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Law professor accuses university of violating Federal Trade Commission rules with mask mandate

"You are promoting the idea that the mask can prevent or treat a disease, which is an illegal deceptive practice," David Clements tells New Mexico State.

Updated: September 19, 2021 - 10:44pm

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A business law professor who has been put on paid leave for refusing to wear a mask in class is defending his actions with an unexpected authority: the Federal Trade Commission (FTC).

"[B]y requiring employees to wear a mask, you are promoting the idea that the mask can prevent or treat a disease, which is an illegal deceptive practice," David Clements, who teaches consumer law at New Mexico State University (NMSU), told provost Carol Parker in a Sept. 13 letter.

It's the first legal argument against mask mandates on the basis of FTC rules that Just the News has heard. A handful of lawsuits have been filed against university COVID vaccine mandates that refuse to exempt employees who have recovered from the infection and have natural immunity.

Clements made his stand against the university's COVID-19 mandates in the classroom, telling students he wasn't wearing a mask because "I haven't lost my mind," according to a video he posted. He's rejecting the university's vaccination-or-testing rules that take effect Sept. 30 as well, because "I will not take an experimental drug" and "I will not be a lab rat."

Current NMSU policy requires unvaccinated employees to wear a mask at all times indoors on campus. Vaccinated employees can remove masks with 6 feet of distance, such as professors giving lectures.

His refusal to wear a mask prevented him from attending his own award ceremony for teaching excellence at the business school, Clements tells students in the video. 

"I'm being forced to consume or use a device against my will, and it's not part of the science," Clements said in a phone interview Friday as he was getting on a plane. 

He has been traveling to election integrity rallies and documenting them on Telegram. "Audit. Audit. Audit," he wrote from an Oregon rally on Sept. 11. "Arrest and throw the godless commies out."

While Clements has to exhaust administrative remedies before he can pursue litigation against NMSU, he said there are "all kinds of legal theories" he could pursue "in good faith."

Defending Jan. 6 defendants

Clements has been a lightning rod on campus going back to the 2020 election, when he said he asked for "civility among faculty members" who were calling President Trump's supporters anti-Semites. 

That led a coterie of professors to research his political background, including a 2014 run for U.S. Senate in the Republican primary, and "flush me out of the conservative closet, which is fine," he told Just the News.

A former full-time prosecutor who still has "special prosecutor status" in some cases, Clements has strong views on the treatment of January 6 Capitol riot defendants. "A misdeameanor charge doesn't exactly scream murder" worthy of lengthy pretrial detention, he said.

After the Capitol riot, he publicly criticized NMSU President John Floros for jumping to conclusions about the protesters and ignoring footage of Capitol Police removing barriers for them. 

"What I saw was the lack of parity" compared with reactions to left-wing violence such as lawyers charged with throwing molotov cocktails during George Floyd protests, he said. Fox News host Tucker Carlson interviewed him about his criticisms.

Several professors started claiming on a faculty listserv that Clements was "stirring up hatred against Jews," prompting him to accuse them of defamation and the university of creating a hostile work environment. NMSU took down the listserv, he said, but some faculty are still stalking him on social media with fake accounts.

Clements alludes to this history — and a "frivolous hearing" before an NMSU official regarding his hostile environment complaint — in his Sept. 13 letter to Provost Parker.

Written in response to administrative letters dated Aug. 20, Aug. 27 and Sept. 8, the professor's letter warns the university and administrators they are "subject to civil and criminal liability" for "clearly illegal" COVID rules.

He told Just the News these were "boilerplate" letters putting him on emergency suspension, banning him from interacting with students, and providing the initial findings against him, but he didn't have them handy to share.

NMSU forwarded a request from Just the News to see the letters to its general counsel's office, which said it couldn't answer until at least Oct. 4 under public records protocol.

Clements' argument against the mask mandate cites published medical research on the general inefficacy of masks at preventing respiratory infections, particularly cloth masks, which were less effective than the maskless "control arm" in a British Medical Journal study in 2015

He noted that Anthony Fauci coauthored a 2008 Journal of Infectious Diseases paper that concluded "the vast majority of influenza deaths" in the 1918-1919 pandemic "resulted from secondary bacterial pneumonia." 

Masks are well-understood traps for bacteria, 50 times larger than viruses, and university policy increases the risk of NMSU faculty becoming infected and "having a far worse outcome," he said.

Because the FDA's April 2020 emergency use authorization for face masks explicitly said they may not be labeled to imply they are "intended for antimicrobial or antiviral protection or related, or for use such as infection prevention or reduction," the university is violating FTC rules.

"It is unlawful to advertise that a product or service can prevent ... disease unless you possess competent and reliable scientific evidence … substantiating that the claims are true," he wrote, citing the FTC Act.

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