# UNITED STATES OF AMERICA

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URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3Aede81b8f4e424803

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION
COMMISSIONERS:

Andrew N. Ferguson, Chairman
Mark R. Meador

In the Matter of
CIVIL INVESTIGATIVE DEMAND TO
AMERICAN ACADEMY OF PEDIATRICS
DATED JANUARY 15, 2026

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File No. P264800
PUBLIC

ORDER DENYING PETITION TO QUASH
CIVIL INVESTIGATIVE DEMAND
By FERGUSON, Chairman:
The American Academy of Pediatrics (AAP) petitions the Commission to quash in its
entirety a Civil Investigative Demand (CID) issued on January 15, 2026, in connection with the
Commission’s investigation into whether AAP or any other person has made, or assisted others
in making, false or unsubstantiated representations or engaged in unfair practices in connection
with the marketing and advertising of Pediatric Gender Dysphoria Treatment (PGDT)—medical
interventions for minors with gender dysphoria, including but not limited to pubertal
suppression, hormone therapy, and surgery.
AAP requests that the Commission quash the CID because the CID (1) exceeds the scope
of the Commission’s authority to investigate; (2) violates the First Amendment; (3) was not
issued pursuant to a Commission resolution; and (4) is overbroad and unduly burdensome.
Petition, at 1. For the reasons set forth below, we deny AAP’s petition.
I.

BACKGROUND

AAP describes itself as a 501(c)(3) nonprofit organization “dedicated to improving the
health of all children.” Petition, at 1. AAP notes that, as part of that mission, AAP has issued
clinical guidance, such as its policy statement titled “Ensuring Comprehensive Care and Support
for Transgender and Gender-Diverse Children and Adolescents” (2018 Policy Statement) and its
August 2023 reaffirmation of that statement (2023 Reaffirmation), “to educate medical
professionals about gender-affirming care (‘GAC’) for youth with gender dysphoria.” Id.
According to AAP, its guidance materials are offered for free to the public, and AAP does not
offer or advertise GAC or any medical products or services to patients. Id. at 2.

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On January 15, 2026, under the authority of two Commission resolutions authorizing the
use of compulsory process, the Commission issued a CID to AAP pursuant to Section 20 of the
FTC Act, 15 U.S.C. § 57b-1. Petition Ex. 1. The AAP CID was issued as part of the
Commission’s investigation into whether AAP or any other person has made, or assisted others in
making, false or unsubstantiated representations or engaged in unfair practices in connection
with the marketing and advertising of PGDT to consumers in violation of Sections 5 and 12 of
the FTC Act, and whether FTC action to obtain monetary relief would be in the public interest.
Id.
The CID to AAP seeks information pertaining to the following: AAP’s membership
requirements, composition, benefits, and services; AAP’s education, training, or certification
programs; AAP’s PGDT-related workshops, townhalls, and conferences; each type of PGDT
advertised, marketed, promoted, addressed, or referred to in documents disseminated by AAP;
the dissemination of and substantiation for any Covered Statement, a term defined in the CID to
mean six specific representations; the development and issuance of the 2018 Policy Statement,
2023 Reaffirmation, and WPATH’s “Standards of Care for the Health of Transgender and Gender
Diverse People, Version 8” (SOC-8), including related communications with Professional
Medical Organizations or other organizations, institutions, or individuals; AAP’s financial
relationships or partnerships relating to PGDT with any (a) pharmaceutical company, (b) medical
device manufacturer, or (c) clinic, hospital system, or individual clinician; all investigations and
lawsuits involving Covered Statements or PGDT, including where AAP is amicus; any studies
involving PGDT that AAP sponsored, conducted, or contributed to; PGDT-related information
AAP provided to any legislature or regulator; AAP’s financial statements; and AAP’s records
retention policy, among other subjects. Id. at 5-7. The relevant time period for AAP’s responses
is from January 1, 2021, to the date of full and complete compliance with the CID, but certain
specifications apply regardless of time period. Id. at 5.
The CID attached two resolutions: (1) the Resolution Directing Use of Compulsory
Process in a Non-Public Investigation of Dietary Supplements, Foods, Drugs, Devices, or Any
Other Product or Service Intended to Provide a Health Benefit or to Affect the Structure or
Function of the Body, issued by the Commission on August 9, 2019 [hereinafter 2019
Resolution]; and (2) the Resolution Directing Use of Compulsory Process Regarding Acts or
Practices Affecting Children, issued by the Commission on September 2, 2021 [hereinafter 2021
Resolution]. Id. at 17-18.
The 2019 Resolution authorized the issuance of CIDs:
To investigate whether unnamed persons, partnerships, or corporations, or others
have engaged or are engaging in deceptive or unfair acts or practices in or
affecting commerce in the advertising, marketing, or sale of dietary supplements,
foods, drugs, devices, or any other product or service intended to provide a health
benefit or to affect the structure or function of the body; have misrepresented or
are misrepresenting the safety or efficacy of such products or services; or
otherwise have engaged or are engaging in unfair or deceptive acts or practices or
in the making of false advertisements, in or affecting commerce, in violation of
Sections 5 or 12 of the Federal Trade Commission Act, 15 U.S.C. §§ 45 and 52, as
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amended. The investigation is also to determine whether Commission action to
obtain monetary relief would be in the public interest.
Id. at 17.
The 2021 Resolution authorized the issuance of CIDs:
To investigate whether any persons, partnerships, corporations, or others have
engaged or are engaging in unfair, deceptive, anticompetitive, collusive, coercive,
predatory, exploitative, or exclusionary acts or practices, in or affecting
commerce, related to goods or services marketed, in whole or in part, to children
under 18, in violation of Section 5 of the Federal Trade Commission Act, 15
U.S.C. § 45, as amended or any statutes or rules enforced by the Commission; and
to determine the appropriate action or remedy, including whether injunctive and
monetary relief would be in the public interest.
Id. at 18.
AAP was served with the CID on January 16, 2026. See Petition Ex. 4, at 5-10
(Statement of Counsel Pursuant to 16 C.F.R. § 2.10(a)(2)). AAP reached out to Commission staff
on January 30, 2026, to schedule a meet-and-confer session. Id. at 5. 1 That session took place on
February 2, 2026. Id. During the meet-and-confer, AAP purports to have raised objections to the
CID based on the Commission’s jurisdiction, the First Amendment, the authorizing resolutions,
and the CID’s breadth and burden. Id. at 5-7. But AAP does not appear to have offered any
proposals to modify the CID’s specifications in a manner that would address its concerns while
providing the Commission the information it needs. See generally id. The return date of the CID
was March 16, 2026. Petition Ex. 1 at 3. Commission staff proposed a production schedule that
would have extended the CID’s return date, conditional on AAP responding to two document
requests by February 16, 2026. Petition Ex. 4, at 9.
AAP and Commission staff continued to discuss via email on February 4, 5, 6, 7, and 8,
2026. Id. at 8-10. AAP timely filed the instant petition on February 9, 2026.

