STATE OF ARKANSAS, ex rel.
STATE OF ARKANSAS, ex rel
SOUTHERN COLLEGE OF NATUROPATHY
No. CIV 2002-8240
Now on this ______ day of April, 2003, this matter comes on for consideration by the Court, the Plaintiff and Separate Defendants HHA and McCain having announced to the Court that the Parties have reached a settlement of this matter; Plaintiff State of Arkansas ex rel. Mike Beebe, Attorney General, appears by and through its counsel, Lamar B. Davis, and Separate Defendants appears by and through their counsel, Blair Arnold. From the facts and matters before the Court, and by agreement of the Parties, the Court finds and orders:
1. Scope of Consent Judgment. The injunctive provisions
of this Consent Judgment are entered pursuant to Arkansas Code
Annotated 4-88-113. and are applicable to Separate Defendant,
Marijah MeCain ("McCain"), and the Herbal Healer Academy
Inc., an Arkansas corporation ("HHA"), and all of its
subsidiaries and affiliates, general partners, officers, directors,
employees, agents, servants, and representatives of any of them,
and the successors and assigns of each thereof, and all persons,
corporations, partnerships, and other entities acting in concert
or participating with MCCAIN and HHA, who have actual or constructive
this Consent Decree. By entering into this Consent Decree (the "Decree") neither McCain nor HHA make any admission of liability as to any of the claims or practices raised by the Attorney General in Plaintiff's Complaint or Petition for Preliminary Injunction.
2. Release of Claims. The State acknowledges by its execution hereof that this Consent Decree constitutes a complete settlement and release of all claims alleged by the Plaintiff State v. Southern College of Naturopathic Medicine, et al - CV 2001-8480 on behalf of the State against MCCAIN and ERA, with respect to all claims, causes of action, damages, costs, and penalties which were asserted prior to the Effective Date under the above-cited consumer protection statutes and relating to or based upon the acts or practices which are the subject of the Plaintiff's Complaint. The State agrees that it shall not proceed with or institute any civil action or proceeding based upon the above-cited consumer protection statutes against the separate Defendants ERA and McCain, including but not limited to an action or proceeding seeking restitution, injunctive relief, fines, penalties, attorneys' fees, or costs, for any business activities prior to the Effective Date which relate to the subject matter of the Plaintiff's Complaint.
3. Preservation of Law Enforcement Action. Nothing herein precludes the State from enforcing the provisions of this Consent Decree, nor from pursuing any law enforcement action with respect to the acts or practices of MCCAIN and HHA not covered by this Consent Decree or with respect to any acts or practices of MCCA1N and HHA engaged in after the Effective Date of this Consent Decree.
4. Compliance with and Application of State Law. Nothing herein relieves MCCAIN and HHA of its duty to comply with applicable laws of the State nor constitutes authorization by the State for MCCAIN and HHA to engage in acts and practices prohibited by such laws. This Consent Decree shall be governed by the Arkansas law.
5. Non-Approval of Conduct. Nothing herein constitutes approval by the State of MCCAIN and HHA's past or future business practices. MCCAIN and HHA shall not make any representation to the contrary.
6. Preservation of Private Claims and Relation to Private Settlements. Nothing herein shall be construed as a waiver of any private rights, causes of action, or remedies of any person not a party to this Consent Decree against MCCAIN and HHA with respect to the acts and practices covered by this Consent Decree.
7. Use of Settlement as Defense. MCCAIN and HHA acknowledge that it is the State's customary position that an agreement restraining certain conduct on the part of a defendant does not prevent the State from later addressing conduct that could have been prohibited, but was not, in the earlier agreement, unless the earlier agreement expressly limited the State's enforcement options in that manner. Therefore, nothing herein shall be interpreted to prevent the State from taking enforcement action to address conduct occurring after the entry of this Consent Decree that the State believes to be in violation of the law, The fact that such conduct was not expressly prohibited by the terms of this Consent Decree shall not be a defense to any such enforcement action.
