FDA and FTC Warn CBD Company Over Fraudulent COVID-19 Products

Advertising Law

The federal Food and Drug Administration (FDA) recently established a cross-agency task force that is dedicated to closely monitoring for fraudulent products related to COVID-19. As part of the efforts of the COVID-19 Task Force, the FDA and the Federal Trade Commission (FTC) have begun jointly sending warning letters to companies that the Task Force believes have been improperly advertising that their dietary supplements and CBD products may help protect against or fight COVID-19. Companies selling CBD products, which are already under close scrutiny by the FDA, have begun to be targeted.

For example, on March 31, 2020, the FDA sent a warning letter to Las Vegas-based NeuroXPF, relating to the company’s advertising for its CBD products. The FDA and FTC took issue with claims that NeuroXPF’s CBD products could “Crush Corona” by helping to strengthen the immune system. Among other statements, online advertisements for the company’s CBD products included this one: “We want everyone to take CBD and take advantage of its potential to help prepare your body to fight a coronavirus infection.”

In their warnings to NeuroXPF and other companies that have made claims that their products might help consumers fight COVID-19, the FDA and FTC noted that such claims—that the products can be used to mitigate, treat or prevent disease—make the products unapproved “new drugs” sold in violation of Section 505(a) of the Federal Food, Drug, and Cosmetic Act (FD&C Act), 21 U.S.C. § 355(a), as well as “misbranded” drugs under Section 502 of the FD&C Act, 21 U.S.C. § 352, because the companies had not provided to the FDA any support for these claims. The FDA and FTC therefore concluded that the sale of the products was prohibited under the FD&C Act.

Read the warning letter to NeuroXPF here.

Why it matters

The global pandemic has created both opportunities and pitfalls for companies that sell products that may help in the fight against COVID-19. Companies need to be aware that various federal agencies are paying very close attention to how companies may be attempting to capitalize on consumers’ desire to avoid contracting and bolster their ability to fight the virus, and should take care to avoid making any claims that their products could potentially be used to mitigate, prevent, treat, diagnose or cure COVID-19 in humans.

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