Earlier this week, we blogged about the FTC and FDA’s joint warning letters to seven companies that claimed their products could treat or cure coronavirus. However, the regulators aren’t the only ones taking action over deceptive advertising practices related to coronavirus. A group of California consumers filed a class action complaint alleging Vi-Jon Inc. “advertised, marketed, and sold” its Germ-X brand alcohol-based hand sanitizers with claims that they prevent the flu and other viruses, including the coronavirus, when they allegedly do not.
The plaintiffs did a deep-dive into the various ways Germ-X allegedly advertises the hand sanitizers and alleged that the explicit statements on the Germ-X and third-party retailers’ websites, as well as the combination of certain text and images throughout the sites, mislead consumers into believing the products prevent the flu. For example, the complaint alleges that the products are described as being “meant for coronavirus/flu prevention” on third-party retailers’ websites. The complaint also points to various sections of the Germ-X website – such as “Seasonal Illness,” “Schools” and “CDC Resources” – that, due to the combination of text and images, allegedly give the impression that the government recommends Germ-X to prevent the flu and other viruses and that Germ-X can help users avoid getting sick.
In short, the complaint boils down to the following: (i) there is no scientific evidence that the use of alcohol-based hand sanitizers prevents or reduces infection or disease, so any such claim on the part of Germ-X allegedly is unsubstantiated and cannot be substantiated; and (ii) the overall impression the marketing of Germ-X creates allegedly misleads a vulnerable and fearful public into believing the hand sanitizers prevent the flu and other viruses, including the coronavirus, when they allegedly do not.
Takeaways: Tracking regulatory enforcement in your brand’s space can often reveal harbingers of consumer class actions on the horizon. Brands can also benefit from tracking their competitors. Where the products are similar, a warning or lawsuit for one company’s product should act as a warning for its competitors. In this case, the plaintiffs cited to an FDA warning letter sent in January to Purell – a Germ-X competitor whose alcohol-based hand sanitizer allegedly contains a higher percentage of alcohol than Germ-X – to support their contention that the Germ-X hand sanitizer cannot prevent the flu and other viruses. That letter established that, although “merely describing the general intended use of a topical antiseptic” is likely acceptable, it is likely not acceptable – in the FDA’s opinion – to tie the antiseptic quality of the sanitizer to disease prevention or reduction. The Purell letter, the plaintiffs allege, “applies equally to Germ-X.”
And where there is wide-scale public fear, take a close look at your product’s advertising claims and put yourself in the consumer’s shoes. Ask whether the claims could be seen as capitalizing on this fear. Doing so could go a long way toward avoiding not only class actions, but also bad PR. Relatedly, what’s past sometimes really is prologue. Here, the plaintiffs cited to public statements Germ-X allegedly made during the 2009 H1N1 flu pandemic to support their contention that Germ-X, as a brand, is aware of and familiar with consumers’ fear of flu and other viruses and that this fear allegedly “drives massive profits for the company.”
For more information about COVID-19, including updates, travel information and prevention methods, visit the Centers for Disease Control and Prevention website. We have established an online resource center to help address and answer legal questions about Coronavirus (COVID-19). We at AD-ttorneys Law Blog hope all our readers stay safe and sound.