The Federal Trade Commission and Food and Drug Administration recently told seven companies to either stop selling certain products or revise their claims.
In a mass letter to Vital Silver, GuruNanda, LLC, Vivify Holistic Clinic, Herbal Amy LLC, Quinessence Aromatherapy Ltd., Xephyr, LLC doing business as N-Ergetics, and The Jim Baker Show, regulators said these companies had forty-eight hours to revise or withdraw their claims about colloidal silver, a dietary supplement which its makers and sellers claim cures or alleviates coronavirus.
The FDA has repeatedly said that such claims are meritless.
An estimated 150 million Americans use dietary supplements, and up to 23 million of these people use supplements in lieu of medical products.
Of the seven named companies, each one except N-Ergetics revised its claims and kept selling colloidal silver.
Many products make generic performance or quality claims, such as “new” or “improved.”
These claims are almost meaningless. A smartphone with a different color is new, a can of soda with an altered chemical formula is improved, at least in the eyes of some people, and so on.
Most courts dismiss such affirmations as sales puffery. So, if the product fails to live up to these claims, the buyer bears the risk.
Specific claims are different. If a supplement or other product claims to cure coronavirus, cure cancer, grow hair, or do anything else, it must fulfil that expectation.
A disclaimer like “this statement has not been evaluated by the FDA” is usually ineffective.
If a product fails to live up to an express warranty by affirmation, aggrieved buyers usually have three legal options:
- Obtain compensation for economic losses, which is usually the cost of the goods as well as shipping and other fees,
- Cover the loss by obtaining a similar product elsewhere (the original seller is liable for any cost difference), or
- Obtain a specific performance or replevin order.
Specific performance is appropriate if the goods were unique and the problem is addressable.
This order compels the seller to make the product right.
Replevin is a similar action. The buyer takes possession of all the goods, even if the buyer has not paid for them all, if the buyer is unable to cover.
Deceptive claim actions are usually class action lawsuits.
A large number of plaintiffs consolidate their claims into one action. Class actions often result in millions of dollars in damages.
The FTC regulates deceptive claims, and the FDA regulates dangerous products. There are basically three types of product defects:
- Manufacturing: Some products look fine on the drawing board. But by the time they reach the end of the assembly line, they are unsafe. Perhaps a machine is not properly calibrated, or perhaps the manufacturer substituted cheap components for reliable ones.
- Design: In the rush to get a product to market, designers often miss a fatal design flaw. Alternatively, engineers use a patch to cover up a flaw, and the patch or quick fix fails.
- Marketing: Modern market research allows product makers to tailor their marketing campaigns to specific people or people groups. Tide runs advertisements on CBS, Univision, and CNN, but the ads look different. Such activity is legal. However, it is illegal to market products to vulnerable groups. Drug companies cannot aim prescription painkiller ads at recovering addicts.
Manufacturers are strictly liable for injuries related to dangerous products. Victim/plaintiffs must only prove cause.
Typically, judges assign these claims to Multidistrict Litigation courts. MDL is somewhat like class action, but not exactly.
The facts of individual cases are too different for 100 percent consolidation, but they can be consolidated for pretrial purposes.
Usually, an MDL judge appoints a highly qualified special master to oversee discovery and other pretrial matters.
If the individual case does not settle, it usually goes back to its home jurisdiction for trial.
Deceptive claims and dangerous products often hurt millions of people at once. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. We do not charge upfront legal fees.