UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Noah Joshua Phillips 

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 

ORDER GRANTING IN PART COMPLAINT COUNSEL’S SECOND MOTION TO 

AMEND COMPLAINT AND NOTICE AND REQUEST FOR REMAND 

INSTRUCTIONS 

On December 1, 2021, consistent with our Order Denying Final Decision Under Rule 

3.12(b)(2) and Denying Summary Decision at 6-7 (Nov. 19, 2021) (“Order Denying Final 

Decision”), Complaint Counsel moved to amend the Complaint. See Complaint Counsel’s 

Second Motion to Amend Complaint and Notice and Request for Remand Instructions (Dec. 1, 

2021) (“Motion”). Complaint Counsel also asked the Commission to set a new hearing date and 

provide instructions on remand concerning scheduling, discovery, and additional requirements 

for Respondents’ answer. Respondents object to the proposed amendments and remand 

instructions. See Respondents’ Response to Complaint Counsel’s Second Motion to Amend 

Complaint and Notice and Request for Remand Instructions (Dec. 10, 2021) (“Response”). We 

grant Complaint Counsel’s requests to amend the Complaint and set a new hearing date and 

partially grant their other requests. 

I. MOTION TO AMEND THE COMPLAINT 

Complaint Counsel state that their proposed amendments generally fall into two 

categories, with some overlap. First, the amendments add support for the requested fencing-in 

relief, including by adding allegations concerning a previous action brought by the FTC and the 

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State of Maine against Respondents in the District of Maine and a related stipulated order.

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Other allegations falling into this category include those concerning the breadth and timing of ad 

dissemination as well as communications between Respondents and their consultants regarding 

the ad claims. Motion at 2-3. Second, the amendments clarify the factual and legal allegations 

in the Complaint and provide greater notice of the claims against Respondents, including by 

specifying the relevant time period of the challenged conduct, explicitly alleging wide 

dissemination and materiality, adding detail regarding how Respondents’ substantiation was 

deficient, adjusting language to emphasize that Respondents’ claims are challenged under both 

Sections 5(a) and 12 of the FTC Act, and replacing the Notice of Contemplated Relief with a 

proposed Order. Motion at 2-3. Respondents object to the amendments, particularly the 

inclusion of facts regarding the Maine action, and the requested relief. Response at 2. 

“[T]he Commission may freely grant leave to amend complaints when the public interest 

so requires.” Champion Home Builders Co., 99 F.T.C. 397, 399 (1982) (citing Forster Mfg. Co. 

v. FTC, 335 F.2d 47, 50 (1st Cir. 1964)). We find that this standard is met here, as the 

amendments buttress and provide greater notice of the allegations and the requested relief. 

Although Respondents now oppose the inclusion of facts regarding the Maine litigation, they 

previously objected to Complaint Counsel’s reliance on these facts partly because they were not 

included in the original Complaint and Respondents “did not receive fair notice” of them. 

Respondents’ Opposition to Summary Disposition and Reply Findings of Fact, Conclusions of 

Law, and Brief 14-15 (Sept. 10, 2021). Respondents also asserted that the original Complaint 

did not provide sufficient notice or clarity regarding the relief sought. Id. at 21, 23, 26-27. The 

amendments would address these purported deficiencies. Thus, the public interest would be 

served by amending the Complaint to ensure that additional notice is provided and to avoid 

future dispute about the sufficiency of the Complaint. See Sunshine Biscuits, Inc., 52 F.T.C. 110, 

116 (1955) (upholding amendment that clarified the complaint “to remove any possibility of 

doubt or misunderstanding on respondent’s part as to the charge it must meet”). 

Respondents take issue with the breadth of the amendments, describing them as a 

“wholesale revision of the case.” See Response at 1-2. The amendments, however, do not 

change the theory of the case but only clarify and buttress existing charges and add specificity to 

and support for Complaint Counsel’s requested relief.2 

1 Per the proposed Amended Complaint, the complaint in the Maine action charged Health Research Laboratories 

and Kramer Duhon with violating the Federal Trade Commission Act (“FTC Act”) by disseminating deceptive ads 

with false and unsubstantiated health and disease-related claims. See Motion Attachment 1 (Amended Complaint) 

¶ 5 (citing Complaint for Permanent Injunction and Other Equitable Relief, FTC v. Health Research Labs., LLC, No. 

2:17-CV-00467 (D. Me. Nov. 30, 2017)). The parties resolved that action with a Stipulated Final Judgment and 

Order (“Stipulated Order”) that, among other things, prohibited Respondents from making representations about 

health benefits, safety, performance, or efficacy of a food, drug, or dietary supplement unless those representations 

were non-misleading and substantiated by competent and reliable scientific evidence. See Motion Attachment 1 

(Amended Complaint) ¶¶ 8-9. The court subsequently denied a contempt motion alleging that Respondents had 

disseminated mailers that violated one section of the Stipulated Order. Id. ¶¶ 15-16. 

