On Thursday April 15th, the U.S. Department of Justice, on behalf of the Federal Trade Commission (“FTC”) filed a lawsuit in the U.S. District Court for the Eastern District of Missouri against chiropractor Eric A. Nepute and his company Quickwork LLC (the “Defendants”) for violating the new COVID-19 Consumer Protection Act. In the complaint, the FTC charges Nepute and Quickwork LLC with making unsubstantiated claims about products sold under the “Wellness Warrior” brand regarding their ability to treat and prevent COVID-19. The FTC is seeking both monetary penalties against the Defendants, as well as a permanent injunction to prevent future violations of the FTC Act and the COVID-19 Consumer Protection Act by the Defendants.
Passed by Congress in December 2020, the COVID-19 Consumer Protection Act (“the Act”) serves to deter and prohibit businesses from marketing products based on unsubstantiated scientific claims for the duration of the COVID-19 crisis. Specifically, the Act prohibits deceptive acts or practices pertaining to “the treatment, cure, prevention, mitigation, or diagnosis of COVID-19” or “a government benefit related to COVID–19.” Congress included in the statute that any violation of this 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,” allowing for violators to receive financial penalties.
The Defendants promoted vitamin D and zinc products as part of their “Wellness Warrior” brand. They claimed–through multiple mediums of advertisement including emails, videos, and claims conveyed via Facebook–that their vitamin D products were scientifically proven to treat or prevent COVID-19. Some videos stated explicitly 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.” The Defendants made similar claims about their zinc products. More importantly, the Defendants also claimed that their products provided equal or better protection against COVID than the available vaccines.
The FTC issued a warning letter to Defendants about COVID-19 efficacy claims back in May 2020, but alleges that, since then, Defendants have “ramped up their unsubstantiated claims regarding Vitamin D and zinc.” Given the critical effort to roll out the various vaccines and maintain public trust regarding their effectiveness, it is unsurprising that the FTC has pursued this lawsuit.
The Lawsuit claims that Defendants violated both the FTC Act and the COVID-19 Consumer Protection act by making false claims regarding the ability of Defendants' products ability to treat, cure, prevent, or mitigate COVID-19, both on their own and compared to available vaccines. The complaint seeks to prohibit further claims and to obtain monetary penalties Specifically the complaint states, “A violation of Section (b)(1) of the COVID-19 Consumer Protection Act made with the knowledge required by Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. § 45(m)(1)(A), is subject to monetary civil penalties of not more than $43,792 for each violation of the COVID-19 Consumer Protection Act after January 13, 2021, including penalties whose associated violation predated January 13, 2021.”
By bringing this action, the FTC has made it clear that it takes these type of COVID-19 claims very seriously and that it will respond accordingly, partnering with the Justice Department as appropriate. To date, the FTC has sent over 350 warning letters to other companies regarding their conduct related to unsubstantiated COVID-19 claims, and there is a strong reason to believe the FTC will continue to pursue these claims as they arise.
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