After service of the CID on January 16, 2026, AAP had 14 days—or until January 30, 2026—to meet and confer
with FTC counsel to discuss CID compliance. See 16 C.F.R. § 2.7(k) (“Unless excused in writing or granted an
extension . . . , a recipient of Commission compulsory process shall meet and confer with Commission staff within
14 days after receipt of process or before the deadline for filing a petition to quash, whichever is first . . . .”
(emphasis added)). Instead, AAP waited until January 30 to reach out to Commission staff, and its January 30 email
asked if there were “times on Monday” (i.e., February 2) that would work for Commission staff. AAP’s meet and
confer took place on February 2, 2026, which is outside of the 14-day deadline in 16 C.F.R. § 2.7(k). We remind
AAP that we expect full compliance with the agency’s rules of practice. If a CID recipient does not raise its concerns
in a timely manner, this prevents Commission staff from working constructively with the CID recipient on mutually
agreeable solutions that would obviate the need for, or reduce the scope of, any petition to quash. We also remind
AAP’s counsel that the Commission’s Rules require all CID recipients to engage in good faith with Commission
staff during the meet-and-confer process to attempt to resolve by agreement any issues or concerns a recipient has
with a CID. 16 C.F.R. §§ 2.7(k), 2.10(a)(2); see also In re Feature Films for Families, Inc., 150 F.T.C. 866, 869
(Sep. 23, 2010) (CID recipient’s obligation to meet and confer “is neither a pro forma requirement nor one that can
or should easily be waived” because it provides a method for “resolving disputes in an efficient manner”).
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II.

ANALYSIS
A. The CID Is Within the Commission’s Authority.

AAP first argues that the CID targets non-commercial activities and statements, which the
FTC Act does not authorize; that the CID identifies AAP as a potential FTC Act violator, even
though AAP is not a “person, partnership, or corporation” that could violate the FTC Act; and
that the CID lacks a legitimate investigative purpose. Petition, at 4-9.
1. Non-Commercial Activities and Statements
AAP claims that its speech and activities are non-commercial and thus outside the scope
of the FTC’s jurisdiction because its GAC guidance does not shape consumer preferences or
steer treatment choices, the guidance is available to the public for free, and AAP does not pay to
advertise the guidance. Petition, at 4-6.
AAP’s argument confuses the Commission’s enforcement authority with its broader
investigatory authority. 2 AAP’s citations to 15 U.S.C. § 45(a)(1), In re R.J. Reynolds Tobacco
Co., 111 F.T.C. 539 (1988), and FTC v. Agora Financial, LLC, 447 F. Supp. 3d 350 (D. Md.
2020), are inapplicable here. These authorities address the analytically separate question of
whether the Commission can take enforcement action with respect to commercial speech, not
whether the Commission can issue a CID to investigate statements about the safety and efficacy
of health products and treatments that were made in a commercial context. Cf. Blue Ribbon
Quality Meats, Inc. v. FTC, 560 F.2d 874, 876 (8th Cir. 1977) (“[I]t is clear that the investigatory
power granted the FTC under 15 U.S.C. § 46 reaches further than the regulatory power granted it
under 15 U.S.C. § 45.”).
AAP’s argument fails for another reason as well. The Commission does not dispute that
the First Amendment protects noncommercial speech. Misleading commercial speech, however,
is “not protected by the First Amendment.” Thompson v. W. States Med. Ctr., 535 U.S. 357, 367
(2002); see also Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. of Ohio, 471 U.S. 626,
638 (1985) (holding that it is “well settled” that “the Federal Government [is] free to prevent the
dissemination of commercial speech that is false, deceptive, or misleading”); FTC v. Trudeau,
662 F.3d 947, 953 (7th Cir. 2011) (“[M]isleading commercial speech gets no constitutional
protection.”). Here, the Commission is investigating potential unfair or deceptive practices
related to the marketing or advertising of PGDT. See Petition Ex. 1. The Commission is not
required to accept AAP’s assertions that its statements and activities “are plainly noncommercial.” Petition, at 4. Instead, the Commission can require AAP to produce documents and
other information so that the Commission can make that determination itself. Cf. United States v.
Morton Salt Co., 338 U.S. 632, 642-43 (1950) (noting that the Commission “has a power of
inquisition ... [that] is more analogous to the Grand Jury, which does not depend on a case or

As discussed more fully below, identifying whether the Commission has such enforcement authority is a proper
purpose of a CID. Until and unless AAP complies with the CID and produces information and documents sufficient
to show the Commission that it lacks enforcement authority over AAP, the Commission cannot concede that it lacks
enforcement authority over AAP.

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controversy for power to get evidence but can investigate merely on suspicion that the law is
being violated or even just because it wants assurance that it is not”).
2. Non-Profit Status
AAP argues that Section 4 of the FTC Act only allows the Commission to take action
against a “corporation” that is “organized to carry on business for its own profit or that of its
members,” and that AAP was not organized for that purpose. AAP claims that its operations
confer no more than de minimis economic benefits on its members, and that AAP is therefore not
a “corporation” that can violate the FTC Act. Petition, at 7-8.
Again, AAP puts the cart before the horse by focusing on California Dental Ass’n v FTC,
526 U.S. 756 (1999), American Medical Ass’n v. FTC, 638 F.2d 443 (2d Cir. 1980), and other
cases involving the Commission’s enforcement authority under Section 4 of the FTC Act. Prior
Commission decisions have recognized that Section 20 authorizes the Commission to obtain
information from any “legal entity,” irrespective of whether the entity falls within the definition
of “corporation” in Section 4. See In re Aug. 11, 2022 Civ. Investigative Demand Issued to
Childhood Leukemia Found., Inc., No. 222-3073, 2023 WL 8112947, at *2 (Nov. 17, 2023)
(“[T]he plain language of Section 20 permits the Commission to serve a CID on any legal entity,
regardless of whether it is a ‘corporation’ within the meaning of Section 4[.]”); In re Mar. 19,
2014 Civ. Investigative Demand Issued to Police Protective Fund, Inc., 157 F.T.C. 1913, 1915-18
(May 22, 2014); In re Feature Films for Families, Inc., 150 F.T.C. 866, 870 (Sep. 23, 2010)
(Commission “can require production of material from an entity that is not subject to the
Commission’s enforcement authority if that material furthers the investigation of possibly illegal
conduct by entities that are subject to the agency’s jurisdiction, such as for-profit telefunders
making calls on [the CID recipient’s] behalf”).
More specifically, Section 20 authorizes the Commission to serve a CID on any “person.”
15 U.S.C. § 57b-1(c)(1). 3 “Person” for purposes of Section 20 is defined as “any natural person,
partnership, corporation, association, or other legal entity, including any person acting under
color or authority of State law.” Id. § 57b-1(a)(6) (emphasis added). Given that it is an “Illinoisbased 501(c)(3) non-profit organization,” Petition, at 1, AAP cannot credibly argue that it is not a
“legal entity.” Therefore, regardless of whether the Commission is ultimately able to enforce
Section 5 of the FTC Act against AAP, AAP is a “legal entity” that falls within the definition of
“person” under Section 20 of the FTC Act and therefore is subject to the Commission’s
investigatory jurisdiction and may properly be issued a CID.
Furthermore, the law is clear that an agency has the power to investigate to determine
whether an organization is subject to its regulatory jurisdiction. See, e.g., Weinberger v. Hynson,
Section 20(c)(1) provides: “Whenever the Commission has reason to believe that any person may be in possession,
custody, or control of any documentary material or tangible things, or may have any information, relevant to unfair
or deceptive acts or practices in or affecting commerce (within the meaning of section 45(a)(1) of this title), or to
antitrust violations, the Commission may, before the institution of any proceedings under this subchapter, issue in
writing, and cause to be served upon such person, a civil investigative demand requiring such person to produce
such documentary material for inspection and copying or reproduction, to submit such tangible things, to file written
reports or answers to questions, to give oral testimony concerning documentary material or other information, or to
furnish any combination of such material, answers, or testimony.” 15 U.S.C. § 57b-1(c)(1).

