The Federal Trade Commission sued Quickwork LLC and its owner with violating the COVID-19 Consumer Protection Act and the FTC Act, alleging that they falsely marketed products with vitamin D and zinc as scientifically proven to treat or prevent COVID-19.  This is the first case that the FTC has brought under the COVID-19 Consumer Protection Act.

The new law, which was enacted in December 2020, prohibits deceptive acts or practices, during the COVID-19 public health crisis, that are associated with the "treatment, cure, prevention, mitigation, or diagnosis of COVID-19" or a "government benefit related to COVID-19."  Significantly, unlike for most violations of the FTC Act, when enforcing the COVID-19 Consumer Protection Act, the FTC can seek civil penalties.

In its lawsuit, the FTC alleged that Quickwork falsely marketed its vitamin D and zinc "Wellness Warrior" products as being as as effective, or more effective, than the COVID-19 vaccines that are available.  The FTC alleged that the company made claims such as:

• "Vitamin D3 is the only chemical that's out there and that's shown to reduce the spread . . . to minimize the chances of getting infected";
• "There hasn't been one damn thing else ethat's shown the benefits of . . . preventing COVID-19 except for vitamin D3";
• "Vitamin D blocks the virus"; 
• "Vaccines do not stop the spread of the virus"; 
• Vitamin D and zin "actually works better than . . . any vaccine," and
• Zinc is an effective treatment for COVID-19 because it "doesn't allow the virus to continue to proliferate" inside the body.

In announcing the lawsuit, Acting FTC Chairwoman Rebecca Kelly Slaughter said, "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.  With this case, the Commission has quickly put to use its new authority to stop false marketing claims related to the pandemic."

Even though this lawsuit has just begun, here are few takeaways.  First, although we're more than a year into the pandemic, the FTC continues to focus on enforcement related to false and misleading COVID-19 claims.  While this certainly serves as a warning to the fraudulent marketers out there, it's also an important reminder for all marketers to exercise care when making claims about how their products can protect consumers during this time.  Do you have competent and reliable scientific evidence for the claims that you are making?  Second, there's been lots of talk at the FTC over the last few years about whether the FTC's advertising enforcement program is effective enough and whether the FTC needs to be more aggressive when it believes that marketers have violated the law.  The fact that the FTC is using its new authority to seek civil penalties under the COVID-19 Consumer Protect Act is yet another sign that a tougher FTC, stricter orders, and bigger damages are on the way.  (Relatedly, in a sign that the control of the Commission has changed, note that Commissioner Christine S. Wilson voted against bringing this action.)  Third, the FTC didn't bring this case out of the blue.  In the middle of last year, the FTC sent the company's owner a warning letter, advising him to stop making unsubstantiated COVID-19 claims.  After determining that he hadn't complied with the FTC's demand, the FTC brought this action.  Don't assume that the FTC just sends out these warning letters and then forgets about them.  If you do, you may get your shot in court.