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Federal Agencies Crack Down on Coronavirus Advertising

As coronavirus (COVID-19) spreads across the country, some companies are advertising their products’ usefulness in preventing or treating the disease.  But federal agencies—including the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC)—are close behind.  Over the past few weeks, they have together sent more than a dozen warning letters to COVID-19 advertisers, insisting that they cease making coronavirus claims.

As a quick reminder, both the FTC and FDA have authority, under certain circumstances, to prosecute marketing that may mislead consumers.  The FTC Act prohibits “unfair or deceptive acts or practices.”  According to the FTC, this covers any “material representation, omission or practice that is likely to mislead a consumer acting reasonably in the circumstances,” including health claims lacking proper substantiation.  And if the FTC decides a company’s ads are deceptive, it may “prosecute any inquiry necessary.”

The FDA’s authority—addressed mostly to “false or misleading” labeling of food, drugs, cosmetics, supplements, and devices—is more defined in scope.  But if the FDA concludes a company has violated one of its rules, it still has a range of potential enforcement options at its disposal—from warning letters, to product seizures, to criminal prosecution.

In the midst of the pandemic, some manufacturers have found themselves in the crosshairs of these agencies.  The FDA and FTC together have started warning companies against “making deceptive or scientifically unsupported claims about their ability to treat coronavirus.”  Their letters to date have largely targeted “alternative medicine” purveyors:  One company claimed that its salt therapy is an “anti-viral” and, once administered, there “will be a very slim chance you will catch” COVID-19.  Another company claimed that its colloidal silver supplement—literally, tiny silver particles—“provides a real prevention regimen for a number of maladies, including the Corona Virus known as COVID19.”  A third boasts, point blank, that its “Essential Oils” will “Protect Against Coronavirus.”  And the examples go on.  In each instance, the agencies have instructed the company immediately to correct its labeling and promotional materials; failure to do so, the agencies warn, may result in “legal action, including, without limitation seizure and injunction.”

With all that said, there remains the risk that this uptick in enforcement action—fanned by the rampant spread of the disease—could turn into overzealousness, which may deter legitimate claims relating to COVID-19.  To date, however, neither the FTC nor the FDA has zeroed in on companies that can actually substantiate claims about coronavirus.  And for good reason.  For example, the Environmental Protection Agency (EPA)—which regulates household disinfectant products—has expressly approved a number of products for use in disinfecting surfaces with COVID-19.  Those manufacturers, to receive EPA approval, must substantiate their claims with actual data.  But the EPA—like the FTC and FDA—has reiterated that it will issue “stop-sale orders” and institute “penalty actions” for products that are misbranded or unregistered.

To date, the federal crackdown on coronavirus advertising has stayed focused in scope, but that could change as the crisis continues.  In the meantime, manufacturers should remember that while the virus is novel, the blueprint for compliance remains the same.  If a manufacturer plans to market its product as helping to prevent (or treat) COVID-19, it should first conduct sufficient testing to substantiate that claim.  And with federal agencies prepared to wield their powers against such marketing efforts, companies making claims about COVID-19—whether for cleaning supplies (EPA), hand sanitizers (FDA), or supplements (FTC)—should closely review their advertising to ensure it complies with applicable rules and regulations.