When diseases become newsworthy, advertisers may be tempted to profit, claiming that their products can help prevent, treat or cure the disease. Some advertisers did exactly that as the recent COVID-19 pandemic became a regular part of the news cycle.
In January 2020, GOJO Industries, Inc., the makers of hand sanitizer brand Purell, received a warning letter from the Food and Drug Administration (FDA) for claiming that Purell hand sanitizers could prevent or reduce the spread of illnesses such as MRSA, influenza and Ebola. Hand sanitizers like Purell are marketed as over-the-counter (OTC) Drugs and as such, they are limited to the claims in the monograph 21 CFR 310. The FDA warning letter states that GOJO’s disease prevention claims are unapproved new drug claims because there is no scientific evidence that Purell can kill viruses, and the claims do not comply with the tentative final for hand sanitizer. The FDA, unlike the Environmental Protection Agency (EPA), has not released a list of products that are effective against viruses, making such claims difficult to substantiate. Thus, while advertisers may claim that some surface cleaners are effective against specific viruses, such claims are likely unsubstantiated for the vast majority of products.
In a January 24 statement on the GOJO website, the company issued a corporate statement that it was taking steps to update its website and digital content to comply with the FDA’s guidance. Nevertheless, just a few weeks later, a class action complaint was filed in the Southern District of New York alleging that GOJO advertised Purell products as a viable means of preventing the transmission of diseases, including Coronavirus. Gonzalez v. Gojo Industries, Inc., Case 1:20-cv-00888 (S.D.N.Y. Feb. 2, 2020).
Since then, as Coronavirus has spread, regulators have looked more closely at some of the most egregious claims in the marketplace. On March 9, the FTC announced that it sent joint warning letters to seven companies for claiming that they can treat or cure Coronavirus without any support for their claims. The letters make clear that “[t]here currently are no vaccines, pills, potions, lotions, lozenges or other prescription or over-the-counter products available to treat or cure Coronavirus disease 2019 (COVID-19).” See, e.g. Letter to Herbal Amy, Inc. To support such claims, competent and reliable scientific evidence, including well-controlled human clinical studies are required. Id.
And, on March 10, the state of Missouri announced that it filed a lawsuit against the Jim Bakker Show for falsely claiming that the Silver Solution, a product marketed on the show, could treat Coronavirus.
What does this mean? If your product isn’t on the EPA’s list of registered disinfectants for use against COVID-19, don’t make express or implied claims that your product is effective against preventing or curing Coronavirus. Absent competent and reliable scientific evidence:
- Do not make claims linking the ability of a product to kill germs more generally to any specific virus or disease, including Coronavirus.
- Do not imply that a product will prevent any particular disease. For example, do not share in social media a news article about the spread of Coronavirus in combination with a comment suggesting that a product might be helpful to prevent it.
- If there are third party articles that suggest that consumers could use your product to prevent Coronavirus, do not share them in social media and do not post them on your website.