Author: Alice Tseng
COVID-19 has resulted in the launch of numerous new products, as well as numerous new claims about existing products. Products can be classified as drugs (including natural health products and hard surface disinfectants) or medical devices as a result of the very nature of the product or because of the claims made. Industry must be careful not to make claims that transform an unregulated product into one that requires authorization by Health Canada; care must also be taken to ensure that even if a product already has Health Canada authorization, no claims are made which exceed what is lawful.
Both Heath Canada and the Competition Bureau are actively taking action against manufacturers and retailers making impermissible claims, including claims that certain drugs, vitamins, food and drink can prevent COVID-19 infections, or claims that certain UV and ozone air sterilization systems or air filters or purifiers will effectively kill or filter out the virus, despite the necessary testing not having been conducted. Regulators often perceive offences that target or take unfair advantage of vulnerable groups as particularly serious and take action accordingly. Industry should be particularly careful when considering making any implied or express COVID-19 claim because, in the current unprecedented climate, regulators consider the entire population to be vulnerable. As noted in the Bureau’s May 6, 2020 release, Competition Bureau cracking down on deceptive marketing claims about COVID-19 prevention or treatment. Which states that “due to the extreme public health concern associated with COVID-19, consumers are highly receptive to claims about a product’s ability to prevent, treat or cure COVID-19”.
In addition to Health Canada’s regular summary of Advertising Incidents (involving pharmaceuticals, medical devices and natural health products), Health Canada now also publishes an additional summary which focuses only on “Health product advertising incidents related to COVID-19”. This summary provides information such as the name of the product, the company / retailer, the claim and whether the matter has been resolved or is ongoing.
See attached PDF for more details on:
- Examples of the more than 140 claims Health Canada has taken action against
- Some principles to keep in mind when marketing COVID-19 related products and services
Though health products have always been subject to more regulatory restrictions than most other consumer products, given the particularly high level of scrutiny by consumers and regulators alike of COVID-19 related products and claims, industry will want to be even more careful with marketing such products.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.