Antitrust Law Daily FTC files first suit under COVID-19 Consumer Protection Act
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Friday, April 16, 2021

FTC files first suit under COVID-19 Consumer Protection Act

By Nicole D. Prysby, J.D.

The FTC alleged that a chiropractor and his business deceptively marketed vitamin D and zinc supplements as drugs capable of treating or preventing COVID-19, in violation of the COVID-19 Consumer Protection Act and the FTC Act.

The FTC announced that it has brought the first action under the COVID-19 Consumer Protection Act with claims against a chiropractor and his business, over deceptive marketing of vitamin D and zinc supplements as drugs capable of treating or preventing COVID-19. The complaint also alleges violations of the FTC Act. The defendants do business under the trade name Wellness Warrior and maintain the Facebook pages WellnessWarrior.club and Common Sense Health Nation. They market their vitamin D and zinc products with statements such as "Vitamin D blocks the virus. That’s a fact. Nobody can argue that." They also claimed that their products are more effective than the available COVID-19 vaccines. The complaint seeks preliminary and permanent injunctive relief, civil penalties, and other remedies (U.S. v. Quickwork LLC, Civil Action No. 4:21-cv-00437, FTC File No. 202 3188).

The COVID-19 Consumer Protection Act (enacted in December 2020) makes it unlawful, for the duration of the COVID-19 public health emergency, to engage in a deceptive act or practice in or affecting commerce in violation of Section 5(a) of the FTC Act that is associated with the treatment, cure, prevention, mitigation, or diagnosis of COVID-19. The FTC also charged the chiropractor and his company, Quickwork LLC, with violating the FTC Act.

According to the complaint filed in the U.S. District Court for the Eastern District of Missouri, the defendants advertised their vitamin D and zinc products—including Wellness Warrior Vita D, Wellness Warrior Zinc, Wellness Warrior Immune Pack, Wellness Warrior Boost Pack, and Wellness Warrior Kids’ Multivitamin—on social media and on multiple websites as drugs capable of treating or preventing COVID-19. The defendants even claimed that their products are more effective than the available COVID-19 vaccines. For example, the defendants claimed that Vitamin D can effectively serve as a "treatment for COVID-19" by "boosting" the immune system and that "Vitamin D3 is the only chemical that’s out there and that’s shown to reduce the spread . . . to minimize the chances of getting infected" and "Vitamin D blocks the virus. That’s a fact. Nobody can argue that." There are no randomized clinical trials that establish increased vitamin D supplementation cause positive health outcomes in connection with COVID-19. The defendants also made misrepresentations that vitamin D supposedly helps prevent or treat COVID-19 through preventing "cytokine storms" in COVID-19 patients. The defendants made similar claims about their zinc product, including that zinc is an effective treatment for COVID-19 because it "doesn’t allow the virus to continue to proliferate" inside the body and that it "stops viral proliferation."

According to the defendants, "the NIH, the World Health Organization, the CDC . . . [have] clearly said this vaccine is not going to stop the spread of infection." However, the National Institutes of Health, the World Health Organization, and the Federal Centers for Disease Control have never stated, much less proven, that vaccines do not stop the spread of COVID-19.

The complaint seeks preliminary and permanent injunctive relief, civil penalties, and other remedies. In a memorandum in support of a motion for preliminary injunction requiring the defendants to cease deceptive marketing, the government argued that the defendants’ deceptive marketing poses a significant risk to consumers, who may believe the claims and take their supplements instead of being vaccinated, social distancing, wearing masks, and taking other precautions recommended by public health experts to avoid contracting COVID-19.

According to the memo, the defendants’ advertising videos have generated large audiences, and online comments to those videos indicate that consumers have been receptive to their marketing claims. Despite warnings from the FTC, the defendants continue to make their deceptive claims. The government asserted that it is likely to succeed on the merits of the claims because there is no competent or reliable scientific evidence supporting the defendants’ claims that vitamin D or zinc can prevent or treat COVID-19. The claims made by the defendants are material and likely to mislead consumers, and the public interest favors an injunction.

The Commission vote to refer the civil penalty complaint to the U.S. Department of Justice for filing was 3-1, with Commissioner Christine S. Wilson voting no.

This case is No. 4:21-cv-00437.

Attorneys: Benjamin Asher Cornfeld, U.S. Department of Justice, for the U.S. Cara M. Swindlehurst (Wilson Elser Moskowitz Edelman & Dicker) for Eric Anthony Nepute. Cara M. Swindlehurst (Wilson Elser Moskowitz Edelman & Dicker) for Quickwork LLC.

Companies: Quickwork LLC

MainStory: TopStory ConsumerProtection FederalTradeCommissionNews Covid19

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