As of publication, the FTC has sent 26 warning letters jointly with the FDA and 10 additional warning letters on its own to companies in the United States and abroad who are promoting and selling unapproved and misbranded products seeking to capitalize on the coronavirus epidemic. In particular, the FTC and FDA have jointly gone after companies selling products including tea, cannabidiol (CBD), essential oils, homeopathic medications, colloidal silver, and traditional Chinese medicine, while the FTC’s independent letters have targeted products such as IV-drip solutions, Vitamin C-dosing, face-cleansing brushes, air purifiers, immunity boosters, and sound-frequency therapies.

To summarize the FTC’s message across its letters:

• The FTC has “a magnifying glass on the marketplace” to monitor coronavirus claims and will actively and aggressively pursue any and all unsupported claims.
• It is unlawful under the FTC Act to advertise that a product can prevent, treat, or cure human disease unless you possess competent and reliable scientific evidence, including, when appropriate, well-controlled human clinical studies, substantiating the truth of those claims at the time they are made.
• For COVID-19, no such studies are currently known to exist. Thus, any coronavirus-related prevention, cure, or treatment claims are, by definition, not supported by the required competent and reliable scientific evidence.
• The FTC will continue to monitor the recipients of its warning letters on social media, online marketplaces, and in incoming complaints to ensure recipients do not continue to market fraudulent products under a different name or on another website.
• If the false claims do not cease, the FTC may seek a federal court injunction or an order requiring money to be refunded to consumers.
• Recipients must notify the FTC within 48 hours about the specific actions the companies have taken to address the agency’s concerns.

FTC Chairman Joe Simons has indicated that these warning letters are merely the first step against violators of the FTC Act. The full list of COVID-19 related warning letters can be found here.

FTC Chairman Simons also issued a statement outlining the Commission’s compliance approach during the COVID-19 pandemic. Simons indicated that while Commission will remain flexible and reasonable in its enforcement strategy, the FTC will not “tolerate companies deceiving consumers, using tactics that violate well-established consumer protections, or taking unfair advantage of these uniquely challenging times.”

Key Takeaways

The message from the FTC (and FDA) is clear. Given their “exacting” and heightened scrutiny of the marketplace, companies making any type of representations about their products and COVID-19 must exercise considerable care in the substance of those claims or risk the consequences. Companies must ensure that they have, on hand, competent and reliable scientific evidence to substantiate all labelling and advertising for their products, including posts on social media, before they enter the marketplace. What might have qualified as “puffery” in the past is likely to be viewed in a far less permissive light during the current health crisis.

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