In a striking turnaround, the Department of Justice recently asked the United States District Court of Utah to dismiss the FTC’s case against Xlear, Inc. and its CEO Nathan Jones, bringing closure to a nearly four-year battle. On March 10, 2024, the DOJ and Xlear filed a stipulation to dismiss the case with prejudice.
READ MORE: CFH and National Health Federation File Friends-of-the-Court Brief Against FTC
FTC’s Overreach Prompted CFH Court Filing
Last October, Citizens for Health (CFH) and the National Health Federation (NHF) jointly filed an Amici Curiae brief in United States v. Xlear, against the FTC’s enforcement action in the Utah court. The amici brief filing, also called a Friends-of-the-Court brief, supported a motion by Xlear asking the Court to dismiss the complaint.
FTC’s October 2021 lawsuit alleged that Xlear falsely claimed its saline nasal sprays were an effective way to prevent and treat COVID-19. FTC alleged these claims were made on the company’s website, social media, advertisements, and through guest appearances on podcasts. The agency sent a warning letter to Xlear Inc. on July 29, 2020, but according to FTC’s complaint, Xlear continued to make the claims.
In 2024, Citizens for Health and the National Health Federation filed an Amicus Brief in support of Xlear’s response to the FTC’s charges against Xlear.
“Citizens for Health is pleased to see the DOJ request to dismiss the case against Xlear.The FTC’s actions in this instance disempowered and hurt American consumers. Information about natural health products does not need to be supported by clinical trials to be shown to be truthful and non-misleading. Americans have the right to make informed choices about the natural products they rely on to support their health,” said Betsy Lehrfeld, President of Citizens for Health.
Xlear, in announcing last week’s stipulation to dismiss, maintained its original defense: FTC lacked statutory authority to require clinical data from nonpharmaceutical health companies, based on the recent U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo.
“We applaud the Department of Justice’s commonsense decision to drop this case — a case that had no merit and should never have been brought,” said Xlear’s Jones.
For the last four years Xlear has vigorously denied the FTC’s allegations, instead steadfastly maintaining that its statements about COVID were accurate and science based. The company said it provided the FTC scores of studies — both clinical and in vitro — that together demonstrated the use of oral/nasal hygiene products like Xlear nasal spray to help both prevent COVID infections when used by healthy people and reduce the duration and severity of sickness when used by those already infected with the virus.
“Our belief in the science supporting Xlear is so strong that I was initially inclined to decline the DOJ’s request to dismiss the case — we wanted our day in court,” said Jones. “However, after nearly four years of censorship and legal harassment by the FTC, it is time for Xlear to fully focus on the business of helping people get and stay healthy.”