2 Among the proposed amendments, Complaint Counsel seek to modify the allegations that Respondents’ 

representations “were not substantiated” at the time they were made to say that these representations “are false or 

misleading, or were not substantiated” when made. Motion Attachment 1 (proposed Amended Complaint) ¶¶ 46, 

48, 50, 52). These amendments clarify the linkage between the Complaint’s individual counts and its concluding 

paragraph, which alleges violation of both Section 5(a) of the FTC Act (prohibiting unfair or deceptive acts or 

practices) and Section 12 of the FTC Act (prohibiting false advertisements). They are not substantive changes to the 

causes of action or the theory of the case. As we have explained, claims that are not substantiated at the time they 

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In any case, Respondents have not made any argument that the breadth of the 

amendments will deprive them of a fair hearing, undermine their ability to present a defense, or 

otherwise cause undue prejudice. Indeed, the case is in the pre-trial stage and discovery is 

ongoing, so Respondents will have ample time to respond to the new allegations. See Champion 

Home Builders, 99 F.T.C. at 399 (“[I]t is clear that amending the complaint at this relatively 

early stage of the proceeding, where discovery is still ongoing and trial some months distant, 

would not prejudice respondent. Respondent would have adequate time to respond fully to the 

charges in the amended complaint.”) (citing Exquisite Form Brassiere, Inc. v. FTC, 301 F.2d 499 

(D.C. Cir. 1961)). These circumstances afford no basis for rejecting the proposed amendments. 

See Exquisite Form Brassiere, 301 F.2d at 501 (upholding amendment after complaint counsel 

had completed their case-in-chief but ample time remained for answer and preparation of a 

defense); James Carpets, Inc., 81 F.T.C. 1043, 1046 (1972) (“It does not appear to us that the 

amending of the complaint at [the pre-trial] stage of the proceeding will deprive respondents of 

the opportunity to answer the charges therein or to present a defense thereto.”). 

Respondents also argue that allegations regarding the Maine action and the Stipulated 

Order should be excluded because (1) if the present allegations involve conduct covered by the 

Stipulated Order, the claims have been decided and rejected by the District Court and cannot be 

relitigated here and (2) if the present allegations involve conduct not covered by the Stipulated 

Order, the Maine litigation is irrelevant to this proceeding. Response at 2. Complaint Counsel, 

however, explain that allegations regarding the Maine litigation are relevant to “the 

deliberateness” of Respondents’ alleged conduct and therefore have been included to support the 

fencing-in relief requested. Motion at 2-3. See, e.g., Stouffer Foods Corp., 118 F.T.C. 746, 811 

(1994) (explaining that the seriousness and deliberateness of the violation are among the factors 

to be considered in determining appropriate relief); see also In re Traffic Jam Events, 2021 WL 

5124183, at *22 (FTC Oct. 25, 2021) (the “failure of prior enforcement efforts in stopping 

unlawful activity” is a relevant consideration in determining how broad a remedy to impose) 

(quoting FTC v. Think Achievement Corp., 144 F. Supp. 2d 1013, 1018 (N.D. Ind. 2000)) 

(ellipsis omitted), petition for review filed, No. 21-60947 (5th Cir. Dec. 21, 2021). For example, 

facts regarding the Maine litigation could have relevance to Respondents’ knowledge of 

substantiation requirements. Thus, the allegations regarding the Maine litigation may prove 

relevant to this proceeding without requiring relitigation of issues already decided. 

Finally, Respondents argue that the relief requested in the proposed Order is not 

authorized by the FTC Act. Response at 2. Arguments to that effect can be addressed at a later 

point, if any violations are established and the Commission needs to consider the appropriate 

relief. Accordingly, we grant Complaint Counsel’s request to amend the Complaint. 

II. REQUEST TO REQUIRE RESPONDENTS TO ANSWER EACH ALLEGATION 

As discussed extensively in the Order Denying Final Decision, Respondents have 

sidetracked this proceeding by shifting their position regarding their Amended Answer, first 

are disseminated are by their nature misleading. See Order Denying Final Decision at 6-7 (citing ECM BioFilms, 

Inc., 160 F.T.C. 652, 709 (2015), aff’d sub nom., ECM BioFilms, Inc. v. FTC, 851 F.3d 599 (6th Cir. 2017); FTC 

Policy Statement Regarding Advertising Substantiation, appended to Thompson Med. Co., 104 F.T.C. 648, 839 

(1984)). 

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admitting all material allegations pursuant to Commission Rule 3.12(b)(2), 16 C.F.R. 

§ 3.12(b)(2), but then asserting that certain critical allegations were not in fact admitted because 

they were part of the “counts.” In light of this, Complaint Counsel have asked us to require 

Respondents to provide in their Answer a specific response to each individual factual allegation 

in the Amended Complaint, even if they decide to again invoke Rule 3.12(b)(2). Motion at 6. 

