May 28, 2022

Volume XII, Number 148

Advertisement
Advertisement

May 27, 2022

Subscribe to Latest Legal News and Analysis

May 26, 2022

Subscribe to Latest Legal News and Analysis

May 25, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

Beware the COVID-19 Cure: The FTC Issues Warnings to Products Making COVID-19 Treatment Claims

With no approved vaccine, the world waits for the next big breakthrough in 2020’s medical emergency. Some companies already claim to have found it – and subsequently received warning letters from the Federal Trade Commission (FTC) for misbranding. The FTC is targeting companies promoting products with supposed COVID-19 cures, treatment or prevention for making illegal, unsubstantiated claims.

One of the FTC’s objectives is eliminating false and misleading information from the marketplace. The FTC Act defines false advertising as misleading in a “material respect,” which includes both affirmative statements and failure to “reveal facts material in the light of [the product’s] representations[.]” See 15 USC 55(a)(1).

The FTC accomplishes its goal by sending warning letters. Under the FTC Act, a product may be misbranded if it is promoted as a prevention, cure or treatment for COVID-19 – when in fact it has not been approved for such use by the Food and Drug Administration. Since March 2020, the FTC has issued more than 200 warning letters to various businesses that advertise wellness products and other services that allegedly address COVID-19.

In some instances, the claims involved a gross exaggeration of the product’s effectiveness. For example, the website “NothingsIncurable.com” advertised products alleged to “literally make you invulnerable.” The FTC concluded those claims constituted misbranding. But even when promotional statements do not include an explicit falsehood, overpromotion still can cross into misbranding. For example, businesses that claimed, “[this product] will target and increase your immunity to help ward off the COVID-19 virus” or that recommended their products as “scientifically proven to support healthy immune function” also were found to be misbranded.

In another example, a company included “Coronavirus” in the website navigation menu that led consumers to therapy kits intended to provide “specific nutrition” to “balance the terrain of the body to make it conducive to” its particular function. Although the product description did not reference COVID-19, the FTC concluded that the website navigation menu was suggestive enough to warrant a warning for misbranding.

Summary

The FTC warning letters advise businesses that “under the FTC Act, 15 U.S.C. § 41 et seq.,” they are prohibited from advertising “that a product or service can prevent, treat, or cure human disease unless you possess competent and reliable scientific evidence, including, when appropriate, well-controlled human clinical studies, substantiating that the claims are true at the time they are made.” In addition, products that claim or imply the ability to mitigate, prevent, treat, diagnose or cure COVID-19 must be approved drugs under section 505(a) of the Federal Food, Drug and Cosmetic Act. In each case, the FTC required a response from the business within 48 hours, detailing the actions taken to address the FTC’s concerns.

During this unprecedented health crisis, companies that sell consumer products should exercise caution when mentioning COVID-19 in advertising or promotional statements. Mentioning COVID-19 in relation to a product, even if the product is intended to address more routine health issues, could be misleading.

© 2022 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 163
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Molly E. Flynn Partner Philadelphia pre-trial activities, written discovery, fact and expert depositions,motion practice
Partner

Molly E. Flynn focuses her practice on the defense of pharmaceutical and medical device companies in complex litigation, including actions brought by state attorneys general, personal injury actions and mass tort litigation.

Molly serves as local and national counsel in litigation involving medications and medical devices, including antipsychotics, anticoagulants, antiepileptics, and pelvic mesh, and defends against a variety of claims, including false claims act violations, consumer protection act violations and negligent failure-to-warn. Molly also has significant...

215-988-2836
Kate M. Wittlake Associate San Francisco Litigation products Liability Mass Tort
Associate

Kate M. Wittlake has experience with a broad range of complex commercial litigation issues and health care law. Prior to joining the firm, Kate was an associate practicing health care and litigation in Sacramento. She brings her knowledge of health care law to support large pharmaceutical companies and medical device manufacturers on a broad range of issues in the firm’s products liability practice.

Kate previously sat on the Board of Operation Protect and Defend, a nonprofit group that teams with judges and attorneys to bring Constitutional Law curriculums and the...

415- 591-7529
Advertisement
Advertisement
Advertisement