The FTC recently sent another round of warning letters to ten sellers related to advertising claims that their products treat or prevent COVID-19. Consistent with prior warning letters jointly issued by the FDA and FTC, the FTC’s letters allege that the sellers are falsely claiming that the products are proven to prevent or treat coronavirus when, in fact, there is no competent and reliable scientific evidence that is currently known to exist for products that prevent or treat COVID-19.

The products named in the warning letters include:

The letters require the sellers to immediately cease making claims that the products can treat or cure COVID-19 and to respond within 48 hours explaining the actions the sellers have taken to address the FTC’s concerns. Further, the FTC press release noted that a failure to comply may result in an action for an injunction or refund of money to consumers. These letters, along with other letters jointly issued with the FDA, signal the importance and urgency with which regulators are viewing these pandemic-related marketing practices.

Key Takeaways:

  • The FTC and FDA are actively monitoring COVID-19-related advertising.
  • Marketers should ensure that they have competent and reliable scientific evidence to support any COVID-19-related advertising and labeling claims about their products before such claims are made. Practically speaking, marshalling such evidence is very difficult at this time as much remains unknown about the virus responsible for COVID-19 and effective treatments for the disease.
  • While the latest warning letters do not address the Federal Food, Drug, & Cosmetic Act considerations, advertising that a product can prevent, mitigate, cure, or treat COVID-19 may result in the product being qualified as an unapproved new drug sold in violation of the FDCA.
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Photo of Mark S. Goodrich Mark S. Goodrich

Mark Goodrich provides guidance on a variety of advertising compliance matters and helps brands navigate complex state, federal and local advertising, promotion and consumer protection laws. Mark’s experience includes counseling related to claim substantiation, endorsements and testimonials, deceptive pricing, discount or coupon offers…

Mark Goodrich provides guidance on a variety of advertising compliance matters and helps brands navigate complex state, federal and local advertising, promotion and consumer protection laws. Mark’s experience includes counseling related to claim substantiation, endorsements and testimonials, deceptive pricing, discount or coupon offers, negative option or “automatic renewal” of subscriptions, cause marketing, online disclosures, intellectual property rights, free offers, native advertising, and other Federal Trade Commission (FTC) rules and guidelines. He also frequently drafts rules for contests, sweepstakes and related games, and provides counsel on how to structure promotions to comply with state and federal laws.

Photo of Jason Howell Jason Howell

Jason Howell serves as co-chair of the Advertising, Marketing & Promotions practice and as a member of the Trademark, Copyright & Media practice.