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Westcott & Dunning, Inc., 412 U.S. 609, 627 (1973) (agency’s “jurisdiction to determine whether
it has jurisdiction is as essential to its effective operation as is a court’s like power.”); Fed. Mar.
Comm’n v. Port of Seattle, 521 F.2d 431, 434 (9th Cir. 1975) (“[E]ach independent regulatory
administrative agency has the power to obtain the facts requisite to determining whether it has
jurisdiction over the matter sought to be investigated.”); FTC v. Monahan, 832 F.2d 688, 689 (1st
Cir. 1987) (Breyer, J.) (reasoning that judges, “like the FTC, must wait to see the results of the
investigation before” assessing whether the FTC has jurisdiction). As discussed in prior
Commission decisions, the Commission “possesses the authority to investigate whether its
jurisdiction extends to” the CID recipient. Feature Films for Families, 150 F.T.C. at 871; see also
Childhood Leukemia Found., 2023 WL 8112947, at *4; Police Protective Fund, Inc., 157 F.T.C.
at 1919-20.
AAP asserts that it provides “no more than de minimis economic benefits for its
members,” and it also points to the fact that AAP’s Articles of Incorporation contain language
disclaiming any pecuniary profit objective. Petition, at 8. But, as we explained in Police
Protective Fund, “the Commission is not required to take at face value an organization’s claim
that it is a charitable organization and can require it to produce documents and other information
to enable the Commission to make that determination itself.” 157 F.T.C. at 1916.
Here, as in Police Protective Fund, the Commission will conduct a careful examination to
determine whether AAP is in fact carrying on business “for its own profit or that of its
members.” Id. at 1915 (citing 15 U.S.C. § 44). For example, interrogatories 1-3 ask about AAP’s
membership requirements, composition, benefits, and services; interrogatory 4 and document
request 6 ask about AAP’s education, training, or certification programs; interrogatory 9 and
document request 10 seek information about financial relationships or partnerships between AAP
and any (a) pharmaceutical company, (b) medical device manufacturer, or (c) clinic, hospital
system, or individual clinician; and document request 11 seeks AAP’s financial statements.
Petition Ex. 1, at 5-7. Information and documents responsive to these specifications will enable
the Commission to conduct a fact-intensive inquiry into how AAP actually operates, including
examination of “the primary purpose of the organization, the extent to which funds or other
benefits may have been conferred on related for-profit companies or individuals, and the extent
to which the organization may have been used by individuals or for-profit entities as a device to
seek monetary gain.” Police Protective Fund, 157 F.T.C. at 1917-18. For purposes of this inquiry,
“‘[t]he extent to which an entity confers benefits on private interests is relevant even if those
benefits are not in the form of ‘profits’ as that term is traditionally understood.” Id. at 1918. 4
3. Proper Purpose
AAP argues that the CID lacks a legitimate investigative purpose because it targets
activities that patently fall outside the scope of the FTC’s authority to regulate and raises
constitutional concerns. Petition, at 9.
4
See also FTC v. Gill, 183 F. Supp. 2d 1171, 1184-85 (C.D. Cal. 2001) (company was “not a legitimate nonprofit
organization” where evidence showed individual defendant lived in corporate office, paid personal expenses from
corporate account, and otherwise commingled assets); In re Ohio Christian Coll., 80 F.T.C. 815, 848 (1972) (“Profit,
for the purpose of Section 4 of the Federal Trade Commission Act, is not limited to dividends, gains or direct
reward.”); cf. Liu v. SEC, 591 U.S. 71, 84 (2020) (expenses such as “extraordinary salaries” may amount to
“dividends of profit under another name”)

