FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/12/2021 | OSCAR NO. 600979 | PUBLIC

__________________________________________ 

PUBLIC 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Health Research Laboratories, LLC, ) 

a limited liability company, ) Docket No. 9397 

) 

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, ) 

) 

Respondents. ) 

__________________________________________) 

ORDER DENYING COMPLAINT COUNSEL’S 

MOTION TO AMEND THE COMPLAINT 

I. 

On February 24, 2021, Federal Trade Commission (“FTC”) Complaint Counsel filed a 

Cross-Motion for Leave to Amend the Complaint (“Motion to Amend”).1 Respondents Health 

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

Duhon (collectively, “Respondents”) filed a Response to the Cross-Motion to Amend the 

Complaint on February 26, 2021.2 

As set forth below, the Motion to Amend the Complaint is DENIED. 

1 The Motion to Amend the Complaint was filed as a “Cross-Motion” as part of Complaint Counsel’s Opposition to 

Respondents’ Motion for Leave to Amend the Answer, which Respondents had previously filed on February 12, 

2021. By Order issued March 10, 2021, Respondents’ Motion for Leave to Amend the Answer was granted (“March 

10 Order”). 

2 Also on February 26, 2021, Respondents filed a motion to exceed the word limits applicable to their response to 

the Motion to Amend, which Complaint Counsel opposed on March 2, 2021. Respondents’ motion to exceed the 

word limits for their response is GRANTED. 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/12/2021 | OSCAR NO. 600979 | PUBLIC

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II. 

The Complaint in this matter, issued November 13, 2020, alleges that Respondents 

“disseminated or caused to be disseminated advertising and promotional materials” for four 

supplements that the FTC contends were “not substantiated at the time the representations were 

made,” and that such unsubstantiated representations constitute deceptive advertising in violation 

of sections 5 and 12 of the FTC Act. Complaint ¶¶ 7, 9, 11, 13, 15, 17, 19 and 21. 

The notice of contemplated relief in the Complaint states that Complaint Counsel will 

seek an order that will, among other things: prohibit any representations that any of 

Respondents’ products “cure, treat, mitigate, prevent, or reduce the risk of any disease”; prohibit 

any representations “about the health benefits, safety, efficacy, or the performance” of 

Respondents’ products “unless those representations are supported by competent and reliable 

scientific evidence”; and, prohibit any “misrepresentations regarding tests, studies, or other 

research.” Complaint at 14-15. 

Respondents filed their Answer to the Complaint on December 4, 2020, which denied 

they made unsubstantiated representations or that their conduct violated the FTC Act. Answer 

¶¶ 13, 15, 17, 19 and 21. Respondents also raised nine affirmative defenses, including, among 

others: that Complaint Counsel’s requested relief exceeds the Commission’s authority; that the 

case is moot; that the filing of the action is not in the public interest; that the FTC’s 

administrative process is unconstitutional; and the Commission’s de novo review on appeal of 

the fact findings of the Administrative Law Judge (“ALJ”) violates the Administrative 

Procedures Act. Answer at 3-4. 

On February 12, 2021, pursuant to Rule 3.15(a)(1), Respondents filed a Motion for Leave 

to Amend their Answer seeking to file an answer pursuant to Rule 3.12(b)(2), which provides: 

If the respondent elects not to contest the allegations of fact set forth in the complaint, the 

answer shall consist of a statement that the respondent admits all of the material 

allegations to be true. Such an answer shall constitute a waiver of hearings as to the facts 

alleged in the complaint, and together with the complaint will provide a record basis on 

which the Commission shall issue a final decision containing appropriate findings and 

conclusions and a final order disposing of the proceeding. In such an answer, the 

respondent may, however, reserve the right to submit proposed findings of fact and 

conclusions of law under § 3.46. 

16 C.F.R. § 3.12(b)(2). In accordance with the foregoing Rule, Respondents’ proposed amended 

answer stated: 

Pursuant to 16 CFR § 3.12(b)(2), Respondents elect not to contest the allegations of fact 

set forth in the complaint. Respondents admit all of the material allegations to be true. 

Pursuant to 16 CFR § 3.12(b)(2), Respondents reserve the right to submit proposed 

findings of fact and conclusions of law. 

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Respondents’ proposed amended answer reduced their legal defenses from nine to the 

five defenses summarized above that had been included in the original Answer to the Complaint. 

