTC No. X180007 

Dear Mr. Lustigman: 

 We are writing in response to your letter of June 20, 2019. Your letter asserts that you 

have provided “numerous and robust responses” to the “Commission’s multiple requests for 

additional information.” You further state that you “object to the Commission’s premise that our 

prior response was somehow deficient.” We have sent you multiple letters seeking information 

from defendants in part because your responses have failed to provide all of the documents or 

information specified in our letters. 

 Specifically, the defendants have failed to comply fully with section XIX of the Order in 

the following respects: 

1. As I reminded you in my June 6, 2019 letter, section XIX requires the defendants to 

provide true, accurate, and complete responses under penalty of perjury in 

compliance with 28 U.S.C. § 1746. Defendants have failed to comply with this 

requirement with respect to all of their responses that we have received during 2019. 

Statements by counsel do not suffice under section XIX. 

2. My June 6 letter (as well as my December 2018 letter) sought the revenue figures for 

Black Garlic Botanicals, BG-18, Ultimate Heart Formula, and Neupathic since entry 

of the Order. On June 21, defendants only provided revenue figures for these 

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

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products related to “US mailers.” It thus appears that the defendants have yet to 

provide complete revenue figures for these four products. Please provide complete 

revenue figures for these four products immediately. If they wish, Defendants may 

elaborate on how they generated the revenue or explain the percentage of revenue 

attributable to American customers or recipients of brochures mailed in the United 

States. 

3. As explained in more detail in my June 6 letter, we have not identified in your 

submissions any human clinical testing of Black Garlic Botanicals, BG-18, Ultimate 

Heart Formula, Neupathic, or any essentially equivalent product as defined in the 

Order, satisfying the requirements of section II of the Order with respect to the 

diseases listed in my letter. My last letter directed the defendants to identify any 

human clinical studies satisfying the section II requirements. Defendants have yet to 

identify any such studies or concede that none of the studies they submitted satisfy 

the section II requirements. If defendants contend that any of the studies they 

submitted satisfy the requirements of section II, please identify the specific studies 

that do so. If you do not contend that any of the submitted studies satisfy the section 

II requirements, please so state.

4. You also failed to provide an adequate response to the final question posed in my 

June 6 letter. We asked you to verify whether defendants disseminated the attached 

brochure (FTC0001-FTC0016) after entry of the January 2018 order. Your response 

stated that the defendants mailed the brochure “on a sporadic and irregular basis and 

in a small amount.” Please verify whether the defendants disseminated the brochure 

attached to our June 6 letter, marked as FTC0001-FTC0016, after entry of the Order 

in January 2018. 

5. My December 2018 letter sought from defendants “The chargeback, return, and 

refund volume and rate for each product listed in item one above, and the overall 

chargeback, return, and refund volume and rate, since entry of the Order in January 

2018.” We also demanded that defendants produce “[a]ny complaint received by the 

defendants from a consumer, the Better Business Bureau, or any law enforcement 

agency referring or relating to the defendants’ ‘free trial guarantee,’ any other refund 

offer, or any failure to provide a refund since entry of the Order in January 2018.” 

Subsequently, in March 2019, we narrowed this latter item to any “complaint or other 

correspondence received by the defendants from a consumer since entry of the Order 

in January 2018 either: (1) inquiring about, questioning, or disputing a credit card or 

other charge or account debit; or (2) asserting that defendants: (A) misrepresented, 

failed to disclose, or failed to disclose adequately the terms of its “free trial 

guarantee” or any other refund offer, or (B) failed to provide a refund.” 

Although defendants eventually submitted documents related to Better Business 

Bureau complaints and other documents relating to individual chargebacks and 

refunds, they did not submit any aggregate data showing chargeback rates and refund 

volume. Nor did they offer any valid explanation for their failure to provide this data. 

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Defendants also failed to provide any documents reflecting complaints made directly 

by consumers to HRL or its agents (i.e., business records related to complaints that 

consumers submitted by email, mail, or by phone). 

If you have any questions, please contact me at (202) 326-2098 or rfrisby@ftc.gov, or 

Elizabeth Averill at 202-326-2993 or eaverill@ftc.gov. 