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We disagree. For the reasons discussed above in Section II.A.1-2, AAP’s arguments
about the Commission’s authority to take enforcement action have no bearing on the
Commission’s authority to investigate. And, for the reasons discussed below in Section II.B,
AAP’s constitutional concerns are also unfounded.
B. The CID Does Not Violate AAP’s First Amendment Rights.
AAP argues that the CID abridges AAP’s First Amendment rights in three ways: (1) the
CID is a content-based restriction that risks chilling medical discourse; (2) the CID’s demands
for the identities of AAP’s associates and deliberations about the development of GAC guidance
violate AAP’s right to associate freely; and (3) the CID constitutes retaliation. Petition, at 9-15.
1. Chilling Medical Discourse
AAP argues that the CID is a content-based restriction on AAP’s non-commercial speech,
which is entitled to the highest level of First Amendment protection. Petition, at 9-11. AAP
argues in the alternative that, if its scientific and medical information is deemed commercial
speech, the CID fails to satisfy the intermediate scrutiny test. Id. at 11.
AAP asserts that “the CID is part of an enforcement initiative shaped by predetermined
disfavor for AAP’s viewpoint,” Petition, at 10, but this argument is disproved by the same July 9,
2025 FTC workshop to which AAP points. Id. at 2. The workshop occurred amid growing
concern about deceptive representations surrounding PGDT. Recent reports have indicated weak
scientific evidence and lack of substantiation for PGDT. 5 Patients, providers, and others have
increasingly come forward with evidence that PGDT may harm teenagers. 6 Patients and their
families have also alleged false statements and material omissions were communicated to them
about PGDT’s safety and efficacy. 7 Against that backdrop, the FTC began evaluating
representations made to consumers about PGDT’s purported benefits and the substantiation for
those representations. Consistent with this approach, the FTC then held its public, live-streamed
workshop. Chairman Ferguson’s remarks at the workshop made clear that he had not made up his
mind regarding the legality of any conduct by proponents of PGDT. See Andrew N. Ferguson,
Chairman, FTC, Welcome Keynote at the Dangers of “Gender-Affirming Care” for Minors 1
(July 9, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/FTC-The-Dangers-of-GenderAffirming-Care-for-Minors-Transcript.pdf (“It is about healing the wounds that proponents of
gender-affirming care may have inflicted on our nation’s children and parents” (emphasis
added)); id. at 2 (“[O]ne of the reasons we are here today is [to] examine whether some of the
practices in gender-affirming care are deceptive and require greater scrutiny by the FTC.”
(emphasis added)). As he explained, “We are not here to pass judgment on anyone. We are here
For example, the Cass Report, a now-famous international government-commissioned review of PGDT, concluded
that “[t]his is an area of remarkably weak evidence.” H. Cass, Independent Review of Gender Identity Services for
Children and Young People, at 13 (Apr. 2024), https://perma.cc/RDN3-WBYR.
6
One young woman, for example, filed a medical malpractice suit, alleging that taking testosterone she received
after only a “thirty-minute consult” caused “constant vocal pain, joint pain, and frustrating and sometimes painful
sexual dysfunction.” Jennifer Block, How Did Planned Parenthood Become One of the Country’s Largest Suppliers
of Testosterone?, The Free Press (Aug. 7, 2024), https://perma.cc/TB9T-27YA.
7
E.g., Chloe Cole, I’m a Detransitioner, N.Y. Post (Mar. 11, 2025), https://perma.cc/3HV7-GN68.
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to ensure that those who make claims about gender-affirming care are held to the same standard
we apply to everyone else who engages in commerce. We are here to ensure that everyone can
make an informed choice about their own path to healing without fear of being deceived by those
who stand to profit from certain medical interventions.” Id. at 5. Commissioner Meador
expressed similar sentiments. Id. at 74 (“In my view, treating people with respect and dignity
means being honest with them, including about the effects of medical interventions, about the
evidentiary basis, about the anticipated outcomes, and this is especially important when we’re
talking about decisions involving children. That's what today’s workshop is about.”). Neither
Chairman Ferguson nor Commissioner Meador mentioned AAP. See generally id.
Following the workshop, the FTC issued a Request for Public Comment “to better
understand how consumers may have been exposed to false or unsupported claims about
‘gender-affirming care’ (GAC), especially as it relates to minors, and to gauge the harms
consumers may be experiencing.” 8 By the September 26, 2025, comment deadline, the agency
received close to 8,000 responsive comments. 9 Numerous commenters referenced AAP or the
2018 Policy Statement. 10 After considering the perspectives provided at the workshop and in the
public comments, the Commission issued the CID to investigate potential deceptive or unfair
practices related to the marketing or advertising of PGDT.
AAP’s concern about content-based restrictions on its non-commercial speech is
premature. The Commission has not found that AAP has engaged in unlawful conduct; the
Commission has not ordered AAP to do, or refrain from doing, anything; the Commission has
not imposed “informal sanctions” such as “the threat of invoking legal sanctions and other means
of coercion, persuasion, and intimidation,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67
(1963); and the Commission has not taken any action, directly or indirectly, to “use the power of
the State to punish or suppress disfavored expression,” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S.
175, 188 (2024). “[T]here are no sanctions for failing to comply with a subpoena of this type
unless and until a district court enters an order under section 20(e) of the Act, 15 U.S.C. § 57b1(e), directing compliance.” Gen. Fin. Corp. v. FTC, 700 F.2d 366, 368 (7th Cir. 1983).
Although AAP cites National Institute of Family & Life Advocates v. James (NIFLA), 160
F.4th 360 (2d Cir. 2025), this case is inapposite. The NIFLA plaintiffs alleged that, because the
New York Attorney General had already initiated a civil enforcement action against other entities
Press Release, FTC, FTC Requests Public Comment Regarding “Gender-Affirming Care” for Minors (July 28,
2025), https://www.ftc.gov/news-events/news/press-releases/2025/07/ftc-requests-public-comment-regardinggender-affirming-care-minors.
9
See Request for Public Comment Regarding “Gender-Affirming Care” for Minors, regulations.gov,
https://www.regulations.gov/docket/FTC-2025-0264.
10
For example, consumers observed that they believed PGDT “is life-saving [and] evidence-based” due to the
“endorse[ment]” of PGDT by AAP and its 2018 Policy Statement. Comment from Moran, Crystal (Aug. 11, 2025),
https://perma.cc/VVN9-75XB; Comment from Montes, Jenifer (Sep. 9, 2025), https://perma.cc/FR8Z-ASBZ
(“Leading medical organizations, including the AMA and AAP, affirm [PGDT’s] safety and necessity.”); Comment
from Sytsma-Ramos, Rachael (Aug. 21, 2025), https://perma.cc/ECC3-3Q33. On the other hand, numerous
commenters expressed serious concern over the lack of evidence supporting the 2018 Policy Statement and PGDT.
The American Academy of Medical Ethics, for example, explained that the 2018 Policy Statement was not credible
given its “systematic exclusion and misrepresentation of entire literatures” and evidence that it “deliberate[ly]
suppress[es] … opposition” to PGDT. Comment from Am. Acad. of Med. Ethics (Sep. 8, 2025),
https://perma.cc/C2NZ-V522.
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for making statements that were identical or substantially similar to statements the NIFLA
plaintiffs made or wished to make, the NIFLA plaintiffs faced a threat of sanctions if they
continued to engage in this speech and therefore stopped their speech to avoid any liability. Id. at
363-64. In contrast, the Commission has taken no comparable enforcement action. The
Commission is merely conducting an investigation, one purpose of which is to determine
whether AAP or others may have engaged in conduct that lacks protection under the First
Amendment. See Police Protective Fund, 157 F.T.C. at 1920; see also Vullo, 602 U.S. at 190-91
(“When the government threatens no sanction—criminal or otherwise—we very much doubt that
the government’s criticism or effort to embarrass the intermediary threatens anyone’s First
Amendment rights.” (cleaned up)). In addition, it was undisputed that the NIFLA plaintiffs
wanted to make their statements based on their moral and religious beliefs, and that they received
no remuneration or financial benefit from engaging in their protected speech. 160 F.4th at 376.
Here, by contrast, interrogatory 9 and document request 10 seek information needed to assess
whether AAP benefits financially from, or has other economic motivations based on, its
relationships with pharmaceutical companies, medical device manufacturers, clinics, hospital
systems, or individual clinicians. Petition Ex. 1, at 6-7.
Additionally, as part of the section of its petition relating to the chilling of medical
discourse, AAP includes several apparently unrelated arguments. It makes a fleeting reference to
viewpoint discrimination, it invokes the Fourth Amendment, and it argues that the specifications
are more extensive than necessary. Petition, at 10-11.
To the extent that AAP is claiming that mere issuance of the CID constituted viewpoint
discrimination, the Commission notes that AAP has not alleged a “pattern of unlawful
favoritism,” Thomas v. Chicago Park Dist., 534 U.S. 316, 325 (2002), or that similarly situated
entities received more favorable treatment. Indeed, the CID sent to AAP actually has fewer
specifications and seeks less information than other CIDs sent to other nonprofits or purported
nonprofits 11 or in other investigations involving healthcare claims. 12
As to the Fourth Amendment, Petition, at 10, there has been no unconstitutional search or
seizure here. As courts have recognized, “[a]n administrative subpoena is not self-executing and
is therefore technically not a ‘search.’ It is at most a constructive search, amounting to no more
than a simple direction to produce documents, subject to judicial review and enforcement.”
United States v. Sturm, Roger & Co., 84 F.3d 1, 3 (lst Cir. 1996). AAP’s reliance on Zurcher v.
11
See, e.g., Pet. to Quash Civil Investigative Demand Ex. B, Childhood Leukemia Found., 2023 WL 8112947,
https://www.ftc.gov/system/files/ftc_gov/pdf/2223073-PTQ.pdf (28 interrogatories and 55 document requests, many
with subparts), Mot. to Quash Civil Investigative Demand Ex. P, Police Protective Fund, 157 F.T.C. 1913,
https://www.ftc.gov/system/files/documents/petitions-quash/police-protective-fundinc./140422policeprotfundquash.pdf (76 interrogatories and 53 document requests, many with subparts).
12
See, e.g., Pet. to Enforce Civil Investigative Demand Ex. 3, FTC v. Kushly, LLC, No. 2:20-mc-00036 (D. Ariz.
July 30, 2020), https://www.ftc.gov/system/files/documents/cases/01_petitionexhibitsproposed_order.pdf (22
interrogatories and 15 documents requests, many with subparts); Pet. for an Order Enforcing Civil Investigative
Demand Ex.2, FTC v Redwood Sci. Techs., No. 2:17-cv-07921 (C.D. Cal. Oct. 30, 2017),
https://www.ftc.gov/system/files/documents/cases/redwood_2017-10-30_enforcement_petition.pdf (22
interrogatories and 16 document requests, many with subparts); Pet. to Limit or Quash Civil Investigative Demand
Ex. 1, In re Cellmark Biopharma LLC, 162 F.T.C. 1212 (2016),
https://www.ftc.gov/system/files/documents/petitions-quash/lexium-international-llc/160613petitiontoquashlexium.pdf (42 interrogatories and 36 document requests, many with subparts).

