Last week at our #BakerDigitalForum2020 (BakerHostetler’s forum on advertising, e-commerce, data privacy & security law) we heard from Richard Cleland, Assistant Director, Advertising Practices, for the Federal Trade Commission (FTC)’s Bureau of Consumer Protection. He informed attendees that the FTC’s priorities often come from the headlines, citing COVID-19 as the first example of current events informing enforcement priorities. A mere three days after these remarks, the FTC and the Food and Drug Administration (FDA) issued seven – yes, seven – joint letters to a variety of companies that are taking advantage of fears surrounding the pandemic and making advertising claims related to the coronavirus. The agencies invoked Joey from Full House, warning the companies (and others making similar claims) to cut it out.
As the letters state, there “currently are no vaccines, pills, potions, lotions, lozenges or other prescription or over-the-counter products to treat or cure” COVID-19, so any advertising claims touting such benefits “are not supported by competent and reliable scientific evidence,” which is the standard for substantiating health claims under the FTC Act. For its part, the FDA also considers the products at issue as “unapproved new drugs” and “misbranded drugs” in violation of the Federal Food, Drug, and Cosmetic Act. The products range from essential oils to colloidal silver products to frankincense to a “Coronavirus Protocol” of teas and tinctures. The agencies allege the recipients of the letters are making unsubstantiated efficacy claims tantamount to a public health threat, and warn that the agencies are “prepared to take enforcement actions against companies that continue to market this type of scam.”
Takeaways: The FTC and FDA always track and warn about companies that seek to capitalize on public health issues, such as the recent warning letters about the alleged benefits of CBD products and cognitive benefit claims, and those about the H1N1 virus from 2009. Companies would do well to remember that unsubstantiated health claims can pose a serious threat to public health and are a key enforcement priority for the FDA and FTC. To that end, ensure there is competent and reliable scientific evidence to support all health claims. Even with support, it is very easy to cross the line with a claim such as “supports immunity,” rather than “supports healthy immune function.”
While the first wave of letters focused on companies specifically promising cures for or prevention of the coronavirus, the FTC, and likely state agencies and the National Advertising Division, will be monitoring for more general claims like “keeping your family healthy” that, in context, could imply a cure or prevention claim, particularly during a public health scare when consumer audiences are more desperate and vulnerable. If your products can prevent germ-spreading or even kill certain germs, take a hard look at the copy to make sure the proven claims are appropriately qualified and limited to match the substantiation you have. Also scrutinize any new ad copy to make sure it promises only what you intend to promise and what you can support. We expect there will be increased interest in and regulatory focus on Made in USA claims as well, as consumers may seek to avoid products from China, Italy and other countries that are hardest hit by COVID-19.