Complaint Counsel have also asked us to amend the third paragraph of the Notice to reflect this 

requirement. We agree that, given Respondents’ history, greater clarity will be needed regarding 

which paragraphs or allegations are actually admitted and which are denied should Respondents 

attempt again to invoke Rule 3.12(b)(2). Accordingly, if Respondents elect not to contest the 

allegations of fact set forth in the Amended Complaint, the Answer should state that 

Respondents admit all of the material facts to be true, as per Rule 3.12(b)(2), and must also 

provide a specific response to any portion of the Complaint that is not admitted. The first 

sentence of the third paragraph of the Notice shall be amended accordingly. 

III. REQUEST TO EXTEND THE HEARING DATE 

Complaint Counsel also ask us to set an evidentiary hearing date six months from the 

date of remand and to amend the Notice to reflect that new date. The hearing was originally set 

for July 13, 2021, a date that has come and gone. See Complaint at 12. Commission Rule 

3.41(b) requires hearings to proceed “with all reasonable expedition.” 16 C.F.R. § 3.41(b). Six 

months strikes an appropriate balance between the competing needs of providing a prompt 

resolution and ensuring that the parties have sufficient time to conduct discovery and prepare 

their case. We therefore find good cause to set a new hearing date for July 19, 2022, which is 

approximately six months from the date of remand. See id. 

IV. REQUESTS FOR INSTRUCTION ON REMAND REGARDING DISCOVERY 

AND SCHEDULING 

In our Order Denying Final Decision, we stated that, in light of Respondents’ litigation 

conduct, the Chief Administrative Law Judge (“ALJ”) should consider on remand whether 

Respondents’ counsel should be suspended or barred from participating in this proceeding under 

Commission Rule 3.42(d), 16 C.F.R. § 3.42(d), for dilatory and obstructionist conduct. Order 

Denying Final Decision at 8-9. Complaint Counsel have requested that we instruct the ALJ to do 

this “promptly,” in order to avoid a later procedural delay. Motion at 6. We agree that the 

efficiency of this proceeding on remand would be enhanced by considering this issue promptly 

and leave it to the ALJ to set an appropriate briefing schedule.3 

Complaint Counsel also ask us to require that a new scheduling order give the parties at 

least three months after remand to conduct additional fact discovery and an additional six weeks 

to produce expert reports and conduct expert depositions. Complaint Counsel also request that 

the parties be permitted to serve up to 50 additional document requests, 25 additional 

interrogatories, and 50 additional requests for admission (without any limitation on the number 

of requests for admission for authentication and admissibility of exhibits), to conduct fact 

3 Respondents object to the characterization of their conduct as improper and provide a lengthy defense of their 

shifting positions. Respondents are free to make these arguments to the ALJ when he considers whether suspension 

of counsel is appropriate under Rule 3.42(d). 

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witness and expert depositions, and to complete expert reports. Motion at 6-7. We leave it to the 

ALJ to determine the timing and scope of additional discovery as appropriate and permitted by 

Commission regulations.4 We note, however, that one of the reasons cited by Complaint 

Counsel for their request for additional discovery is the need to change paragraph references and 

make other adjustments based on the revisions in the Amended Complaint. Motion at 5. To the 

extent a discovery request is substantively identical to one already served and is modified only to 

reflect the Amended Complaint’s paragraph numbers or slight wording changes, this would not 

constitute a new request. 

Accordingly, 

IT IS HEREBY ORDERED THAT Complaint Counsel’s Second Motion to Amend 

Complaint and Notice and Request for Remand Instructions is GRANTED IN PART. 

IT IS FURTHER ORDERED THAT the evidentiary hearing in this proceeding shall 

commence at 10:00 am on July 19, 2022. 

IT IS FURTHER ORDERD THAT within 5 days of this Order, Complaint Counsel 

shall file an Amended Complaint as submitted as Attachment 1 to the Motion, except the Notice 

shall be modified to include the new hearing date and instructions, as specified in this opinion, 

regarding the required contents of an answer should Respondents elect not to contest the 

allegations of fact set forth in the Amended Complaint. 

IT IS FURTHER ORDERED THAT Respondents shall file their Answer to the 

Amended Complaint within 14 days of service, pursuant to Commission Rule 3.12(a), 16 C.F.R. 

§ 3.12(a). If Respondents elect not to contest the allegations of fact set forth in the Amended 

Complaint, pursuant to Commission Rule 3.12(b)(2), 16 C.F.R. § 3.12(b)(2), the Answer must 

state that Respondents admit all the material facts to be true and must also provide a specific 

response to any portion of the Complaint that is not admitted. And 

IT IS FURTHER ORDERED THAT, this proceeding is hereby remanded to the ALJ 

for discovery, evidentiary hearing, and initial decision, and for consideration of whether 

Respondents’ counsel should be suspended or barred from future participation in this proceeding 

under Commission Rule 3.42(d), 16 C.F.R. § 3.42(d), for dilatory or obstructionist conduct. 

By the Commission. 

April J. Tabor 

Secretary 

SEAL: 

ISSUED: January 18, 2022 

4 Commission Rule 3.35, 16 C.F.R. § 3.35, limits the number of interrogatories that may be served to 25. 

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