FTC and DOJ use new law to challenge COVID claims for nasal spray

If businesses are making claims to prevent or treat the coronavirus for their products, it’s time to step up to the plate with the COVID-19 Consumer Protection Act. The Justice Department and the FTC just filed their latest action under the law, seeking civil penalties against the marketers of Xlear, a nasal spray that the complaint alleges was deceptively advertised to offer “up to four hours” of protection against COVID-19 and : as “part of layered protection to prevent infection with COVID-19”. Furthermore, this is not the first time Utah-based Xlear, Inc. and company president Nathan Jones have heard from the FTC about their allegedly misleading COVID representations.

Under the Xlear Sinus Care brand, the defendants sell saline nasal sprays that also contain grapefruit seed extract and the sweetener xylitol. The defendants promoted Xlear sprays on Facebook, Instagram, YouTube, podcasts and sponsored television appearances. They also sell them through national and online retailers. According to the complaint, beginning in March 2020, the defendants shifted their marketing focus to promote Xlear as a “simple, safe and inexpensive option that can be an effective solution to the epidemic.” The company cited studies from the University of North Carolina and the University of Tennessee that purportedly support their advertising claims.

The lawsuit alleges that the defendants lack adequate support to support their promises that Xlear will prevent and reduce the severity or duration of a COVID-19 infection. And the claims of the defendants that scientific studies in universities substantiate what they said. The FTC and DOJ say those claims are false.

In the two-count complaint, the FTC and DOJ seek, among other things, redress for consumers, civil penalties and a permanent injunction to prevent future violations of the law. Filing a case sends two important messages to other companies.

When challenging unsubstantiated advertising claims, the FTC will seek remedies authorized by the COVID-19 Consumer Protection Act. Deceptive claims related to COVID are putting consumers’ health at risk and causing significant financial injury. During the public health crisis, the law allows the FTC to seek financial penalties from companies and individuals who engage in deceptive practices related to the “treatment, cure, prevention, mitigation, or diagnosis of COVID-19.”

If the FTC tells you to stop making unsubstantiated claims, stop. In the first year of the COVID crisis, FTC staff contacted hundreds of companies and individuals with serious concerns about the coronavirus prevention or treatment they had provided for their products or services. The conclusion was clear. “You must immediately cease all such claims.” In July 2020, one of those letters was sent to Xlear. According to the FTC, despite promises to revise or remove the illegal claims, the defendants continue to promote their products as a way to prevent or treat COVID-19. If you or your customers receive a cease and desist request from the FTC, stop making unsubstantiated claims.

The case is in federal court in Utah.