 Sincerely, 

 

/s/ Robert M. Frisby

 Robert M. Frisby 

CC: DEbrief@ftc.gov

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Averill Affidavit – Attachment H

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Averill Affidavit – Attachment I

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Averill Affidavit – Attachment J

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From: Averill, Elizabeth

To: "Lustigman, Andrew B."; Shaffer, Scott A.

Cc: Frisby, Robert M.; Brendan O"Neil

Subject: RE: Health Research Laboratories, LLC (FTC No. X180007)

Date: Thursday, September 19, 2019 10:03:00 AM

Andy and Scott,

In order to make sure we all have the same expectations, I am sending along a quick summary of our

conversation yesterday.

First, it is our understanding that you will submit additional revenue information for Neupathic,

Ultimate Heart Formula, BG-18, and Black Garlic Botanicals for June-September 2019 as well as

some additional studies next week.

During the call yesterday, you advised us that your clients are no longer “affirmatively marketing”

Neupathic, Ultimate Heart Formula, BG-18, or Black Garlic Botanicals. Please clarify in your

submission next week what that means (mailed brochures, telemarketing, other type of advertising or

marketing) and the specific timing of any changes in the advertising or marketing of the four

products. You previously advised us that marketing of Ultimate Heart Formula was discontinued

last year. You also indicated yesterday that BG-18, Black Garlic Botanicals, and Neupathic are only

being sold to consumers who previously enrolled in continuity programs. However, we checked the

websites yesterday and found that your clients are still advertising and selling Ultimate Heart

Formula, Neupathic, BG-18, and Black Garlic Botanicals to consumers.

Second, you also requested the opportunity to submit a white paper discussing HRL’s compliance

efforts and plan to submit that no later than October 11. Please be specific in your submission about

identifying the timing of when various compliance efforts were initiated or performed.

Finally, we explained during the call that we are authorized to discuss the possibility of settlement

with your clients for a limited period of time ending on November 4.

Best regards,

Elizabeth J. Averill

Federal Trade Commission

Bureau of Consumer Protection, Enforcement Division

202-326-2993

From: Lustigman, Andrew B. <ALustigman@olshanlaw.com> 

Sent: Tuesday, September 17, 2019 10:42 AM

To: Averill, Elizabeth <eaverill@ftc.gov>; Frisby, Robert M. <RFRISBY@ftc.gov>; Brendan O'Neil

<brendan.oneil@maine.gov>

Cc: Shaffer, Scott A. <SShaffer@olshanlaw.com>

Subject: RE: Health Research Laboratories, LLC (FTC No. X180007): Settlement Communication

How about 11 am tomorrow?

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 39 of 53 * PUBLIC *
Andrew B. Lustigman

O L S H A N

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

(Entrance is on 53rd Street between Sixth and Seventh Avenues)

New York, NY 10019

Direct: 212.451.2258

Facsimile: 212.451.2222

Email: ALustigman@olshanlaw.com

Web: www.olshanlaw.com

From: Averill, Elizabeth [mailto:eaverill@ftc.gov] 

Sent: Tuesday, September 17, 2019 10:41 AM

To: Lustigman, Andrew B. <ALustigman@olshanlaw.com>; Frisby, Robert M. <RFRISBY@ftc.gov>;

Brendan O'Neil <brendan.oneil@maine.gov>

Cc: Shaffer, Scott A. <SShaffer@olshanlaw.com>

Subject: RE: Health Research Laboratories, LLC (FTC No. X180007): Settlement Communication

Andy,

Could we plan to talk sometime between 10 and 2:30 tomorrow or Thursday?

Best,

Liz

From: Lustigman, Andrew B. <ALustigman@olshanlaw.com> 

Sent: Tuesday, September 17, 2019 10:19 AM

To: Frisby, Robert M. <RFRISBY@ftc.gov>; Averill, Elizabeth <eaverill@ftc.gov>; Brendan O'Neil

<brendan.oneil@maine.gov>

Cc: Shaffer, Scott A. <SShaffer@olshanlaw.com>

Subject: RE: Health Research Laboratories, LLC (FTC No. X180007): Settlement Communication

Robert –

Can we set up a call to discuss the matter. Thanks.

