FTC Files First Case Under New COVID-19 Consumer Protection Act

Advertising Law

The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have filed the first case under the COVID-19 Consumer Protection Act, a law passed by Congress in December 2020 that imposes financial penalties on violators. The action alleged that a Missouri chiropractor and his company violated both the new law and the FTC Act by deceptively marketing vitamin D and zinc products to treat or prevent COVID-19.

For the duration of the coronavirus public health crisis, the new law makes it unlawful under Section 5 of the FTC Act to engage in a deceptive act or practice that is associated with “the treatment, cure, prevention, mitigation, or diagnosis of COVID-19” or “a government benefit related to COVID-19.” Congress mandated that a violation of the law “shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act,” which means that violations can result in monetary penalties.

Eric A. Nepute and his company, Quickwork LLC, based in St. Louis, promoted vitamin D and zinc products under the Wellness Warrior brand. The complaint quotes excerpts from the defendants’ ads, marketing emails and videos, including claims conveyed on social media, that Wellness Warrior products containing vitamin D will treat or prevent COVID-19 and that those representations are scientifically proven. For example, the videos claimed that “COVID-19 Patients who get enough Vitamin D are 52% less likely to die” and that people who get enough vitamin D3 “have a 77 percent less chance of getting infected in the first place.”

According to the complaint, the defendants’ marketing materials similarly claimed that Wellness Warrior zinc products treat or prevent COVID-19 and are scientifically proven to work. For example, according to the complaint, the defendants claimed that zinc is an effective treatment for COVID-19 because it “doesn’t allow the virus to continue to proliferate” inside the body and that it “stops the cells from regenerating viruses,” which in turn “stops viral proliferation.”

In addition, the complaint alleges that the defendants falsely claimed that their products provide equal or better protection against COVID-19 than currently available COVID-19 vaccines.

Besides monetary penalties, the complaint seeks to prohibit the defendants from making health claims unless they are true and supported by competent and reliable scientific evidence. The complaint also seeks a court-enforceable prohibition on the defendants’ falsely claiming to have scientific proof about the effects of vitamin D and zinc on COVID-19.

In May 2020, FTC staff sent Nepute a letter warning that his COVID-19 efficacy claims for another product were unsubstantiated. The warning letter advised him to review claims for all of his products and to stop making representations not supported by competent and reliable scientific evidence. According to the complaint, despite the warning letter, the defendants “have ramped up their unsubstantiated claims regarding Vitamin D and zinc.”

“The defendants’ claims that their products can stand in for approved COVID-19 vaccines are particularly troubling: we need to be doing everything we can to stop bogus health claims that endanger consumers,” said Acting FTC Chairwoman Rebecca Kelly Slaughter. “With this case, the Commission has quickly put to use its new authority to stop false marketing claims related to the pandemic.”

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