Closing Argument (1)

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This prosecution is not consumer driven. It is an ill-conceived creation of the State. There is no evidence that a single consumer complaint was ever filed with the State concerning the efficacy of T-Up's products or any representations made by the company. In fact, the State did not introduce any expert testimony to establish that Respondents' products do not provide precisely the medical benefits represented. Rather, the State acknowledged that its case was focused on whether the literature Respondents provided to the State, which the State provided to its experts, supported the Respondents' representations in the Tape and Brochure.

Mr. Ziperman stated:

"... we are not asking our experts ... to ... give any opinion testimony ... whether or not this product worked... . They're giving an opinion that the literature doesn't support their claims." (Tr. at 709).This is a remarkable concession. Having contacted many T-Up and cesium chloride users, the State likely was satisfied that substantial benefits were safely being derived by consumers using T-Up and cesium chloride. However, this information was immaterial in the State's decision to attempt to put this company out of business and eliminate the availability of its products. The fact that thousands of consumers are benefiting from the product was immaterial to the State's decision making process.

The failure of the State to produce any expert witness who was familiar with the complex composition of aloe vera, who also was qualified to opine on how aloe vera effects the immune system and the illnesses related to the immune system, is fatal to its case. Drs. Humphrey and Gallant's mandate from the State was to review State Exhibit 56 and opine that there were no FDA approved Phase I-III studies in State Exhibit 56. Since Phase III studies are typically multi-state, multi-institutional, double blind controlled studies, it was not difficult to thumb through State Exhibit 56 to determine that there were no such studies. Respondents would have so conceded. Drs. Humphrey and Gallant were unqualified to opine on the quality, reliability and conclusions of the aloe vera researchers in State Exhibit 56, as well as the significance of the unprecedented avalanche of anecdotal evidence (which, in many instances was confirmed by medical records) because of their acknowledged ignorance of aloe vera.

Had there been credible complaints from consumers indicating that the Respondents had made deceptive representations, then perhaps the State would have been justified in initiating this proceeding. However, the antithesis occurred. Lacking a single consumer complaint, the State went out and solicited consumers who otherwise were satisfied with their relationship with the Respondents1 and interrogated them in such a manner as to develop support for the position the State wished to assume.

Similarly, had there been a legitimate concern over the safety of the products, the State would have sought immediate injunctive relief to prevent the continued sale of T-Up and cesium chloride. The State's failure to seek such relief is most telling. Respondents are still selling the same products. The State knows that Respondents' products are safe. If it suspected otherwise and failed to act, it would have failed in its obligation to protect the public's interest. Although there was much "hullabaloo" in the State's opening statement concerning the safety of Respondents' products, no evidence was introduced to indicate they are unsafe. To the contrary, the affirmative evidence established their safety. Appropriate disclosure of potential side effects was provided.

The State's primary consumer witnesses, Ms. Daley and Ms. Crabbe, are relatives of patients who were hopelessly ill and had been left by conventional medicine to die. Neither had considered the Respondents in any way responsible for the ultimate death of their loved ones or for having made deceptive representations, until after contacted by the State. Then they incredulously claimed that Allen Hoffman ("Hoffman") or an employee of T-Up had guaranteed a 100% miraculous cure for their Stage IV cancer-infested loved ones. These witnesses evolved from the investigation of Dr. MacNay and his intravenous use of cesium chloride and aloe vera. But for the investigation of Dr. MacNay, the State would have had no more interest in prosecuting the Respondents than it has in prosecuting the sellers of aloe vera products who outrageously and falsely advertise their products as containing levels of aloe vera that they do not possess and who promise beneficial effects to one's health that are impossible to achieve from the diluted and altered aloe vera products they are selling. (See claims made in the Internet aloe product materials used by the State (D327) in a futile attempt to show T-Up's lack of concentration, compared to the findings in The Brevard Teaching and Research Laboratories ("BTR") report on these same products (D363B)).

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