Advertising Law Blog

In a press release, FTC Chairman Joe Simons noted that due to the high level of anxiety surrounding the spread of coronavirus, these warning letters “are just the first step” in the FTC’s efforts to curb such allegedly deceptive marketing. Chairman Simons went on to state that the FTC is “prepared to take enforcement actions against companies that continue to market this type of scam.”

The FDA and FTC have directed these warning letters to companies selling a range of products, including tea, essentials oils, colloidal silver and nasal spray. On March 31, 2020, the agencies took aim at a Neuro XPF, a company selling CBD products “intended to mitigate, prevent, treat, diagnose, or cure COVID-19 in people.” The FDA and FTC cite Neuro XPF’s claim that “while scientists around the world are working 24/7 to develop a COVID-19 vaccine, it will take many more months of testing before it’s approved and available. However… CBD can help keep your immune system at the stop [sic] of its game.”

The agencies’ position appears to be quite aggressive, given that the challenged claims appear to be truthful and in many respects consistent with structure function claims.  It signals that regulators will be focused on claims that could be viewed as trying to profiteer off the virus.

Takeaway: Companies intending to claim that their products offer consumers a health benefit related to coronavirus are cautioned that U.S. regulators are keenly observing and critiquing such claims. Further, the regulators have made it clear that they are willing to pursue enforcement actions if they deem such action necessary.