At the beginning of the COVID-19 pandemic, both Health Canada and the Competition Bureau were quick to issue
statements indicating they would continue to monitor the
marketplace for false, misleading or deceptive marketing activities
related to products claiming they could prevent, treat or cure the
virus. Ad Standards was also quick to publish a reminder on how to substantiate advertising
claims for COVID-19 while adhering to Health Canada's terms
of marketing authorization. Similarly, we published an article
describing how Canadian courts can act swiftly to stop trademark
infringement and false advertising even through the
pandemic.
Claims for protection against COVID-19 will need to be
pre-approved by Health Canada. It has continued to state that: "Currently there
is no vaccine or therapeutic product for COVID-19 that is
authorized to treat or prevent the disease," which includes
vaccines, drugs, natural health products, medical devices, or
cleaning products such as antiseptics, disinfectants or
sanitizers.
The Competition Bureau has taken action
against companies selling filters or air purifiers that claim to
filter out coronavirus. Health Canada has also begun publishing a list of COVID-19-related advertising
incidents where they have taken compliance and enforcement
action. The list outlines products and corresponding companies or
advertising media that were found to engage in non-compliant
marketing. Health Canada has taken compliance and enforcement
actions against these organizations, as required. The list includes
advertising incidents that are currently under review or have been
resolved.
Opportunities for compliant COVID-19 advertising
Notwithstanding the above, there does remain an appropriate and
compliant way to market products and their ability to provide
health benefits in direct relation to COVID-19 and the infectious
agent, SARS-CoV-2.
For example, Health Canada has stated that disinfectant products
meeting efficacy standards for emerging viral pathogens could make
indirect COVID-19 efficacy claims for SARS-CoV-2. Such products
include those where Health Canada has approved the following claims
on the label:
- Claims the product is a broad-spectrum virucide
- A specific claim against non-enveloped viruses of the picornaviridae, caliciviridae, astroviridae, reoviridae, or papillomaviridae families or
- A specific claim against a specific coronavirus, such as
o MERS-CoV
o SARS-CoV
o human coronavirus strain 229E
For further certainty, Health Canada is now publishing a list of
disinfectants for use against SARS-CoV-2
(COVID-19), which could potentially make such indirect COVID-19
claims.
Another method to allow direct COVID-19 claims arose under an interim order issued by the minister of health
on March 18. The order's intention was to enable an
expedited review of medical devices indicated to diagnose, treat,
mitigate or prevent COVID-19. While an authorization under the
order is limited to medical devices, there may be an opportunity
for a product manufacturer to submit evidence and supporting
documentation to allow the product to be represented for use
specifically for COVID-19.
It is clear Health Canada and the Competition Bureau continue to
remain vigilant in monitoring and taking action against false,
misleading or deceptive marketing practices related to COVID-19. It
is important to remain compliant, while developing marketing
materials to minimize business disruption and maintain a
brand's reputation and customer confidence.
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