Andy

Andrew B. Lustigman

O L S H A N

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

(Entrance is on 53rd Street between Sixth and Seventh Avenues)

New York, NY 10019

Direct: 212.451.2258

Facsimile: 212.451.2222

Email: ALustigman@olshanlaw.com

Web: www.olshanlaw.com

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 40 of 53 * PUBLIC *
From: Frisby, Robert M. [mailto:RFRISBY@ftc.gov] 

Sent: Thursday, September 12, 2019 10:19 AM

To: Lustigman, Andrew B. <ALustigman@olshanlaw.com>; Averill, Elizabeth <eaverill@ftc.gov>;

Brendan O'Neil <brendan.oneil@maine.gov>

Cc: Shaffer, Scott A. <SShaffer@olshanlaw.com>

Subject: RE: Health Research Laboratories, LLC (FTC No. X180007): Settlement Communication

Thank you for your response. We look forward to hearing from you after you confer with your

clients next week.

From: Lustigman, Andrew B. <ALustigman@olshanlaw.com> 

Sent: Wednesday, September 11, 2019 5:18 PM

To: Frisby, Robert M. <RFRISBY@ftc.gov>; Averill, Elizabeth <eaverill@ftc.gov>; Brendan O'Neil

<brendan.oneil@maine.gov>

Cc: Shaffer, Scott A. <SShaffer@olshanlaw.com>

Subject: Health Research Laboratories, LLC (FTC No. X180007): Settlement Communication

Robert –

I have reviewed your letter and proposed modified order. While we do not believe that contempt is

an appropriate remedy here, my clients remain interested in resolving the FTC’s and the State of

Maine’s concerns and would like to engage in settlement discussion. To that end, I am scheduled

to meet with my clients early next week to fully discuss the matter. I would like the opportunity to

do so first, and then schedule a call shortly thereafter. I will follow up promptly.

Best,

Andy

Andrew B. Lustigman

O L S H A N

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

(Entrance is on 53rd Street between Sixth and Seventh Avenues)

New York, NY 10019

Direct: 212.451.2258

Facsimile: 212.451.2222

Email: ALustigman@olshanlaw.com

Web: www.olshanlaw.com

From: "Frisby, Robert M." <RFRISBY@ftc.gov>

Date: September 4, 2019 at 4:57:03 PM EDT

To: "Lustigman, Andrew B." <ALustigman@olshanlaw.com>

Cc: "Averill, Elizabeth" <eaverill@ftc.gov>, Brendan O'Neil

<brendan.oneil@maine.gov>, DEbrief <DEbrief@ftc.gov>

Subject: Health Research Laboratories, LLC (FTC No. X180007)

Please find the attached letter and proposed modified order.

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 41 of 53 * PUBLIC *
Robert M. Frisby

Attorney

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

Washington, D.C. 20580

Tel: 202-326-2098

rfrisby@ftc.gov

____________________________________________________________

Electronic transmissions by the law firm of Olshan Frome Wolosky LLP may contain information that is confidential or proprietary, or

protected by the attorney-client privilege or work product doctrine. If you are not the intended recipient, be aware that any disclosure,

copying, distribution or use of the contents hereof is strictly prohibited. If you have received this transmission in error, please notify

Olshan Frome Wolosky LLP at once at 212.451.2300.

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 42 of 53 * PUBLIC *
Averill Affidavit – Attachment K

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 43 of 53 * PUBLIC *
EMAIL: ALUSTIGMAN@OLSHANLAW.COM

DIRECT DIAL: 212.451.2258

5165150-1

September 27, 2019 

VIA E-MAIL 

Elizabeth Averill, Esq. 

Federal Trade Commission 

Bureau of Consumer Protection 

Division of Enforcement 

Washington, D.C. 20580

E-mail: eaverill@ftc.gov

Re: Health Research Laboratories, LLC (FTC No. X180007) 

Dear Elizabeth:

This letter and the accompanying materials is sent as a settlement communication and 

follows up on our most recent conference call. 

The first enclosure accompanying this letter is an Excel file containing current revenue 

figures for BG-18, Black Garlic Botanicals, Ultimate Heart Formula and Neupathic from June 1, 

2019 through September 24, 2019, which, as per your request, update the figures previously 

provided to your office. 

