Photo of Sheila MillarPhoto of Tracy Marshall

The COVID-19 pandemic has prompted regulatory agencies to take swift action against companies that falsely advertise their products as treatments for the virus. As we previously reported, the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) issued joint warning letters to seven companies in March for advertising and selling products or services that the agencies allegedly falsely claimed to lessen or prevent COVID-19, in violation of Section 5 of the FTC Act and the Food, Drug, and Cosmetic Act (FD&C Act). That action was followed by a second set of similar warning letters from the FTC to another ten businesses on April 24, 2020 and a third set of warning letters to another 45 companies on May 7, 2020. The letters have been sent to a wide spectrum of businesses making unsupported claims related to COVID-19 therapies or treatments, including manufacturers of air purifiers/sanitizers and water filters, ozone therapy marketers, chiropractors, supplement manufacturers, and businesses offering stay-at-home work opportunities.

The FTC targeted three manufacturers of air purifiers and water filters, EcoShield LLC, John Ellis Water, and Vaniman Manufacturing Co., that the Commission asserted made COVID-19 protection claims not based in science. EcoShield claimed its wearable device “releases chlorine dioxide which is known to protect and disinfect against diseases such as influenza, common colds, bronchitis, tuberculosis, and respiratory infections.” Its Facebook ads proclaimed in capital letters that the device was “more effective than a mask” and included hashtags such as #coronavirus #flu #covid19 #covid #WuhanPneumonia #WuhanCoronavirus #coronavirusoutbreak to direct consumers to Ecoshield’s social media accounts. John Ellis Water claimed its water filter “removes viruses, toxins, pathogens, and bacteria from your bloodstream” with “UV vapors” that “kill(s) viruses on contact.” Vaniman Manufacturing advertised that its air purifier “can greatly help to reduce the spread AND capture the COVID virus in your home or workplace.”

In each case, the FTC reminded the companies that

…it is unlawful under the FTC Act, 15 U.S.C. § 41 et seq., 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 that the claims are true at the time they are made. For COVID-19, no such study is currently known to exist for the product identified above.

The FTC also brought its first court case against a business for making false COVID-19 health claims. In its complaint against Marc Ching, individually and doing business as herbal supplement company Whole Leaf Organics, the FTC asserts that the company’s Thrive herbal supplement was advertised as able to treat, prevent, or reduce the risk of COVID-19. Ads for the Thrive supplement claimed that it is an “antiviral wellness booster” and “the perfect way to strengthen your immune system against pathogens like COVID-19, the Coronavirus.” Thrive’s marketing copy also claimed that the supplement is “safe for daily short-term use to combat ailments like the flu, colds, bronchial infections, fungal and yeast-based issues, as well as the coronavirus.” As the FTC pointed out, however, “there is no competent and reliable scientific evidence that Thrive or any of its ingredients treats, prevents or reduces the risk of COVID-19.”

Because of the urgency of removing fake COVID-19 “cures” from the market, the FTC took the unusual step of asking the United States District Court for the Central District of California for a temporary restraining order and preliminary injunction to prevent interim harm to consumers while it concurrently filed an administrative complaint. The FTC had cause to be concerned that Ching would continue selling his products barring an injunction to stop sale because it was not the first time the government warned him against making unsupported health claims. In November 2019, the FDA sent the company a warning letter for making unapproved new human and animal drug claims for cannabidiol (CBD) products, including cancer-curing claims, contrary to the FD&C Act. The FTC’s complaint also included a count alleging false cancer claims, in addition to the false COVID claims, and false proof claims based on the company’s statements that the products were scientifically or clinically proven.

At a time when consumers are especially anxious about their health and well-being due to the coronavirus, they can be even more vulnerable to false promises about cures and protection. When a business makes unsupported claims that could adversely affect public health and safety in the short term, the government has a strong incentive to act swiftly and forcefully. As the pandemic continues, the vigorous crackdown by federal agencies on companies purporting to sell treatments for the coronavirus is very likely to continue as well. That should be reassuring to businesses that carefully vet claims to assure they are grounded in both facts and applicable regulatory regimes.