A Utah-based health company has tossed a legal grenade at the U.S. Federal Trade Commission, accusing it of flexing muscles it doesn’t have when it comes to regulating what companies can say about their products.
Xlear Inc., a manufacturer of saline nasal sprays and other hygiene items stocked on American drugstore shelves, filed suit this week against the FTC. The gripe? The agency’s longstanding requirement that companies must back up their advertising claims with real evidence—or as the FTC puts it, “substantiation.”
Xlear says that’s not how the law works.
The company is asking a federal court to declare that just because a claim is unsubstantiated doesn’t mean it’s deceptive under the FTC Act. That Act, Xlear argues, doesn’t say a word about requiring proof up front. “The FTC has been making up rules that don’t exist in the law,” said Rob Housman, one of the company’s attorneys, citing a recent Supreme Court ruling that stripped away much of the deference federal agencies once enjoyed in interpreting statutes.
That high court ruling—Loper Bright Enterprises v. Raimondo—delivered a seismic shift, weakening agency authority and emboldening businesses like Xlear to push back. Housman says the FTC is now in violation of that decision by trying to enforce standards Congress never actually put on paper.
This lawsuit comes in the wake of a dropped case: In 2021, the FTC accused Xlear of marketing its spray as a COVID-19 remedy without any solid science. The agency warned such unproven health claims posed “a risk to public health and safety.” But in March 2025, the FTC quietly dropped the suit after four years of legal wrangling. No explanation given.
Xlear says it spent more than $3 million defending itself and now wants to make sure that sort of “vexatious litigation” doesn’t happen again. Their new lawsuit calls out what they see as a pattern of bureaucratic mission creep.
The case—Xlear Inc. v. Federal Trade Commission—is now pending in federal court in Utah. No legal team has appeared for the FTC yet. But given the recent wave of Supreme Court decisions dialing back federal power, this fight may just be getting started.
