The Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”) have been fighting fraudulent and deceptive advertising of health care devices, household cleaners, nutrition supplements, and other health care products promising to protect or mitigate the effects of the virus for pandemic-wary consumers since March 2020. Despite these efforts, false and misleading marketing related to COVID-19 seems to be even more brazen this fall. Last month—on the heels of the first FDA-authorized COVID-19 at home testing kit and FDA’s announcement of its December 10, 2020 FDA Advisory Committee meeting concerning a COVID-19 vaccine candidate—the FDA and FTC began honing in on unapproved products and advertising offering not just virus protection or mitigation, but virus prevention and cures.

To date, the FDA and FTC have issued 135 COVID-19-related warning letters for unapproved drugs sold in violation of section 505(a) of the Federal Food, Drug, and Cosmetic Act (FD&C Act), 21 U.S.C. § 355(a), and for drugs misbranded in violation of section 502 of the FD&C Act, 21 U.S.C. § 352. These warning letters flagged products ranging from salt therapy solutions promising to “strengthen the lungs to fight against the novel Coronavirus” and essential oils that are “clinically proven to possess antiviral properties,” to an “umbilical cord derived cellular product” advertised during a Facebook chat as a “preventative treatment[] that can help boost the immune system and fortify lungs against viruses.”

Discussing the marked rise in mislabeling and fraudulent virus-related products, Jeff Shuren, director of FDA’s Center for Devices and Radiological Health, reminded marketers in a June 17, 2020 press release that “[p]roviding regulatory flexibility during this public health emergency never meant we would allow fraud.”

Perhaps as a result of “pandemic fatigue” triggering consumer demand for quick fixes or motivated by the booming COVID-19 mitigation product market, potentially fraudulent and deceptive virus-related marketing targeting prevention and treatment is even more prevalent this fall.  Just last month, the FTC sent letters warning 20 more marketers nationwide to stop making unsubstantiated claims that their products and therapies—ranging from copper water bottles to personal training, bead bracelets, and water filtration systems—can prevent or treat COVID-19. In September 2020, FDA’s Bad Ad Program issued a warning letter citing a pharmaceutical company for touting its budesonide generic asthma drug as a treatment for symptoms of COVID-19.  Other recent FDA enforcement actions combatted a new wave of at-home COVID-19 devices, including antibody testing kits and rapid results virus testing kits.

Despite the booming market and consumer demand, manufacturers and advertising agencies must remain vigilant and disciplined when incorporating COVID-19 into marketing campaigns.  There are ways to do this without triggering FDA or FTC action.

Takeaway:  Marketers should beware of heightened scrutiny over health care advertising related to COVID-19. Currently, there is no approved vaccine for COVID-19, so claims related to virus protection and mitigation (e.g., flagged claims include that a product is “effective against all types of pathogens, including a wide variety of viruses,” “anti-coronavirus and antimicrobial activity,” and “helps lower[] everything that is virus and inflammation”) must be carefully crafted in a way that achieves commercial goals while mitigating risk of a regulatory enforcement action.  Lastly, no platform or marketing medium is exempt from regulatory scrutiny, as several recent COVID-19 warning letters cited claims made via email accounts and on social media.