First FTC case filed under new COVID-19 Consumer Protection Act

Congress passed a law in December 2020 – the COVID-19 Consumer Protection Act – that imposes monetary penalties on violators. The Department of Justice and the FTC just brought their first action under the statute, alleging 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.

You’ll want to review the provisions of the statute (it’s in the Consolidated Appropriations Act under Division FF, Title XIV – COVID-19 Consumer Protection Act), but it boils down to this. For the duration of the coronavirus public health crisis, it’s a violation of the new law 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,” meaning that violations can result in financial penalties. (Of course, the FTC Act’s prohibition on unfair and deceptive acts or practices remains unchanged.)

St. Louis-based Eric A. Nepute and his company, Quickwork LLC, promote 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 via Facebook, that Wellness Warrior products containing vitamin D will treat or prevent COVID-19 and that those representations are scientifically proven. For example, Nepute’s 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. 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.

The FTC’s concerns shouldn’t come as a surprise to the defendants. 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 complaint charges that the defendants violated the FTC Act by making deceptive claims that vitamin D and zinc, including their Wellness Warrior products, can treat or prevent COVID-19. In addition, the defendants allegedly violated the COVID-19 Consumer Protection Act through deceptive representations that vitamin D and zinc “are effective for the treatment, cure, prevention, or mitigation of COVID-19.” The complaint also challenges the defendants’ claims that vitamin D and zinc provide equal or better protection against COVID-19 than currently available vaccines. According to the lawsuit, the defendants violated both the FTC Act and the COVID-19 Consumer Protection Act by making false scientific proof claims for vitamin D and zinc.

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

The filing of the complaint demonstrates the seriousness with which the FTC will respond to allegedly false or unsubstantiated COVID-19 claims. For companies that have received one of the 350+ warning letters the FTC staff has sent, it’s a reminder that we continue to monitor the marketplace closely.