On February 1, 2016, the World Health Organization (“WHO”) declared the cluster of microcephaly cases and other neurological disorders related to the Zika virus a health emergency. See WHO website. According to the WHO, more than 60 global and local partners are actively participating in the Zika virus response. Id. The strategic response plan “places a greater focus on preventing and managing medical complications caused by Zika virus infection” and “outlines four main objectives” including (1) detection; (2) prevention (3) care and support; and (4) research. The Zika strategic response also focuses on “communicating risks with women of child-bearing age . . . so that people have the information they need to protect themselves.” See strategic plan. Yet amid these coordinated efforts, the United States Federal Trade Commission (“FTC”) and the Consumer Reports organization has had to turn its attention towards protection efforts of a different kind: protecting American consumers against scams targeting fears of Zika infection.
Earlier this month, the FTC sent ten warning letters to companies selling products that allege to provide protection against the Zika virus. See warning letter. According to the letter, the companies have made claims that its products “repel[ ] the mosquitos that carry Zika, or otherwise protects users from the virus.” Id. The FTC Act, 15 U.S.C. §§ 45, 52, prohibits “false or misleading advertising claims and requires that health-related claims be supported by competent and reliable scientific evidence at the time the claims are made.” Id. (emphasis added). Interestingly, the warning letter defines that “competent and reliable scientific evidence” is a “well-controlled human clinical testing using the species of mosquitos that carry the disease in question, and must demonstrate the effects last as long as advertised.” Id. If a company cannot support its claims with such evidence, the FTC warns it must “delete or revise [such claims] immediately.”
Similarly, Consumer Reports has taken aim at “dubious anti-Zika products” including: anti-Zika wristbands, ultrasonic pest repellers, natural repellents, anti-Zika sprays, anti-Zika condoms and investment scams related to all of the former products. See Report.
From a legal standpoint, the FTC has enforcement authority in the form of seeking voluntary compliance through a consent order, filing an administrative complaint or initiating litigation in federal district court. Companies in receipt of warning letters or other negative attention from the FTC or an Attorney General’s Office—NY recently issued cease-and-desist letters to companies marketing similar products—should also be wary that consumer class-actions will likely follow. Plaintiffs are often emboldened to file copy-cat allegations where the Government initiates much of the investigation and provides a framework of agency enforcement on which to base their class-action complaints.
To date, we are unaware of any individual or class action civil lawsuits filed against product manufacturers that claim to protect against Zika.