The COVID-19 Consumer Protection Act (COVID-19 Act) was passed last year to protect the public from deceptive marketing related to the treatment, cure, prevention, mitigation, or diagnosis of COVID–19, or any government benefit related to COVID-19, by making such practices illegal under the Federal Trade Commission Act (FTC Act). The COVID-19 Act also authorizes the Federal Trade Commission (FTC) to seek civil monetary penalties for first-time violations of the COVID-19 Act, a remedy not normally available under the FTC Act.
Last month, the FTC for the first time charged a St. Louis-based chiropractor and his company (the “defendants”) with violating both the COVID-19 Act and the FTC Act. According to the complaint filed by the U.S. Department of Justice on behalf of the FTC, the defendants engaged in the deceptive marketing of products containing vitamin D and zinc, claiming that these ingredients were scientifically proven to treat or prevent COVID-19 and “were as, or more, effective than available COVID-19 vaccines.” The complaint also alleged that the defendants’ marketing claim lacked “valid factual or scientific bases” and they were “selling their products by disseminating misinformation, exploiting fears in the midst of a pandemic, and posing a significant risk to public health and safety.”
It is important to note that, as stated in the complaint, a warning letter from the FTC was sent to the defendants in May of 2020, indicating that the FTC believed the defendants were making unsubstantiated claims about its products’ ability to treat or prevent COVID-19, and, in doing so, such claims were unlawful under the COVID-19 Act. However, the defendants continued making such claims following receipt of the warning letter.
According to the FTC Acting Chairwoman, Rebecca Kelly Slaughter, “the defendants’ claims that their products can stand in for approved COVID-19 vaccines are particularly troubling; we need to be doing everything we can to stop bogus health claims that endanger consumers.”
This regulatory action serves as a reminder to all companies in the healthcare industry and involved with COVID-19 that marketing claims must be properly substantiated with competent and reliable scientific evidence in order to avoid potential violations of the COVID-19 Act and FTC Act. If you have questions about your own marketing practices in this area, please contact Michael Brown at firstname.lastname@example.org or 949-636-8128.
Michael Brown is a Partner with our California-based team, bringing over three decades of senior in-house counsel experience in the area of business, employment, healthcare, compliance, and privacy. Michael has served as in-house counsel to healthcare giants such as Tenet HealthSystems (hospitals), Apria Healthcare (Home medical equipment, respiratory and infusion therapy); Clarient, a GE Healthcare company (clinical laboratories); and Edwards Lifesciences (medical device) where he also was a member of the AdvaMed Diagnostic and Compliance Committee that revised the AdvaMed Code of Conduct for the medical device industry.