We are also enclosing a claims substantiation overview containing basic product 

information and a table of studies that addresses the Black Garlic Botanicals and BG-18 

products. This overview refers to certain studies, also produced herewith. Please note that the 

column on the table that is entitled “Claim” does NOT constitute any admission that a particular 

claim was actually or even impliedly contained in any of our client’s marketing materials. 

Rather, the table is an attempt to organize, for the FTC’s convenience, the various studies 

supporting the efficacy of the black garlic products in relation to the FTC’s latest allegations.

The third group of materials are the studies themselves. Eleven studies are included, 

most-- but not all-- of which were contained in prior submissions to your office. In particular, we 

draw your attention to the following three: 

Ried K., Travica N., Sali A. 2016 (PMID 26869811) 

Title: The effect of aged garlic extract on blood pressure and other cardiovascular risk 

factors in uncontrolled hypertensives: the AGE at Heart trial. 

Budoff M. 2006 (PMID 16484554) 

Title: Aged Garlic Extract Retards Progression of Coronary Artery Calcification 

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Federal Trade Commission 

Confidential 

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5165150-1

Budoff M. et al. 2004 (PMID 15475033) 

Title: Inhibiting progression of coronary calcification using Aged Garlic Extract in 

patients receiving statin therapy: a preliminary study 

These three studies, which administered 1200 mg of aged garlic powder and compared 

the results from aged garlic powder to a control group that received a placebo, establish the two 

garlic products at issue as Essentially Equivalent Products under the Stipulated Consent Order in 

this matter. 

We also direct your attention to the following two studies: 

Ried K., Frank O., Stocks N. 2013 (PMID 23169470) 

Title: Aged garlic extract reduces blood pressure in hypertensives: a dose–response trial 

Ried K., Frank O., Stocks N. 2010 (PMID: 20594781) 

Title: Aged garlic extract lowers blood pressure in patients with treated but uncontrolled 

hypertension: A randomised controlled trial 

Both of the above studies demonstrated positive results on human subjects who received 

lower amounts of aged garlic compared to the amount contained in our client’s Black Garlic 

Botanicals and BG-18 products. In particular, the Ried 2013 study had a relatively large sample 

size (79 patients) and concluded that even the lower amount of aged garlic extract yielded a 

“reduction in SBP [systolic blood pressure that] is comparable to that achieved with commonly 

prescribed antihypertensive medicines, and is of clinical significance.”

The remaining studies produced herewith are: 

Phil, RA., Khan R.A., Ashraf I. 2011 

Title: Effects of garlic on blood glucose levels and HbA1c patients with type 2 diabetes 

mellitus 

Ashraf R. 2005 [Abstract] (PMID 16320801) 

Title: Effects of garlic on dyslipidemia in patients with type 2 diabetes mellitus. 

Ashraf R., Khan RA, Ashraf I 2011 [Abstract] (PMID 21959822) 

Title: Garlic (Allium sativum) supplementation with standard antidiabetic agent provides 

better diabetic control in type 2 diabetes patients. 

Ashraf R., Khan RA., Quereshi AA 2013 [Abstract] (PMID 24035939) 

Title: Effects of Allium sativum (garlic) on systolic and diastolic blood pressure in 

patients with essential hypertension. 

Atkin M., Laight D. Cummings MH 2016 [Abstract] (PMID 26954484) 

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 45 of 53 * PUBLIC *
Federal Trade Commission 

Confidential 

Page 3 

5165150-1

Title: The effects of garlic extract upon endothelial function, vascular inflammation, 

oxidative stress and insulin resistance in adults with type 2 diabetes at high 

cardiovascular risk. A pilot double blind randomized placebo controlled trial. 

Wang J. et al. 2017 (PMID 29056888) 

Title: Effect of garlic supplement in the management of type 2 diabetes mellitus 

(T2DM): a meta-analysis of randomized controlled trials 

We include these additional studies as further support that our two aged garlic products, 

which contain 1200 milligrams of aged black garlic bulb powder, are Essentially Equivalent 

Products as defined in the Consent Order that properly substantiate any claims made by our 

client through studies that meet the appropriate criteria. 

