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FTC and FDA Warn Companies About Coronavirus Treatment Claims

As fears escalate over the spread of coronavirus (COVID-19), scared consumers may be more susceptible to claims by companies offering cure-all remedies. The Federal Trade Commission (FTC) and Food and Drug Administration (FDA) are aware and looking out for consumers. The two agencies sent joint warning letters to seven companies – Vital SilverQuinessence Aromatherapy Ltd.N-ergeticsGuruNanda, LLCVivify Holistic ClinicHerbal Amy LLC, and The Jim Bakker Show – demanding that they immediately stop making unsupported health claims and cease advertising unapproved and misbranded products as medicines.

The warning letters admonish the businesses for violating Section 5 of the Federal Trade Commission Act and the Food, Drug, and Cosmetic Act (FD&C Act). For example, the Jim Bakker Show apparently touted its Silver Solution as “proven … to kill every pathogen it has ever been tested on … and it can kill any of these known viruses.” However, the FDA makes clear that no product currently exists that has been confirmed to treat or cure COVID-19. Products that are not approved by the FDA but marketed as safe and/or effective for the treatment or prevention of a particular virus violate sections 301, 331, and 502 of the FD&C Act. The companies were given 48 hours to respond and outline what steps they are taking to address the issues raised by the FTC and FDA. The letters bluntly advise that failure to immediately correct the violations can result in enforcement action.

In a press release, the FTC confirmed that “coronavirus-related advertising claims will be subject to exacting scrutiny,” including “product names, URLs, metatags, and other ways companies can suggest or imply claims to consumers.” Given the potential harm to consumers who rely on unproven cures to prevent contracting coronavirus, the FDA is taking urgent measures to protect consumers from products that, without approval or authorization, claim to mitigate, prevent, treat, diagnose, or cure COVID-19.

While the FTC and FDA crack down on fraudulent cures, the Environmental Protection Agency (EPA), which has jurisdiction over products classified as pesticides (including anti-microbials and disinfectants), issued a statement that lists certain products as effective against killing coronaviruses on surfaces. The EPA advises potential purchasers to check the EPA registration number to confirm that the product is effective against the specific pathogen of interest.

It’s a point we’ve made before but that bears repeating any time a company states or implies that a product could treat or cure a disease or condition: these claims not only must be backed by competent and reliable scientific testing, but may require FDA approval. Failure to follow these standards of conduct is not just potentially misleading to consumers but could compromise their health. That’s why these types of false claims risk agency action and a lot of bad press.

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 71

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About this Author

Sheila Millar, Keller Heckman, advertising lawyer, privacy attorney
Partner

Sheila A. Millar counsels corporate and association clients on advertising, privacy, product safety, and other public policy and regulatory compliance issues.

Ms. Millar advises clients on an array of advertising and marketing issues.  She represents clients in legislative, rulemaking and self-regulatory actions, advises on claims, and assists in developing and evaluating substantiation for claims. She also has extensive experience in privacy, data security and cybersecurity matters.  She helps clients develop website and app privacy policies,...

202-434-4646
Tracy Marshall, Keller Heckman, regulatory attorney, for-profit company lawyer
Partner

Tracy Marshall assists clients with a range of business and regulatory matters.

In the business and transactional area, Ms. Marshall advises for-profit and non-profit clients on corporate organization, operations, and governance matters, and assists clients with structuring and negotiating a variety of transactions, including purchase and sale, marketing, outsourcing, and e-commerce agreements.

In the privacy, data security, and advertising areas, she helps clients comply with privacy, data security, and consumer protection laws, including laws governing telemarketing and commercial e-mail messages, contests and sweepstakes, endorsements and testimonials, marketing to children, and data breach notification. Ms. Marshall also helps clients establish best practices for collecting, storing, sharing, and disposing of data, and manage outsourcing arrangements and transborder data flows. In addition, she assists with drafting and implementing internal privacy, data security, and breach notification policies, as well as public privacy policies and website terms and conditions.

As to intellectual property matters, Ms. Marshall helps clients protect their copyrights and trademarks through registration, enforcement actions, and licensing agreements.

She also represents clients in proceedings before the Federal Communications Commission and Federal Trade Commission.

Ms. Marshall is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals (IAPP) and a contributing author of Beyond Telecom Law Blog and Consumer Protection Connection.

Education: Washington and Lee University (B.A., 1997); American University, Washington College of Law (J.D., 2002).

Admissions: District of Columbia; Maryland

Memberships: American Bar Association

202-434-4234