In recent weeks the U.S. Food and Drug Administration and the Federal Trade Commission have teamed up to prevent companies from advertising and selling products that claim to treat COVID-19. The agencies have specifically targeted companies selling cannabidiol (CBD) products such as Nova Botanix LTD, CBD Online Store, Indigo Naturals, and Native Roots Hemp. Most of these companies have a couple key things in common: (1) they sell CBD products online; and (2) they use their websites or social media platforms allegedly to claim their CBD products are intended to mitigate, prevent, treat, diagnose, or cure COVID-19. Based on these two commonalities, the agencies issued warning letters alleging that the CBD products are unapproved new drugs, misbranded, and not being advertised based on reliable scientific evidence, all of which violates the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 352 355(a), and the Federal Trade Commission Act, 5 U.S.C. 41 et seq.
The agencies are giving these companies 48 hours to correct the alleged violations and email the agencies’ COVID-19 Taskforce the specific steps the companies have taken to correct those alleged violations. The agencies warn that failure to correct the violations could result in legal action, such as seizures and injunctions.
We have previously reported on similar agency action taken against companies selling CBD products in the past. While these types of warning letters are not necessarily new for companies selling CBD products, they are new in the COVID-19 context. Given the scale of the pandemic and government efforts to protect consumers, we have seen government agencies, such as the United States Department of Justice, take aggressive action for unsubstantiated health claims. For example, DOJ recently charged a physician in San Diego, California for advertising miracle COVID-19 cure kits (note that the kits contained drugs such as Xanax and Viagra, not CBD). Given the climate, it is reasonable to expect that the FDA and FTC may take more aggressive action than they otherwise would in a non-COVID-19 situation.
We have assembled a COVID-19 Task Force of Troutman Sanders and Pepper Hamilton attorneys who are available to help companies navigate this evolving public health crisis. They represent diverse practice areas and industries, across multiple geographies. If you have any questions, don’t hesitate to contact us.