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Stanford Daily, 436 U.S. 547, 564 (1978), is accordingly unavailing. Zurcher involved a criminal
search warrant, not a CID. 436 U.S. at 551. For administrative subpoenas like the Commission’s
CIDs, the Fourth Amendment is satisfied so long as “the investigation is authorized by Congress,
is for a purpose Congress can order, and the documents sought are relevant to the inquiry.” Okla.
Press Publ’g. Co. v. Walling, 327 U.S. 186, 209 (1946); see Strum, Ruger & Co., 84 F.3d at 4
(describing the “modest,” “minimal standards of Oklahoma Press” for administrative
subpoenas). Section 20 of the FTC Act provides the necessary authorization and lawful purpose,
and the information sought in the CID is relevant to the Commission’s investigation into
potential deceptive or unfair practices related to the marketing or advertising of PGDT. See FTC
v. Invention Submission Corp., 965 F. 2d 1086, 1090 (D.C. Cir. 1992) (“The standard for judging
relevancy in an investigatory proceeding is more relaxed than in an adjudicatory one. At the
investigatory stage, the Commission does not seek information necessary to prove specific
charges; it merely has a suspicion that the law is being violated in some way and wants to
determine whether or not to file a complaint.”); see also Adams v. FTC, 296 F.2d 861, 867 (8th
Cir. 1961) (“[B]roadness alone is not sufficient justification to refuse enforcement of a subpoena
so long as the material sought is relevant.”).
And in complaining that the CID specifications are “significantly more extensive than
necessary for the Commission to investigate AAP’s statements about GAC,” Petition, at 11, AAP
misunderstands the scope of the Commission’s investigation. As the CID’s “Subject of
Investigation” field makes clear, the Commission is investigating both AAP and other persons.
Id. Ex. 1, at 3. Information responsive to the specifications that AAP complains about—
documents requests 4 and 5—will help the Commission assess any claims related to the 2018
Policy Statement, 2023 Reaffirmation, or SOC-8, and also assess whether those three documents
provided the basis for anyone to make false or unsubstantiated representations or engage in
unfair practices related to the marketing or advertising of PGDT. Id. at 7. AAP’s
Communications with Professional Medical Organizations, other organizations or institutions, or
individuals related to the 2018 Policy Statement, 2023 Reaffirmation, and SOC-8 are relevant to
these concerns.
2. Right to Free Association
AAP argues that the CID’s demands for the identities of all individuals and entities
involved in the development of GAC guidance, as well as deliberations about that guidance,
infringe on AAP’s First Amendment right to free association. Petition, at 12-13.
AAP’s claim is, however, premature. Two of the cases it cites involved situations where
the government had ordered a group to accept members it did not desire—an issue that the CID
does not raise. See Roberts v. U.S. Jaycees, 468 U.S. 609, 616, 623 (1984) (state supreme court
determined that state law required the Jaycees to admit women as full voting members); Boy
Scouts of Am. v. Dale, 530 U.S. 640, 646-47 (2000) (state supreme court determined that state
law required the Boy Scouts to accept a gay man as an adult leader). In the remaining case, the
entity was subject to a court order requiring production of the documents in question. See Perry
v. Schwarzenegger, 591 F.3d 1147, 1153-54 (9th Cir. 2010) (court order required production in
response to opposing party’s requests for production of documents under the Federal Rules of
Civil Procedure). Here, by contrast, the Commission has not sought enforcement of the CID. The
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Commission has not yet decided whether it will do so at all, and if so, as to which specifications
(or even portions of specifications). See Gen. Fin. Corp., 700 F.2d at 368 (“Compliance with the
subpoenas could be a hardship but it is one the plaintiffs can prevent by defending successfully
against the Commission’s [process] enforcement action”).
Relatedly, AAP’s argument is too underdeveloped for the Commission to evaluate at this
juncture. AAP asserts that interrogatories 8 and 13 and documents requests 4-5 “chill AAP’s
ability to engage in open discussions about GAC and other scientific topics.” Petition, at 12. But
AAP fails to explain how each of these specifications would chill associational rights, whose
associational rights would be chilled, what (if any) responsive material it has for each
specification, and why disclosure of the responsive material would result in harassment,
membership withdrawal, discouragement of new members, or other consequences which
objectively suggest an impact on, or chilling of, associational rights. For example, the 2018
Policy Statement lists an author, as well as various contributors, committee members, liaisons,
staff, and reviewers. Petition, Ex. 3 at 10-11. Without details about whether the responsive
material (if any) relates to these publicly known individuals or instead to AAP’s members who
wish to be anonymous, the Commission cannot evaluate the associational interests at stake.
In addition, without more details about what material AAP claims is protected by the First
Amendment, the Commission cannot apply the appropriate balancing test. In a recent case
involving compelled disclosure of associational information, three Justices took the view that the
applicable standard is “exacting scrutiny.” Ams. for Prosperity Found. v. Bonta, 594 U.S. 595,
607 (2021) (plurality opinion as to Part II-B-1). 13 Under that standard, there must be “a
substantial relation between the disclosure requirement and a sufficiently important
governmental interest,” and the disclosure requirement must be “narrowly tailored to the interest
it promotes.” Id. (cleaned up). The Commission’s important government interests furthered by
this CID include investigating potential deceptive claims about PGDT, protecting children and
families from deception, and investigating whether the Commission has enforcement authority
over AAP. But, without more information about what responsive material AAP has, the
Commission cannot assess whether these important government interests are sufficient to
overcome any claimed chilling effect, whether there are other means by which the Commission
could obtain the information it needs for its investigation, and whether the claimed injury to
AAP’s associational rights could be cured by narrowing the specifications, redacting certain
information, putting in place use or disclosure restrictions, or taking other measures. Cf. Dole v.
Serv. Emps. Union, AFL-CIO, Loc. 280, 950 F.2d 1456, 1458 (9th Cir. 1991) (concluding that the
DOL could obtain union meeting minutes that recorded “discussions of a highly sensitive and
political character” because the DOL had a compelling interest, but upholding various
restrictions on the DOL’s use and disclosure of the meeting minutes).
AAP is free to assert this claim in the concrete factual context of an enforcement
proceeding, if one ever occurs. For the moment, however, its claim is both premature and
insufficiently concrete.
More specifically, Chief Justice Roberts and Justices Kavanaugh and Barrett applied exacting scrutiny, Justice
Thomas would have applied strict scrutiny, and Justices Alito and Gorsuch saw no need to decide between the two
standards. 594 U.S. at 619-20 (Thomas, J., concurring in part and concurring in the judgment); 594 U.S. at 622-23
(Alito, J., concurring in part and concurring in the judgment).
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3. Retaliation
AAP argues that the CID retaliates against AAP’s protected speech. Petition, at 13-15.
Specifically, AAP contends that AAP’s publication of medical guidance and policy advocacy
constitutes protected speech; that the CID demands the same kind of wide-ranging internal
“resource materials” at issue in Media Matters for Am. v. FTC, 805 F. Supp. 3d 105 (D.D.C.
2025); and that the Commission has evidenced hostility toward GAC. Id.
As an initial matter, to the extent that AAP is alleging a retaliatory investigation by the
Commission, it appears unlikely that such a claim is even cognizable. The Supreme Court and
the U.S. Court of Appeals for the District of Columbia Circuit have declined to resolve the
question. See Hartman v. Moore, 547 U.S. 250, 262 n.9 (2006); Media Matters for Am. v. Paxton,
138 F.4th 563, 584-85 (D.C. Cir. 2025). Several courts of appeals have suggested that such
claims should not be recognized. See Archer v. Chisholm, 870 F.3d 603, 620 (7th Cir. 2017);
Breaux v. City of Garland, 205 F.3d 150, 157-61 (5th Cir. 2000); see also J.T.H. v. Mo. Dep’t of
Soc. Servs. Child.’s Div., 39 F.4th 489, 493 (8th Cir. 2022) (“[W]e have never recognized a
retaliatory-investigation claim of this kind. Nor have other courts around the country. . . .”);
Sivella v. Township of Lyndhurst, No. 20-2342, 2021 WL 3356934, at *3 (3d Cir. Aug. 3, 2021).
And the U.S. Court of Appeals for the Eleventh Circuit has squarely held that “a retaliatory
investigation” “does not implicate a federal constitutional right.” Rehberg v. Paulk, 611 F.3d 828,
850 & n.24 (11th Cir. 2010), aff’d, 566 U.S. 356 (2012); Thompson v. Hall, 426 F. App’x 855,
858 (11th Cir. 2011) (per curiam) (same).
Even if a retaliatory investigation claim were theoretically cognizable—which only one
federal court of appeals appears to have assumed—it could arise only in extraordinary
circumstances. See Moore v. Garnand, 83 F.4th 743, 752 (9th Cir. 2023) (recognizing that while
no case had “held that a retaliatory investigation by itself was unconstitutional,” it was possible
that the entire “scope and manner” of a given investigation could violate the First Amendment
(cleaned up)). Such extraordinary circumstances might include “campaigns of harassment and
humiliation,” Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003), threats of arrest,
Lacey v. Maricopa Cnty., 693 F.3d 896, 909-10, 917 (9th Cir. 2012), or “other means of coercion,
persuasion, and intimidation” such as a substantial fine, White v. Lee, 227 F.3d 1214, 1228 & n.8
(9th Cir. 2000) (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963)). None of which
are present in the Commission’s investigation. AAP faces no threat of fines or arrest. CIDs are
not self-executing, and AAP will incur no penalty or other legal detriment for failing to comply
unless the Commission first files a petition for enforcement in a federal court and the court, after
considering AAP’s arguments, rules for the Commission and orders AAP to respond. See, e.g.,
Gen. Fin. Corp., 700 F.2d at 368; 15 U.S.C. § 57b-1(e) (CID enforcement provision). AAP’s
statement of counsel acknowledges that, far from harassing or coercing AAP, Commission staff
has met and conferred to address AAP’s concerns and has modified certain specifications. See
Petition Ex. 4, at 5-9. And, as discussed in more detail below, none of AAP’s asserted harms are
sufficient to show a chilling effect, much less rise to the level of extraordinary circumstances.
Even assuming that a retaliatory investigation claim is cognizable, AAP did not provide
adequate evidence to support its claim. To prevail on a retaliation claim, a party must show (1)
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that it engaged in conduct protected under the First Amendment, (2) that there is “a causal link
between the exercise of the constitutional right and the adverse action taken against [the
organization]”—i.e., a retaliatory action, and (3) that the Commission’s “retaliatory action [was]
sufficient to deter a person of ordinary firmness in [the organization’s] position from speaking
again”—i.e., a chilling effect. Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016) (cleaned up). For
purposes of this Order, the Commission assumes without deciding that AAP engages in some
protected First Amendment activities. Regardless, AAP’s petition fails to establish the other two
prongs: it has not shown a causal link between the CID and its First Amendment protected
activities, and it has not shown that the CID has caused a sufficient chilling effect.
a. Retaliatory Action
AAP fails to demonstrate a causal link between its speech and the CID. Aref, 833 F.3d at
258. To show causation, AAP must demonstrate at a minimum that the CID “would not have
been [issued] absent the retaliatory motive.” Nieves v. Bartlett, 587 U.S. 391, 399 (2019). 14 In
making that but-for showing, AAP must overcome the “longstanding presumption of regularity”
that attaches to government action. Hartman, 547 U.S. at 263. That presumption is at its apex in
the context of law-enforcement investigations, an area of “executive discretion of such high
order.” Id. For that reason, to meet this prong, AAP must put forward sufficient evidence to
displace the presumption of regularity and demonstrate that the but-for cause of the CID was
AAP’s protected activity. AAP points to the FTC’s “public statements evidencing hostility to
GAC,” as well as the “misalignment” between the CID’s “expansive” requests and “any neutral
inquiry regarding allegedly deceptive advertising,” Petition, at 14, but this is insufficient to meet
AAP’s burden.
As discussed above in section II.B.1, both Chairman Ferguson’s and Commissioner
Meador’s remarks at the July 5, 2025, workshop actually suggest that the Commission acted for
non-retaliatory reasons when issuing the CID. Both the Chairman and the Commissioner
highlighted the need for the Commission to examine whether GAC-related practices are unfair or
deceptive. And AAP’s reliance on the statement of an FTC spokesperson from July 2, 2025,
Petition, at 15, is unavailing. Remarks from “non-decisionmakers are not generally direct
evidence of discrimination.” Waggel v. George Wash. Univ., 957 F.3d 1364, 1374 (D.C. Cir.
2020); accord Youssef v. Lynch, 144 F. Supp. 3d 70, 101 (D.D.C. 2015). The only way such
statements could even conceivably enter the analysis is if the non-decisionmaker was involved in
the decisionmaking process. E.g., Harris v. Wackenhut Servs., Inc., 648 F. Supp. 2d 53, 62
(D.D.C. 2009), aff’d, 419 F. App’x 1 (D.C. Cir. 2011) (concluding that “comments made by …
non-decisionmakers[] are inadmissible” where “plaintiff [had] failed to proffer evidence … that
the speakers had any influence, or even had any input, on the [relevant] decision”). Here, AAP
has not alleged that the FTC spokesperson had any involvement in the issuance of the CID. His
remarks do not suggest retaliation against AAP in any event. He merely observed that avoiding
In fact, the requisite showing is more robust: AAP actually must demonstrate that there was no reasonable basis
for the CID. For example, in the similar context of retaliatory arrests, the Supreme Court has held that plaintiffs
must show that the government lacked probable cause. Nieves, 587 U.S. at 399-400. The same logic applies here
too. See Gonzalez v. Trevino, 602 U.S. 653, 663 (2024) (Alito, J., concurring); cf. Media Matters for Am. v. Bailey,
No. 24-cv-147, 2024 WL 3924573, at *1213 (D.D.C. Aug. 23, 2024) (considering the issue and ultimately declining
to impose an objective basis standard, at least in part for case-specific reasons). As discussed in the accompanying
text, however, AAP has not satisfied even the basic but-for standard.
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“needless mutilation of children” should be a point of agreement. 15 And AAP’s petition tellingly
omits the following sentence, where this employee added that “[e]very American should be
troubled by the possibility that parents and their children were misled about the use of medical
‘therapies’ that may have caused serious harm.” 16 Moreover, as discussed in Section II.B.1, the
subsequent responses to the Request for Public Comment reinforced the need for the
Commission to investigate potential deceptive or unfair practices related to the marketing or
advertising of PGDT.
AAP’s argument about a purported “misalignment” is also unconvincing. As previously
noted in section II.B.2, the specifications in the AAP CID are actually narrower than other CIDs
sent to other nonprofits or in other investigations involving healthcare claims. See supra notes 8
and 9. In short, because AAP’s Petition fails to demonstrate that its speech was the reason that
the Commission issued the CID or that the CID had a chilling effect, AAP has failed to establish
a retaliatory investigation claim, to the extent that such a claim is even cognizable.
b. Chilling Effect
AAP offers no affidavit to support its claims of a chilling effect, and instead merely
points to the district court’s decision in Media Matters, 805 F. Supp. 3d 105. Media Matters is,
however, a non-precedential decision in a preliminary posture that is currently on appeal. In any
event, the reasoning of Media Matters is inapplicable here. As the district court explained, the
retaliation ruling in Media Matters “turned on facts unique to Media Matters” and the “likelihood
that” another CID recipient in the same investigation could prevail on a similar claim would
“depend[] on entirely different facts.” Docket Order, Disinformation Index, Inc. v. FTC, No.
1:25-cv-4137 (D.D.C. Dec. 16, 2025). The stay panel majority, too, described Media Matters as
involving “unique factual circumstances” and expressed skepticism that even other CID
recipients in the same investigation “could plausibly … seek similar relief.” Media Matters for
Am. v. FTC, 2025 WL 2988966, at *11 (D.C. Cir. Oct. 23, 2025) (per curiam). Media Matters is
even less relevant to a CID recipient in a wholly different investigation, such as AAP.
Even if the Commission were to give credence to AAP’s unsupported assertions about
discussion participants fearing “burdensome investigations or FTC enforcement” and current or
prospective members withdrawing or being deterred because of “expos[ure] to FTC scrutiny,”
Petition, at 12-13, these claimed harms are inadequate. The CID’s specifications are typical for
CIDs seeking to determine whether an organization has made health and safety claims in
advertising and whether those claims are substantiated. See supra note 12. The fact that AAP’s
CID responses may result in the FTC scrutinizing other individuals or entities as part of this
same investigation is not sufficient evidence of a chilling effect. See FTC v. Texaco, Inc., 555
F.2d 862, 882 (D.C. Cir. 1977) (“Some burden on subpoenaed parties is to be expected and is
necessary in furtherance of the agency’s legitimate inquiry and the public interest.”); cf. FTC v.
Standard Oil, 449 U.S. 232, 244 (1980) (“The expense and annoyance of litigation is part of the
social burden of living under government.” (cleaned up)).