With respect to any studies that may have been previously produced but are not included 

in this current submission, they are incorporated herein by reference, and we reserve all rights to 

rely on them in any future proceedings should such proceedings occur. We make this reservation 

of rights on the one hand, and provide certain substantiation for the first time on the other hand, 

because in our lengthy exchange of correspondence, up to and including the proposed Modified 

Order covering the alleged contempt (which is denied), different questions have continually been 

raised that were not addressed in previous Commission requests. 

In response to your inquiry about our client’s marketing efforts, your e-mail misstates 

things, so we appreciate your invitation to clarify the present situation. Our client has not been, 

and is not currently affirmatively marketing any of the four products identified in your 

September 4th letter, precisely because it desires to resolve the disputed contempt allegations 

expeditiously and in good faith. What this means is that our clients have paused sending out 

mail brochures for the two black garlic products for the time being, with the last BG-18 mailer 

having been sent on or about June 10, 2019 and the last Black Garlic Botanicals mailer having 

been sent on or about August 22, 2019. We are further advised that Ultimate Heart Formula 

mailings ceased in December 2018 and Neupathic mailings in April 2019. 

Mail brochures are the only way our clients actively market their products. They do not 

engage in any web marketing, i.e. efforts to drive internet traffic to its website. As you know, a 

stand-alone website has existed for satisfied customers to place repeat orders and for people who 

previously received mail brochures to obtain more information or to purchase products 

conveniently or safely.

In order to further demonstrate its good faith and sensitivity to the Commission’s 

concerns, our client advises that it removed the four products at issue from company websites 

last week (September 19, 2019). This is being done without prejudice to resuming all appropriate 

marketing activities after this matter has been resolved. 

Our clients intend to honor their obligations to fulfill continuity orders, other orders 

placed though incoming customer service lines, and reorders from consumers who enjoy the 

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 46 of 53 * PUBLIC *
Federal Trade Commission 

Confidential 

Page 4 

5165150-1

products, have incorporated such products into their health regimens and wish to continue to do 

so. 

We trust this explanation has answered your questions. We are preparing our next 

submission for October 11, 2019 and will continue to address the issues discussed above. 

Sincerely, 

/s/ Andrew B. Lustigman

Andrew B. Lustigman 

cc: Robert M. Frisby, Esq; (rfrisby@ftc.gov); 

Brendan O’Neill, Esq. (brendan.oneil@maine.gov) 

Encls. 

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 47 of 53 * PUBLIC *
Averill Affidavit – Attachment L

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 48 of 53 * PUBLIC *
HRL, LLC

These Revenue Numbers are from 1/1/18‐5/31/19

Revenue in the US

Product Name Gross Amt Billed to Customer Refunds (Including Ch

Black Garlic Botanical (HRL) $ 983,987.01 $ 

Ultimate Heart Formula (HRL) $ 260,997.71 $ 

BG‐18 (WBS) $ 451,190.87 $ 

Neupathic (HRL) $ 333,462.92 $ 

Revenue in Canada

Product Name Gross Amt Billed to Customer Refunds (Including Ch

Black Garlic Botanical (HRL) $ 187,878.01 $ 

Ultimate Heart Formula (HRL) $ 109,489.79 $ 

BG18 (WBS) $ 107,885.96 $ Neupathic (HRL) $ 144,270.53 $ 

HRL Total ‐ Orders/Refunds/Chargebacks

Total orders from 1/1/18‐5/31/19 

Total Refunds from 1/1/18‐5/31/18 Total Refund Rate from 1/1/18‐5/31/19 Total Chargebacks from 1/1/18‐5/31/19 Total Chargeback Rate from 1/1/18‐5/31/19 Total Aggregate Refund + Chargeback rate from 1/1/18‐5/31/19 

WBS ‐ Total ‐ Orders/Refunds/ChargebacksTotal orders from 1/1/18‐5/31/19 Total Refunds from 1/1/18‐5/31/18 

Total Refund Rate from 1/1/18‐5/31/19 Total Chargebacks from 1/1/18‐5/31/19 

Total Chargeback Rate from 1/1/18‐5/31/19 Total Aggregate Refund + Chargeback rate from 1/1/18‐5/31/19 

CONFIDENTIAL 

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page 49 o
Averill Affidavit – Attachment M

