AHPA and the Council for Responsible Nutrition (CRN) filed joint comments last week to reiterate significant concerns to the Oregon Department of Justice (OR DOJ) about a Proposed Rule that would create a private right of action for opportunistic plaintiffs' lawyers motivated by the potential for recovery rather than the public interest.

This Proposed Rule would allow private plaintiffs to initiate a lawsuit simply by alleging – without engaging in scientific evaluation or public interest analysis – that a company making a health benefit claim does not have support for that claim. This would run counter to the well-settled laws of other U.S. jurisdictions and recognized public health considerations as well as the general principle that only regulators can bring a lawsuit based on an alleged lack of substantiation for advertising claims.

"It is difficult to overstate the immensely harmful effect that the Proposed Rule’s private right of action would have on Oregon businesses," AHPA and CRN stress in the letter to OR DOJ. "The Proposed Rule would have the unintended and undesired consequence of creating a private right of action that opportunistic plaintiffs’ lawyers could abuse to extort Oregon businesses with the threat or initiation of costly and uncertain litigation challenging their substantiation for health benefit claims."

The letter to OR DOJ emphasizes that AHPA and CRN share the agency's concern about false and fraudulent claims made by opportunists and other bad actors. However, the associations stress that the objectives of the rulemaking could be accomplished by limiting enforcement to Oregon regulators.

"We understand that the DOJ wishes to move forward promptly with this rulemaking to help combat unsubstantiated product claims ... We applaud this goal generally, but ... the DOJ has already publicly conceded that its current authorities suffice for this purpose," AHPA and CRN state. "The Proposed Rule only stands to harm businesses with the potential to create a flood of frivolous lawsuits from the opportunistic plaintiffs’ bar that could overwhelm Oregon’s court system, while likely providing only marginal additional benefit to the State in achieving its ultimate goal of protecting consumers."

"At a minimum, we ask that the DOJ limit enforceability of this Proposed Rule to Oregon regulators, but we further urge that the Proposed Rule is unnecessary and should be withdrawn," the letter concludes.