In April 2021, the Federal Trade Commission announced that it forwarded a tenth set of warning letters to marketers, directing them to stop making unsubstantiated express and implied claims that their products and therapies can prevent or treat COVID-19. According to the FTC, all of the marketers that the FTC contacted complied with the agency’s demand to stop making such claims.
The warning letters cite the COVID-19 Consumer Protection Act, which provides that for the duration of the COVID-19 public health emergency, the FTC is entitled to seek civil penalties of up to $43,792 per violation from marketers that make deceptive claims related to the treatment, cure, prevention, mitigation or diagnoses of COVID-19, or a government benefit related to COVID–19.
Importantly, the Federal Trade Commission did not just contact marketers regarding these claims. In instances where such claims were disseminated via social media or other platforms, the FTC copied them, as well, suggesting that the FTC is requesting the assistance of platform operators. Such platforms include Facebook, Instagram, Shopify, Twitter and YouTube. Query whether the FTC might potentially seek to hold platform operators liable for permitting the dissemination of such claims, going forward.
The warnings targeted numerous treatments and therapies, such as chiropractors, exercise, peptide therapies, vitamin injections, infrared saunas and dietary supplements.
FTC lawyers have demonstrated a commitment to COVID-19 related enforcement, including the first action under the COVID-19 Consumer Protection Act that seeks monetary penalties for alleged deceptive marketing of purported treatments. Specifically, the marketer has been charged with falsely claiming that its vitamin D and zinc products are scientifically proven to treat or prevent COVID-19.
In an FTC blog post entitled “Advertisers: Stop unproven COVID claims or face penalties under new law,” the agency states “the resounding message to others is to take down your COVID misrepresentations now.”
Consult with an experienced FTC defense attorney if you are interested in discussing applicable claim substantiation requirements and FTC regulatory policy.
Richard B. Newman is an FTC attorney at Hinch Newman LLP. Follow FTC defense attorney on National Law Review.
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