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 50 of 53 * PUBLIC *
Health Research Labs, LLC and Whole Body Supplements, LLC

FTC Revenue Ask Letter Dated 9/4/19

These Revenue Numbers are from 6/1/19-9/24/19

Revenue in the US

Product Name Gross Amt Billed to Customer Refunds (Including Chargebacks) Net Amount

Black Garlic Botanical (HRL) $ 129,325.57 $ 2,003.73 $ 127,321.84

Ultimate Heart Formula (HRL) $ 29,727.54 $ 589.66 $ 29,137.88

BG-18 (WBS) $ 54,581.50 $ 517.29 $ 54,064.21

Neupathic (HRL) $ 33,139.55 $ 1,489.06 $ 31,650.49

Revenue in Canada

Product Name Gross Amt Billed to Customer Refunds (Including Chargebacks) Net Amount

Black Garlic Botanical (HRL) $ 9,924.89 $ - $ 9,924.89

Ultimate Heart Formula (HRL) $ 5,655.81 $ - $ 5,655.81

BG18 (WBS) $ 6,782.12 $ - $ 6,782.12

Neupathic (HRL) $ 5,826.14 $ 119.97 $ 5,706.17

CONFIDENTIAL HRL008163 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page 51 of 53 * PUBLIC * PUBLIC
Averill Affidavit – Attachment N

 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/12/2021 | Document No. [insert 602873 | PAGE Page PUBLIC 52 of 53 * PUBLIC *
Product Sales Type Gross Sales Continuity from

List Code Pre

2018

Continuity

from

WEB/WM/RO

Pre 2018

Estimated RO for

1/17/18‐6/17/18

(based on 5.5 bottles

per order)

Gross Revenue

for Orders

Steming from

18‐19 Mailings

Marketing

Spend 2018

S

Black Garlic Botanicals Initial $ 790,435.81 $ 790,435.81 $ 380,119.67 $ 

Continuity $ 494,085.05 $ 250,126.75 $ 10,385.55 $ 233,572.75 

Reorder $ 164,623.84 $ 43,646.13 $ 120,977.71 

BG‐18 Initial $ 381,154.30 $ 381,154.30 $ 265,317.95 $ 

Continuity $ 229,220.75 $ 95,253.15 $ 5,007.65 $ 128,959.95 

Reorder $ 82,017.98 $ 13,706.85 $ 68,311.13 

Neupathic Initial $ 342,531.86 $ 342,531.86 $ 218,931.95 $ 

Continuity $ 136,889.90 $ 21,911.45 $ 1,159.60 $ 113,818.85 

Reorder $ 55,014.20 $ 7,749.85 $ 47,264.35 

UHF Initial $ 227,838.68 $ 227,838.68 $ 147,234.90 $ 

Continuity $ 146,721.65 $ 29,055.61 $ 8,774.80 $ 108,891.24 

Reorder $ 102,439.16 $ 22,081.48 $ 80,357.68 

$ 3,152,973.18 $ 396,346.96 $ 25,327.60 $ 87,184.31 $ 2,644,114.31 $ 1,011,604.47 $ 

Product Sales Type Gross Sales Net Revenue DSE SK Candee Osterhouse 

Black Garlic Botanicals Initial $ 790,435.81 $ 37,582.54 $ 1,500.00 $ 1,000.00 $ 1,237.50 $ 

Continuity $ 494,085.05 $ 149,112.84

Reorder $ 164,623.84 $ 77,232.17

BG‐18 Initial $ 381,154.30 $ (47,532.91) $ 7,000.00 $ 2,696.25

Continuity $ 229,220.75 $ 82,328.03

Reorder $ 82,017.98 $ 43,609.83

Neupathic Initial $ 342,531.86 $ (35,038.49) $ 7,000.00 $ 5,638.00

Continuity $ 136,889.90 $ 72,661.95

Reorder $ 55,014.20 $ 30,173.56

UHF Initial $ 227,838.68 $ (1,782.69) $ 7,000.00 $ 5,637.00

Continuity $ 146,721.65 $ 69,516.17

Reorder $ 102,439.16 $ 51,300.34

$ 3,152,973.18 $ 529,163.34 $ 1,500.00 $ 22,000.00 $ 3,933.75 $ 11,275.00 $ 

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