FTC Cracks Down on COVID Promises Under New Law
Everyone is looking for ways to strengthen natural immunity against COVID-19, relieve the symptoms, or shorten its course. But thanks to vigorous enforcement of a new consumer protection law, you’ll need to be extra careful with claims about new products or treatments.
With new advances in medical technology come new opportunities for doctors to help their patients. However, as with every new opportunity, there are risks of liability. The addition of a global pandemic certainly doesn’t help.
A St. Louis-based chiropractor, for instance, thought he had the cure for COVID-19. He claimed that a regimen of vitamin D and zinc could effectively prevent or treat the infection, even rivaling or exceeding the efficacy of the available vaccines. This claim, with its otherworldly promises, caught the eyes of the federal government. The government wasn’t a believer.
In December 2020, Congress passed the COVID-19 Consumer Protection Act. For the duration of the coronavirus public health crisis, deceptive acts or practices related to “the treatment, cure, prevention, mitigation, or diagnosis of COVID-19” or “a government benefit related to COVID–19” violate the law. The COVID Consumer Protection Act gives the Federal Trade Commission (FTC) the authority to impose significant financial penalties on those who ignore its edict.
Read on to see how even well-intentioned actions can put companies and healthcare professionals at risk of violating the law.
The FTC’s Role During the COVID-19 Pandemic
The FTC is an independent agency that promotes competition and protects consumers. Its role in promoting competition most frequently makes news when it quashes a proposed hospital merger or seeks to reign in an online retail giant’s reach.
However, its consumer protection role operates in more diverse settings. It can extend to almost anything that someone advertises, prints, promises, writes, or says in a way that affects consumers. That includes consumers of healthcare services.
The Federal Trade Commission Act established the FTC. It was signed into law by Woodrow Wilson when the country was increasingly concerned with manufacturing monopolies. Led by five bipartisan Commissioners appointed by the President and confirmed by the Senate, the FTC creates and enforces laws designed to prevent unfair or deceptive commercial practices.
Recently, the FTC has applied its resources towards investigating and responding to issues arising from COVID-19. By now, one thing is clear: the FTC is cracking down on COVID-related schemes, scams, and false promises.
What Are the Standards for Physicians?
This is the best cheeseburger you’ll ever eat. You’ll look great in this car. Our computer will change your life.
Exaggerated promises like these are typical in the business world, where they’re unlikely to get the seller into trouble. In the heavily regulated healthcare sphere, though, things are different. False promises can put healthcare providers at legal risk because they can put patients at risk.
Because of the weight of their words, healthcare providers have a heightened duty of care and must uphold ethical norms. Most practice acts require providers to offer competent care and communicate effectively. When a medical professional exaggerates the efficacy or safety of a given treatment, it’s reasonable to assume that people will experiment with that treatment and may suffer negative consequences. Additionally, those who rely on faulty advice might lose their chance to receive an effective alternative treatment.
Importantly, medical treatments and tests must satisfy established medical standards. The AMA’s website, for example, provides both its code of ethics and ethics-related resources for physicians. Although medicine is as much art as science, when a court or government agency determines whether misconduct has occurred, they lean into whatever objective standards are available. In other words, the veracity of a doctor’s belief in his treatment is not relevant when determining its legality.
How Do You Know if a Statement Violates the COVID Consumer Protection Act?
A provider can violate the COVID Consumer Protection Act if they make a material statement or omission that would likely mislead a reasonable patient. In other words, providers cannot make exaggerated or false promises—promises that lack support from credible scientific evidence.
Extreme violations are easy to spot. For instance, imagine a physician who markets a lemon juice and orange smoothie as a surefire way to prevent COVID-19. The provider tells patients that drinking a smoothie each night will prevent infection. No reliable scientific evidence substantiates these claims, so the promise is false. Because laypersons must be able to rely on doctors for sound medical advice, this provider likely violated the COVID Consumer Protection Act.
Alternatively, imagine that the provider’s claims were more ambiguous. Instead of promising that the smoothie will prevent infection, the provider claims that it may help boost the immune system, potentially reducing the intensity and duration of a COVID-19 infection. Claims about the specific smoothie are still unsupported by research, and no study has shown that it can prevent COVID.
However, many studies do conclude that vitamins C and A—found in lemons and oranges—support a healthy immune system. There is even some evidence that vitamin C can reduce the duration and intensity of the common cold. The provider, then, argues that the product mitigates the risk of severe COVID by optimizing the immune system.
Even with the second example, the provider needs to tread carefully. Those without medical training rely heavily on medical experts for sound advice. To help avoid legal consequences, the provider should be fully transparent about the lack of studies proving that the treatment prevents or treats COVID, general acceptance by the medical community, support from clinical trials, or guaranteed results. In addition, the provider should mention that medically accepted preventive options—like FDA-authorized vaccines—are widely available. Further, they should emphasize that patients need to consult their own physicians for personalized advice.
Enforcement of the COVID-19 Consumer Protection Act
To date, the FTC has warned almost 400 sellers and marketers to stop making unsubstantiated claims about COVID treatments and preventive measures. Those who do not heed the warning risk penalties of up to $43,792 per violation.
Do you remember the chiropractor at the beginning of this article? This week, he became the first to be charged under the new law. And under the new law, the FTC can seek civil monetary penalties for first-time violations. Such a remedy was not available before the COVID-19 Consumer Protection Act.
To reduce your risk of liability, you need to understand the kinds of language you can use to promote a novel treatment or product for COVID-19. Do you want to bring a new product or treatment to market? The healthcare attorneys at Jackson LLP can help you stay compliant. Book a free consultation to determine if we fit your needs.
The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.