See Jody Godoy, US FTC Workshop Criticizing Medical Care for Transgender Youth Draws Staff Opposition,
Reuters (July 2, 2025), https://perma.cc/E8SU-MF9L.
16
Id. (emphasis added).
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Overall, AAP’s Petition fails to establish that the Commission’s issuance of the CID has
had a sufficient chilling effect on its speech. For that reason, too, AAP has failed to establish its
retaliatory investigation claim, to the extent that such a claim exists.
4. Right to Petition
AAP argues that document request 7, which seeks “[a]ll testimony, advocacy, or other
information provided to any legislature or regulator related to PGDTs,” burdens its right to
petition. Petition, at 12 n.12. Under 16 C.F.R. § 2.10(a)(1), a petition to quash or limit
compulsory process “shall set forth all assertions of protected status or other factual and legal
objections to the Commission compulsory process, including all appropriate arguments,
affidavits, and other supporting documentation” (emphasis added). AAP’s single sentence in a
footnote falls short of this standard, because AAP fails to “offer[] any support, explanation, or
reasoned argument.” In re Postal Careers Inst., Inc., 125 F.T.C. 1317, 1319 (1998). Despite these
deficiencies, however, we explain why AAP’s right to petition claim is not a basis to quash the
CID.
Document request 7 seeks “[a]ll testimony, advocacy, or other information provided to
any legislature or regulator related to PGDTs.” Petition Ex. 1, at 6. To the extent that AAP
contends that disclosure of this information would chill its right to petition legislatures or
regulators, that contention is without merit. Although AAP has a First Amendment right to lobby
government officials, it has “no First Amendment right to lobby in secret.” DoorDash, Inc. v.
City of New York, 754 F. Supp. 3d 556, 577 (S.D.N.Y. 2024); see also Wal-Mart Stores, Inc. v.
Tex. Alcoholic Beverage Comm’n, No. A-15-CV-134-RP, 2016 WL 5922315, at *7 (W.D. Tex.
Oct. 11, 2016) (rejecting the contention “that there is a First Amendment right not only to lobby
the government, but to do so secretly”).
AAP’s reliance on White, 227 F.3d at 1227, is unpersuasive. The government officials
there took “extraordinarily intrusive and chilling measures” during the course of their
investigation—including advising the plaintiffs’ lawyer that the plaintiffs had violated the law,
and advising the lawyer that his clients should accept a settlement proposal that would have
required the plaintiffs to cease litigation and cease publication of statements and flyers. Id. at
1223, 1238. Here, in contrast, the Commission has made no determination about the legality of
anyone’s conduct and has not proposed to restrict anyone’s speech. Document request 7 merely
seeks copies of information that AAP has already provided to legislatures or regulators, which
will help the Commission assess possible unlawful acts, such as making false or unsubstantiated
statements, relating to PGDT. See also Twitter, Inc. v. Paxton, 56 F.4th 1170, 1177 (9th Cir. 2022)
(distinguishing White because Twitter could “raise its First Amendment defense if Paxton moves
to enforce the CID”).
C. The CID Was Properly Issued Pursuant to Two Commission Resolutions.
AAP argues that the FTC failed to satisfy 15 U.S.C. § 57b-1(i), because the resolutions
do not support the investigation subject matter described in the CID. Petition, at 15.

