The Food and Drug Administration (FDA) and Federal Trade Commission (FTC) are warning consumers to be wary of products which claim to diagnose, prevent, mitigate, treat or cure the H1N1 virus. Health Canada has since followed suit and released an information update to Canadians on the same topic. Numerous products, ranging from dietary supplements to cleaning agents, are being marketed and sold via illegitimate websites. The fraudulent promises these websites or products make are viewed as an exploitation of public concern over the H1N1 virus, causing government agencies to take swift action.
As a result, legitimate products must be marketed with extreme caution when making health claims or statements regarding the flu or viruses and ensure that these claims could not possibly be interpreted as protection from or treatment of the H1N1 virus. Health Canada has authorized only three products for use against the H1N1 virus: the vaccine Arepanix, and antiviral drugs Tamiflu and Relenza, with the addition of the vaccine Panvax authorized for use in pregnant women.
The FDA and FTC have joined forces and developed an aggressive strategy of identifying individuals and businesses making these fraudulent claims, and are not hesitating to take regulatory or criminal action against offenders. Since May 2009, the FDA has warned more than 75 websites to stop the sale of over 135 products with fraudulent claims related to the H1N1 virus.
As a part of the Consumer Protection Enforcement Network’s Internet sweep, consumer protection agencies worldwide targeted deceptive conduct on the Internet, particularly conduct exploiting crises, natural disasters, or pandemics. This conduct is viewed as a matter of public health and security, calling into question not only the safety and efficacy of advertised products, but in the case of a pandemic such as the H1N1 virus, their potential to create a false sense of security.
It is important to note that beyond the illegitimate websites and products, these principals can be and have been applied to legitimate existing products, ingredients, or informational content that is considered an exploitation of public concern over the H1N1 virus with the goal of selling a product. This can include products making claims or marketed as a means of preventing, treating or curing the flu, whether or not they implicitly tie the products being advertised to the H1N1 virus.
A recent example was the warning letter sent to well-known author and physician Dr. Andrew Weil’s website. On a page titled “The Swine Flu –H1N1: The Swine Flu and You,” the site contained information about natural ingredients which boost the immune system, specifically the ingredient astragalus found in the Weil Immune Support Formula. The questionable web content that the FDA mentions in the letter was not implicitly describing the product’s ability to fight or prevent H1N1. However, due to the possibility it might be interpreted as such by a consumer reading the site, was considered a possible threat to public health and in violation of the Federal Food, Drug and Cosmetic Act.
Dr. Weil has posted a response to this issue on his website, stating that the questionable content on his site was primarily educational and did include the Centres for Disease Control’s official recommendations for the H1N1 flu vaccination. His response further states that he fully supports the FDA/FTC task force.
Be cautious when discussing the H1N1 virus, the flu season, or making immune system-related claims whether it is through informational web content, product marketing, or social media. The implications and costs of being found in violation can be high regardless of your intentions.