8. McCain and HHA agree to cooperate fully with the Attorney General's Office in the investigation and prosecution of this lawsuit and claims arising therefrom,
9. Definitions. The following definitions shall be used in interpreting the terms of this Consent Decree.
A. "Effective Date" means the date this Consent Decree is entered.
B. Naturopathic Doctor Degree Program means Herbal Healer Academy's Academy Correspondence Naturopathic Doctoral Degree Program referred to in Plaintiff's Complaint or any similar degree conferring program offered by McCain or HHA.
A. Business Practices and Naturopatbic Doctoral Degree
10. Prohibiton of False Statements of Fact. MCCAIN and HHA shall not make any representation, directly or by implication, that McCain or HHA have any ability to confer degrees as "naturopathic doctors," or "naturopathic physicians" doctoral degrees, nor the ability to assist anyone in obtaining degrees as "naturopathic doctors," or "naturopathic physicians".
11. Naturopathic Doctor Degree Program Representations. MCCAIN and HHA shall not represent that it can disseminate, or in fact disseminate, documents or certificates stating that the holder is a "naturopathic doctor," "naturopathic physician, " "N.D.," "N.M.D." or any other similar designation, which would indicate that the recipient is a doctor or physician.
12. Recommended Use of Products. McCain and HHA shall not make any false representations related to the quality, use, or recommended use of any HHA health care product.
B. Practice of Medicine
13. MCCAIN and HHA shall not diagnose, suggest, recommend,, prescribe, or administer forms of treatment, or healing for the intended relief, or cure of physical diseases, ailments, injuries, or conditions, while using the title "doctor of naturopathy' or "naturopathic physician," or use the abbreviations "Dr.", "M.D.", "N.M.D," and "ND." in connection with said defendant's name or likeness so as to indicate that said defendant is a medical or naturopatbic doctor, except in jurisdictions wherein McCain is licensed or otherwise allowed to practice using those titles.
14. MCCAIN and HHA shall not facilitate or pertnit unlicensed persons to hold themselves out as being able to diagnose, suggest, recommend, or administer forms of treatment or healing for the same intended relief or cure of physical diseases, ailments, injuries, or conditions, while using the title "doctor of naturopathy" or "naturopatbic physician," or use the abbreviations "Dr.", "M.D.", "N.M.D", and 'N.D." in connection with said defendant's name or likeness so as to indicate that said defendant is a medical or naturopathic doctor.
15. MCCAIN and HHA shall not sell or offer to sell any medical,
healthcare, or healing art
product or service while using the title "doctor of naturopathy" or "naturopathic physician,"
nor use the title abbreviations "Dr.", "M.D.", and "N.D" in connection with said defendant's
name or likeness so as to indicate that said defendant is a medical doctor.
16. Print Media Communications. This agreement shall apply to communications via print media, including, but not limited to, magazines, catalogues, books, handbill, posters and various other printed advertisements.
17. Internet Communications. This agreement shall apply to communications via the Internet, including E-mail and Internet web pages.
18. Timing. This injunction shall apply to all print media and Internet communications from the effective date with the exception of HHA's catalogues that are presently printed, From the effective date until June 1, 2003, these catalogues maybe disseminated so long as each shall include an insert that is exhibit 1, attached hereto. McCain expressly represents as part of this Consent Decree that all certifications and representations contained in Exhibit 1 are true and accurate. After June 1, 2003, all of the injunction terms of this Consent Decree shall apply to all communications of the Separate Defendants.
19. HHA and McCain agree not to knowingly place on any Internet web site controlled by them or knowingly facilitate or assist others to place on their web sites any false statements concerning this litigation or the office of the Arkansas Attorney General.