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AAP’s focus on the “in or affecting commerce” language of the resolutions, id., is
unavailing for the reasons discussed above in section II.A. Regardless of whether AAP or its
statements are subject to the Commission’s enforcement jurisdiction, the Commission properly
issued the CID to assess whether law violations have occurred, including whether AAP or any
other persons are making deceptive claims about the safety and efficacy of PGDT.
AAP disclaims involvement in advertising or marketing directed to children, id., but its
argument ignores the broader scope of the resolutions. For example, with respect to the 2019
Resolution, AAP overlooks the part of the resolution describing the Commission’s investigation
into whether unnamed entities “have misrepresented or are misrepresenting the safety or efficacy
of such products or services.” Petition Ex. 1, at 16. Similarly, with respect to the 2021
Resolution, AAP overlooks the part of the resolution describing the Commission’s investigation
into unlawful practices “relating to goods or services marketed, in whole or in part, to children
under 18.” Id. at 17. Both resolutions thus properly support the CID’s Subject of Investigation
(“whether the Organization or any other Person . . . have made, or assisted others in making,
false or unsubstantiated representations or engaged in unfair practices in connection with the
marketing and advertising of PGDT . . . to consumers in violation of Sections 5 and 12 of the
FTC Act”). Id. at 1. Although AAP states that its guidance is intended for “medical
professionals, not patients,” Petition, at 15, cases like Waltham Watch Co. v. FTC, 318 F.2d 28,
32 (7th Cir. 1963), recognize the availability of means and instrumentalities liability for
violations of Sections 5 and 12. 17
D. The CID Is Not Overbroad or Unduly Burdensome.
AAP argues that the CID is overbroad and unduly burdensome, given AAP’s limited
resources, the time period for the CID, and the CID’s broad definitions. AAP also argues that the
“significant burden” imposed by the CID is “not proportional to the needs of the investigation.”
Petition, at 16.
AAP fails to provide adequate support for its claim of undue burden. Agency process is
not unduly burdensome unless compliance “threatens to unduly disrupt or seriously hinder” the
normal operations of the recipient’s business. Texaco, 555 F.2d at 882. The test is “not easily
met” because “[s]ome burden on subpoenaed parties is to be expected and is necessary in
furtherance of the agency’s legitimate inquiry and the public interest.” Id.; see also FTC v.
Shaffner, 626 F.2d 32, 38 (7th Cir. 1980) (“[A]ny subpoena places a burden on the person to
whom it is directed. Time must be taken from normal activities and resources must be committed
to gathering the information necessary to comply. Nevertheless, the presumption is that
compliance should be enforced to further the agency’s legitimate inquiry into matters of public
interest.”).
A CID recipient bears the burden of showing how a CID interferes with its ability to
operate its business. See FDIC v. Garner, 126 F.3d 1138, 1146 (9th Cir. 1997) (rejecting claim of
undue burden where recipient failed “to enunciate how these subpoenas constitute a ‘fishing
For further discussion on means and instrumentalities liability, see Dissenting Statement of Comm’r Andrew N.
Ferguson, Joined by Comm’r Melissa Holyoak, In the Matter of Rytr, Matter No. 2323052, at 3-9 (Sep. 25, 2024),
https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-rytr-statement.pdf.
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expedition’”); see also FTC v. Standard Am., Inc., 306 F.2d 231, 235 (3d Cir. 1962) (finding no
undue burden where subpoena recipients “did not adduce a single shred of evidence” to support
their claim that compliance would result in “the virtual destruction of a successful business”).
Although AAP submitted an affidavit from Robert Katchen, AAP’s Senior Vice President
of Information Technology, this affidavit fails to specify how compliance will impose an undue
burden by seriously disrupting AAP’s operations. The affidavit merely claims that responding to
the CID “would require significant time and resources from individuals at AAP whose job
responsibilities are focused on advancing AAP’s mission of improving children’s health,” that
searching electronic communications would be “extremely laborious” and “require significant
time,” and that collecting materials stored on third-party platforms would result in “additional
costs” for AAP. Petition Ex. 4, at 2-3. AAP makes no attempt to quantify how much time or
employee resources it would take to search for and assemble responsive documents, beyond
these conclusory and unsupported statements. The Commission routinely denies petitions to
quash that lack an adequate evidentiary basis. 18
Additionally, AAP’s proportionality argument conflates the narrower standard for
discovery in the Federal Rules of Civil Procedure with the broader scope for inquiries undertaken
by the Commission in investigations. Compare Fed. R. Civ. P. 26(b)(1) (allowing discovery of
“any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case”) with Morton Salt Co., 338 U.S. at 652 (enforcing process provided that “the
inquiry is within the authority of the agency, the demand is not too indefinite and the information
sought is reasonably relevant”). “The standard for judging relevancy in an investigatory
proceeding is more relaxed than in an adjudicatory one.” Invention Submission Corp., 965 F.2d
at 1090; see also In re Johnson & Johnson, 168 F.T.C. 796, 799 (Oct. 18, 2019).
AAP also complains about the default five-year time period for the CID, and the fact that
some specifications apply “regardless of time period.” Petition, at 16. Yet the default five-year
time period is actually shorter than the default time period in other CIDs investigating healthcare
claims. See supra note 12. In addition, Commission staff has already agreed to limit several of
the “regardless of time period” specifications (interrogatories 8 and 13 and document requests 13) so that they only apply from January 1, 2015, to the present. See Petition Ex. 4, at 9.
With respect to the specifications relating to the development and substantiation of any
Covered Statements and AAP’s PGDT-related studies, these time limits (as modified) seek the
production of reasonably relevant information that the Commission needs to conduct its
investigation. AAP claims that its guidance “reflect[s] scientific research and evidence-based
strategies.” Petition, at 5. Examining the evolution of, and substantiation for, Covered Statements
See, e.g., In re Civ. Investigative Demand to Spread Techs. LLC, Dated May 11, 2022, No. 222-3050, 2022 WL
2967367, at *8 (July 18, 2022) (rejecting claim of undue burden based on “conclusory contentions regarding
[petitioner’s] resources, the breadth of its operations, or the burden and expense of responding”); In re Auto Dealers,
157 F.T.C. 1880, 1892-93 (Apr. 21, 2014) (noting that the CID recipient must make a factual record to support a
claim of undue burden); In re The College Network, Inc., 157 F.T.C. 1894, 1905 (Apr. 21, 2014) (denying petition to
quash CID specification where recipient provided “no factual support” for its claimed burden); In re Nat’l Claims
Serv., Inc., 125 F.T.C. 1325, 1327-29 (June 2, 1998) (rejecting petitioner’s burden argument that as a small company
it could not afford the diversion of personnel and financial resources needed for compliance because it failed to
substantiate its burden objection with any evidence).
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and AAP’s PGDT-related studies since January 1, 2015, will help the Commission understand the
extent to which this claim is accurate. The mere fact that AAP might have to “search for
documents that are potentially over a decade old,” Petition, at 16, does not render these
specifications unreasonably broad. Absent a showing of disruption, the sheer amount of
responsive materials does not demonstrate undue burden or overbreadth, since “to define the
reasonableness of a subpoena based on the volume of items identified for production would be to
require the government to ascertain, before issuing a subpoena, the extent of any wrongdoing.
But ascertaining the extent of wrongdoing is itself a primary purpose for the issuance of the
subpoena.” In re Subpoena Duces Tecum, 228 F.3d 341, 350-51 (4th Cir. 2000); see also Garner,
126 F.3d at 1145-46 (mere allegation that subpoena called for thousands of financial documents
and one million other documents was not sufficient to establish burden). Further, “[b]roadness
alone is not sufficient justification to refuse enforcement” of agency process. Texaco, 555 at 882
& n.51 (citing Adams v. FTC, 296 F.2d 861, 867 (8th Cir. 1961)); see also Genuine Parts Co. v.
FTC, 445 F.2d 1382, 1391 (5th Cir. 1971) (FTC should be accorded “extreme breadth” in
conducting its investigations in order to “‘satisfy [itself] that corporate behavior is consistent
with the law and the public interest’” (quoting Morton Salt Co., 338 U.S. at 652)). A recipient of
process must make “a record . . . of the measure of [its] grievance rather than ask [a reviewing
tribunal] to assume it.” Morton Salt, 338 U.S. at 654.
The two remaining “regardless of time period” specifications—document requests 4 and
5—seek information related to the development of the 2018 Policy Statement, 2023
Reaffirmation, and SOC-8. Information responsive to the specifications is already inherently
time limited, depending on when the process for developing these statements began. For
example, according to SOC-8 Appendix A, the earliest step in the SOC-8 development process—
establishing the Guideline Steering Committee—took place on July 19, 2017. 19 In addition,
placing a time limitation that begins on January 1, 2021, on these specifications does not make
sense, given that relevant documents and information were generated earlier.
Finally, we are unpersuaded by AAP’s arguments about the CID’s broad definitions.
Petition, at 16-17. “The party objecting to discovery as vague or ambiguous has the burden to
show such vagueness or ambiguity.” Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648, 655
(D. Kan. 2006). In doing so, a party “should exercise reason and common sense to attribute
ordinary definitions to terms and phrases,” id. (quotation omitted), while avoiding “[h]ypertechnical, quibbling, or evasive objections,” Avalos v. Carpenter, No. 15-cv-00369, 2017 WL
387243, at *1 (E.D. Cal. Jan. 27, 2017). Similar definitions of “Document” and “Collaborative
Work Environment” can be found in other Commission CIDs, as can the use of specifications
seeking “any” or “all” documents. 20 AAP has not met its burden of showing why use of these
common definitions and terms renders the CID overbroad or unduly burdensome.

E. Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23
Int’l J. of Transgender Health S1, S247 (2022),https://doi.org/10.1080/26895269.2022.2100644.
20
See, e.g., Petition to Quash or Limit Civil Investigative Demand Ex. 1, In re Civ. Investigative Demand to MGM
Resorts Int’l, No. 2423028 (Feb. 20, 2024),
https://www.ftc.gov/system/files/ftc_gov/pdf/2423028mgmpetquashpublic.pdf; Petition to Quash or Limit Civil
Investigative Demand to Matthew Thayer Ex. A, In re IM Mastery Academy, No. 2123090, 2023 WL 4014246
(F.T.C. June 5, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/2123090ptqthayer.pdf.
19

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III.

CONCLUSION
For the foregoing reasons, AAP’s petition to quash is denied.

IT IS HEREBY ORDERED THAT AAP’s Petition to Quash the January 15, 2026,
Civil Investigative Demand be, and hereby is, DENIED.
IT IS FURTHER ORDERED THAT AAP shall comply in full with the Commission’s
Civil Investigative Demand no later than 60 days after the Court’s decision on AAP’s Motion for
Preliminary Injunction in AAP v. FTC, No. 1:26-cv-508 (D.D.C. filed Feb. 17, 2026), or at such
other date, time, and location as the Commission staff may determine.
By the Commission.
April J. Tabor
Secretary
SEAL:
ISSUED: March 23, 2026

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3Aede81b8f4e424803. Public record. Not legal advice.