Respondents subsequently waived two of the five defenses. See Waiver of Affirmative Defenses 

of Mootness and Lack of Public Interest, filed February 25, 2021. Over Complaint Counsel’s 

opposition, Respondents’ Motion for Leave to Amend their Answer was granted on March 10, 

2021, allowing Respondents to file an Amended Answer to the pending Complaint, in the form 

proposed by Respondents, except that Respondents were not permitted to include the two waived 

defenses in the Amended Answer. The remaining three legal defenses in Respondents’ proposed 

Amended Answer are: that the requested relief exceeds statutory authorization; that the FTC’s 

administrative litigation process is unconstitutional; and that the Commission’s de novo review 

of fact-findings by the ALJ on administrative appeals is unconstitutional and a violation of the 

Administrative Procedures Act. 

In its Motion to Amend the Complaint, Complaint Counsel asserts that even under 

Respondents’ proposed Amended Answer, the parties will litigate the scope of relief.

3 Complaint 

Counsel argues that the amendments seek to add new factual allegations to support the broad 

relief that Complaint Counsel seeks. 

Complaint Counsel’s proposed amendments highlight certain events that took place in 

other litigation between the FTC and Respondents, in the United States District Court for the 

District of Maine (the “Maine Litigation”), which culminated in a consent judgment and 

permanent injunction barring certain product claims by Respondents. See Proposed amended 

complaint ¶ 4 (“The FTC and Respondents HRL and Kramer Duhon signed a Stipulated Final 

Judgment and Order (‘Order’) entered by U.S. District Judge Jon D. Levy on January 16, 2018 in 

FTC and State of Maine v. Health Research Laboratories, et al., 2:17-cv-00467 (Dkt. 15)”). The 

FTC filed a motion for contempt in that case, contending that Respondents had made 

unsubstantiated claims regarding certain supplements in violation of the consent judgment. The 

contempt motion was ultimately denied. The issuance of the Complaint in this case followed. 

In summary, the proposed amendments to the Complaint primarily allege that 

Respondents made the unsubstantiated representations alleged in this case after the entry of the 

consent judgment and the filing of the FTC’s contempt motion in the Maine Litigation. See, e.g., 

¶ 8 (amendments in italics) (“HRL began selling Black Garlic Botanicals in November 2016 and 

continued to sell it following entry of the Order and after the filing of a contempt motion against 

Respondents in FTC and State of Maine v. Health Research Laboratories, LLC, et al., 2:17-cv00467-JDL. HRL continued to sell the product to consumers through at least January 

2021 . . .”); ¶ 10 (amendments in italics) (“HRL has disseminated or has caused to be 

disseminated advertising and promotional materials for Black Garlic Botanicals in multi-page 

mailers sent to consumer residences and on company websites. Following entry of the Order, 

HRL disseminated or has caused to be disseminated more than 800,000 mailers to consumer 

residences in the United States and Canada. HRL continued to disseminate these mailers as late 

3 Complaint Counsel’s argument that the parties will litigate the Respondents’ defenses of mootness and lack of 

public interest is now moot, as Respondents have waived those defenses and agreed not to assert these particular 

affirmative defenses in any future answer. 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/12/2021 | OSCAR NO. 600979 | PUBLIC

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as August 2019 despite Respondents’ awareness that the FTC was investigating whether 

advertising for Black Garlic Botanicals violated the Order.”). 

Complaint Counsel argues that: (1) the proposed amendments add only details, not new 

theories, counts or defendants, and therefore fall reasonably within the scope of the original 

complaint; (2) the proposed amendments will facilitate a determination on the merits because 

they provide greater notice; and (3) because Respondents have not served any discovery, the 

proposed amendments are not unduly prejudicial. Respondents argue that: (1) the proposed 

amendments impermissibly add a new theory; (2) Complaint Counsel does not explain how the 

proposed amendments will facilitate a determination on the merits; and (3) changing the material 

facts, theories, and allegations in a case that is set for trial on a tight schedule is prejudicial. 

III. 

The operative FTC Rule, 3.15(a)(1), sets forth: 

If and whenever determination of a controversy on the merits will be facilitated thereby, 

the Administrative Law Judge may, upon such conditions as are necessary to avoid 

prejudicing the public interest and the rights of the parties, allow appropriate amendments 

to pleadings or notice of hearing: Provided, however, That a motion for amendment of a 

complaint or notice may be allowed by the Administrative Law Judge only if the 

amendment is reasonably within the scope of the original complaint or notice. Motions 

for other amendments of complaints or notices shall be certified to the Commission. 