20. Payment Amount. HHA and McCain have paid and the State hereby acknowledges the receipt of Ten Thousand Dollars ($10,000). This sum shall be deposited into the Consumer Education Fund and shall be held in trust by the Attorney General for uses directly related to the Attorney General's consumer protection efforts
21. Notice. The Plaintiff agrees to notify McCain and HHA in writing of any suspected violation of the terms of this Consent Decree. Plaintiff's notification will be considered accomplished when sent to McCain and HBA in writing arid addressed to McCain and HHA's last known business address sent via certified mail with return receipt. Plaintiff shall give McCain and HHA 30 days written notice before filing a motion or other pleading seeking contempt of court or other sanctions for violation of this Consent Decree unless the Plaintiff determines that the suspected violations are such that the public health or safety is endangered. in that case, the Plaintiff will give the separate defendants written notice as contemplated above, but may also proceed to seek enforcement of the Consent Decree in the Plaintiffs sole discretion.
22. MCCAIN on her own behalf and on behalf of HHA acknowledges that she has read the foregoing Consent Decree, is aware of the right to a trial in this matter, and has waived that right.
23. MCCAIN and HHA admit the jurisdiction of the Court and
consent to the entry of this
24. MCCAIN AND HHA state that no promise of any kind or nature whatsoever (other than the written terms of this Consent Decree) was made to induce these defendants to enter into this Consent Decree, that they have entered into this Consent Decree voluntarily, and that this Consent Decree constitutes the entire agreement between MCCAIN, HHA and the Slate.
IT IS SO ORDERED this 15th day of May 2003
Honorable Barry Sims, Circuit Judge
Lamar B. Davis, Assistant Attorney General
for the State of Arkansas
Blair Arnold, Attorney for Marijah McCain and HHA.
Contrary to anything contained in this catalog or to any impression you may have received from reading portions of this catalog, Marijah McCain is not a medical doctor (M.D.) or allopathic physician. Due to the laws of the State of Arkansas, she is not entitled to use the title "Doctor of Naturopathy", "Naturopathic Physician", "Dr", "M.D.", "N.MD." and "ND." in connection with the sale of products in this catalog, nor is Herbal Healer Academy entitled to use any of those titles with regard to Marijah McCain in the sale of naturopathy correspondence courses because of potential confusion of consumers who might otherwise think she is a medical doctor (M.D.) or allopathic physician, In considering the purchase of products or correspondence courses from this catalog, you should not give consideration to any of the portions thereof which might contain any such titles, and you should be aware that Marijah McCain is not a medical doctor (M.D.), or allopathic physician, nor is she a primary health care physician,
Marijah McCain is a traditional naturopath. She is licensed by the District of Columbia in the United States as a Naturopath.  She is Board certified as a Naturopath and a Naturopathic Physician by the American Naturopathic Medical Certification & Accreditation Board, Inc. She is certified as a Master Herbalist by the Natural School of Healing, and she is certified as a DiHom (Homeopath) by the British Institute of Homeopathy. She is certified as a Nutritional Consultant by the American Association of Nutritional Consultants. She is certified as an Aromatherapy Practitioner by the Institute of Unami Medicine. She was certified as completing the Bradford Blood Assessment and Microscopy training Program from the Bradford Research Institute. She has a degree of Medicine (Alternative Medicines) from the Indian Board of Alternative Medicines, registered by the Government of West Begal under Act XXVI of 1961, based upon the Central Government Act XXI of 1860. She is the 1998 recipient of the Seva-Chakra Award of Calcutta, India,
She is a member of the American Naturopathic Medical Associations the Texas State Naturopathic Medical Association, and. the International Alternative Medical Association among other groups and a Fellow of the European Medical Association.
The Herbal Healer Academy is a certified in member of the American Naturopathic Medical Certification and Accreditation by that body. It has also received a Recognition Diploma from the Comision De Educacion a Distancia.
. § 2-3309.1(4) of Sub Chapter IX of the Health Regulations in the District of Columbia state that their licensees of naturopathy or naturopathic healing may use the title "Doctor of Naturopathy." However, Marijah McCain expressly disclaims the use of this title in the State of Arkansas in particular, and outside the District of Columbia in general, except where any given domestic or foreign jurisdiction recognizes her credentials.