Last week, the Department of Justice (“DOJ”) together with the Federal Trade Commission (“FTC”) announced a new civil lawsuit filed against St. Louis-based chiropractor Eric Anthony Nepute and his company, Quickwork LLC, alleging that they deceptively marketed products containing vitamin D and zinc as scientifically proven to treat or prevent COVID-19. This is the first enforcement action alleging violations of the COVID-19 Consumer Protection Act.

The COVID-19 Consumer Protection Act, passed by Congress in December 2020, prohibits deceptive acts or practices associated with the treatment, cure, prevention, mitigation or diagnosis of COVID-19. Those in violation of the new law may be subject to civil penalties, injunctive relief, and other remedies available under the FTC Act.

According to the complaint, the defendants marketed their “Wellness Warrior” vitamin D and zinc products as being just as effective as, or more effective than, the COVID-19 vaccines currently available. For example, the defendants falsely touted that their products “will prevent [COVID-19] from infecting your body”, “a ‘high dose’ of Vitamin D would help to turn COVID-19 into a ‘mild illness’”, and vitamin D and zinc “actually works better than . . . any vaccine” and, therefore, customers did not “really need a vaccine.”

In May 2020, the FTC sent a warning letter to the Nepute, warning him about unsubstantiated COVID-19 efficacy claims that he was making for other products. Despite the FTC’s warning, Nepute continued marketing his products, including the Wellness Warrior vitamin D and zinc products, as proven immunity boosters that effectively treat or prevent COVID-19, while regularly dismissing public health guidance and promoting the products as equal or better protection against COVID-19 than currently available vaccines.

The complaint asks the court to exercise a provision of the new law to impose monetary penalties and to grant a preliminary injunction to stop the defendants from continuing to make the allegedly deceptive advertising claims.

Takeaway: With the FTC’s new authority under the COVID-19 Consumer Protection Act, this lawsuit signals that the Commission will take a much more aggressive stance in policing the proliferation of consumer scams and frauds by companies touting fake drugs and treatments for COVID-19. For marketers that fail to comply with FTC warning letters, they may find themselves subject to similar suits and could face potentially significant civil penalties.