The Oregon Department of Justice (OR DOJ) has temporarily adopted a rule declaring it “unfair and deceptive” (and thus unlawful) to represent that any product “will prevent, treat, diagnose, mitigate, or cure coronavirus, COVID-19 or a related condition, without first having competent and reliable scientific evidence upon which to base a reasonable belief in the truth of the representation.” The temporary rule is effective for six months, until October 14, 2020.
As reported in an AHPA Update on April 15, AHPA has been working with other trade organizations to seek withdrawal of a much-broader proposed rule that the OR DOJ published for comment late last year and in amended form in March 2020. That rule would apply similar substantiation requirements to any “health benefit” claim. The original proposed rule would have created a redundant regulation, contained ambiguous language open to costly interpretation, and opened the door to enforcement by private plaintiffs. AHPA has been informed that the prior proposed rule has now been withdrawn, at least temporarily, though no formal announcement of its withdrawal has been posted by the OR DOJ.
“AHPA applauds Attorney General Rosenblum’s attention on protecting Oregon consumers from unsubstantiated claims that any product is effective against COVID-19,” stated AHPA president Michael McGuffin. “Any such claim is also illegal under federal law and we have previously expressed our support for active enforcement by the Food and Drug Administration and the Federal Trade Commission against such unlawful claims.”
In issuing this temporary rule the OR DOJ cites three examples of retailers currently selling products claiming to treat COVID-19, including a CBD retailer selling “COVID Lung Support Immunity Tinctures,” a chiropractor misrepresenting a supplement product to prevent, cure, or mitigate the effects of COVID-19, and an online retailer advertising silk socks that provide “protection against COVID.”
Rule text
It is unfair and deceptive for an advertiser or seller to represent that a good that is or may be obtained primarily for personal, family or household purposes will prevent, treat, diagnose, mitigate, or cure coronavirus, COVID-19 or a related condition, without first having competent and reliable scientific evidence upon which to base a reasonable belief in the truth of the representation. It is the intent of the rule that in construing the meaning of the term “competent and reliable scientific evidence,” the courts may be guided by decisions of federal courts and final orders of the Federal Trade Commission. It is also presumed that any specific good with approval or emergency use authorization by the United States Food and Drug Administration has competent and reliable scientific evidence upon which to base a reasonable belief in the truth of the representation.