16 C.F.R. § 3.15(a)(1). 

“[A] motion for amendment of a complaint or notice may be allowed by the 

Administrative Law Judge only if the amendment is reasonably within the scope of the original 

complaint or notice.” 16 C.F.R. § 3.15(a)(1). Thus, the ALJ has authority to order amendments 

which clarify the allegations of a complaint or which merely add examples of practices already 

challenged.” In re Champion Home Builders Co., 1982 FTC LEXIS 52, at *2-3 (Mar. 9, 1982). 

“Where a proposed amendment alters the ‘underlying theory’ of the original complaint, however, 

the Commission must make the determination whether to amend the complaint because only the 

Commission is authorized to determine whether there is reason to believe that the law has been 

violated and whether a proceeding on those amended charges would be in the public interest.” Id. 

Complaint Counsel asserts that the proposed amendments fall “‘within the scope of the 

original complaint,’ because [they add] details, not new theories or practices.” Motion to Amend 

at 7-8. Having reviewed the redlined amended complaint attached to the Motion to Amend, the 

allegations comprising the proposed amendments do not appear to add any new legal theories or 

allege new or different violations of the FTC Act. Although Complaint Counsel states that it has 

informed Respondents that Complaint Counsel “will seek to ban Respondents from the 

supplement industry,” Motion to Amend at 7-8 n.3, Complaint Counsel’s proposed amendments 

do not include any proposed changes to the Notice of Contemplated Relief. Based on the 

foregoing, Complaint Counsel’s proposed amendments are not outside the reasonable scope of 

the Complaint, and are therefore within the authority of the ALJ to allow. 16 C.F.R. § 3.15(a)(1). 

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To resolve the merits of the Motion to Amend, it must now be determined if the proposed 

amendments constitute “appropriate amendments” which will facilitate a “determination of a 

controversy on the merits.” 16 C.F.R. § 3.15(a)(1). 

Complaint Counsel has failed to show that the proposed amendments should be allowed. 

With respect to whether the proposed amendments will “facilitate a determination on the merits,” 

Complaint Counsel’s only argument is that the amendments will provide “greater notice 

regarding what Complaint Counsel will prove.” Motion to Amend at 7-8. The proposed 

amendments appear designed to support an argument that Respondents knowingly violated a 

court order when making the alleged misrepresentations challenged in this case, so as to justify 

broad fencing in relief. See Kraft, Inc. v. FTC, 970 F.2d 311, 326 (7th Cir. 1992) (“In 

determining whether a broad fencing-in order bears a ‘reasonable relationship’ to a violation of 

the [FTC] Act, the Commission considers (1) the deliberateness and seriousness of the violation, 

(2) the degree of transferability of the violation to other products, and (3) any history of prior 

violations.”). To the extent that Complaint Counsel’s amendments are intended for that reason, 

allowing the proposed amendments risks interjecting into this case the merits of whether 

Respondents’ conduct violated the Maine consent judgment, which would complicate resolution 

of the case on the merits. 

In addition, Respondents have elected not to contest the allegations of fact set forth in the 

pending Complaint and to admit all of the material allegations of the Complaint to be true, 

pursuant to Rule 3.12(b)(2). See March 10 Order. Such an answer has the effect of dispensing 

with a hearing and removing proceedings to the Commission for determination of an appropriate 

final order. 16 C.F.R § 3.12(b)(2) (“Such an answer shall constitute a waiver of hearings as to the 

facts alleged in the complaint, and together with the complaint will provide a record basis on 

which the Commission shall issue a final decision containing appropriate findings and 

conclusions and a final order disposing of the proceeding.”). Complaint Counsel’s seeking the 

proposed amendments, in reaction to Respondents’ election under Rule 3.12(b)(2), appears to be 

more of a strategic effort to counter Respondents’ efforts to bring this case to a resolution, than 

an effort to facilitate a determination of this case on the merits. Furthermore, by interjecting 

additional factual allegations, which Respondents state they view as “inflammatory,” Complaint 

Counsel’s proposed amendments could make it less likely that, in answering the amended 

Complaint, Respondents will elect not to contest the material allegations under Rule 3.12(b)(2). 

Under these circumstances, allowing the proposed amended complaint would not serve the 

purpose of Rule 3.15(a)(1) and would also unnecessarily frustrate the right to obtain expedited 

proceedings under Rule 3.12(b)(2).

4 

4 Complaint Counsel contends that the proposed amendments derive from recent discovery; however, the substance 

of the Maine consent judgment and the FTC’s motion for contempt have been known since 2019. 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/12/2021 | OSCAR NO. 600979 | PUBLIC

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IV. 

For all the foregoing reasons, the Motion to Amend the Complaint is DENIED. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: March 12, 2021 

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