SALT LAKE CITY — Xlear, a Utah-based hygiene products manufacturer, has filed a lawsuit against the Federal Trade Commission (FTC), accusing the agency of violating constitutional rights and overstepping its statutory authority by requiring marketing substantiation for product claims. The suit, filed in the Utah Federal District Court, invokes the U.S. Supreme Court’s 2024 Loper Bright Enterprises v. Raimondo decision as the basis for challenging the FTC’s enforcement powers.
The complaint argues that the FTC’s requirement for companies to back up their marketing with scientific evidence lacks explicit support in the FTC Act and is, therefore, unlawful. Xlear’s legal counsel, Rob Housman, stated that the Loper decision mandates federal agencies adhere strictly to the language of the statutes they enforce and adopt only the “best” interpretation of those laws.
“Under the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) a Federal agency applying a statute is limited to what the specific language of the law says on its face. And, Loper goes on to require that if the agency is interpreting the statute, its interpretation must be the ‘best’ reading of law. The FTC Act says nothing about requiring substantiation. And, for a host of reasons—most importantly violations of the First Amendment and Due Process Clause—the FTC’s interpretation of the FTC Act is far from the ‘best’. As such, we are petitioning the Utah District Court to invalidate the FTC’s substantiation requirement,” Houseman said.
The lawsuit follows the resolution of a 2021 FTC action against Xlear, which alleged that the company made unsubstantiated claims that its nasal spray helped protect against COVID-19. Xlear consistently defended its statements as scientifically grounded. In March 2025, the Department of Justice and Xlear jointly agreed to dismiss the case with prejudice.
While the previous case was dropped, Xlear CEO Nate Jones said the company wanted to take the battle further.
“We agreed with the Government to drop the prior lawsuit because we wanted to get back to the business of helping Americans get and stay healthy through great oral and nasal hygiene products. However, we very much wanted our day in court. We wanted to stop the FTC’s illegal misuse of the FTC Act to censor science. The effect of this is to stifle health innovation—which benefits Big Pharma over cutting-edge smaller companies with new approaches. We wanted to protect the right of all Americans to have access to science-based health information. By filing this lawsuit, we are pushing ahead with combating the Government’s censorship of science.”
Jones added, “Ironically, while the FTC demands substantiation from companies, they really don’t care about science. Before the FTC sued us for substantiation, we sent them scores of studies that backed our claims. During the lawsuit the FTC admitted that not one single doctor or medical researcher had looked at the data we provided before they filed the suit.”
Xlear produces various nasal and oral hygiene products, including its flagship Xlear Nasal Spray and Spry brand dental care, which are sold nationwide in retail stores and online. The full complaint is available at Xlear.com.
