COVID-19 opportunists are capitalizing on the fear of Canadians by offering a variety of products to prevent, diagnose, or treat the disease, such as unapproved masks or testing kits and unproven vitamin or homeopathic treatments. In fact, Health Canada has not approved anything that will prevent, treat, or cure COVID-19, although several trials are underway. Regulators are working hard to keep harmful products off the market, but are they doing enough?
According to the Food and Drugs Act, it is an offence to advertise or sell products such as drugs or medical devices in a manner that is false, misleading, or deceptive, or likely to create an erroneous impression regarding efficacy. Although the Act contains a variety of sanctions for these activities, Health Canada’s primary response is to direct companies to remove false or misleading claims from websites and advertising materials. Health Canada has cracked down on a variety of products alleged to treat COVID-19 including disinfectants, plant-based elixirs, mushroom blends, UV lamps, and oregano oil.
Canadians are also protected by the Competition Bureau, which is responsible for enforcing the Competition Act. This legislation prohibits deceptive marketing practices, such as false or misleading claims about a product’s ability to prevent, treat, or cure COVID-19. Violators can be subject to significant fines. The Criminal Code also prohibits fraud, and can be used to prosecute COVID scams. In one of the rare prosecutions relating to COVID-19 health products, an individual was criminally charged with fraud after attempting to import unapproved testing kits.
Perhaps even more dangerous than unapproved products sold over the internet or in stores are those peddled by health professionals. The concern is that individuals may not be appropriately skeptical, given that these are trusted experts. Although some self-regulatory bodies have cautioned their members against recommending COVID-19 cures, the problem persists. For example, the College of Chiropractors of Ontario has directed dozens of its members to cease claiming that chiropractic care boosts the immune system (thereby guarding against COVID-19). As with Health Canada, self-regulatory bodies have approached this problem by issuing warnings and directions, although they can also impose sanctions such as license suspensions.
Limited proactive enforcement reflects a gaping hole in how regulators address false or misleading health products or claims. Bogus therapies propagate faster than enforcement actions, particularly during a public health crisis, when people may be desperate for cures. So far, regulators have not implemented tools to get ahead of the lies and deception. Truthful advertising laws depend primarily on consumer complaints to trigger enforcement, and purveyors of fake or unproven cures have become very adept at generating enough consumer support to keep complaints at bay by preying on consumer fears. Proactive regulatory tools, such as fraud prevention and awareness campaigns and regulator-driven monitoring, are often not deployed by Canadian regulators, largely due to a lack of enforcement capacity and resources. The unfortunate truth, therefore, is that those selling fake products can stay ahead of the regulatory game. And with the increasing use of artificial intelligence to target consumers, regulators are far behind in marshalling technology to detect and stop fraudulent electronic advertising.
Fragmentation of regulatory authority also enables the proliferation of fake or unproven health claims and products. While the federal government regulates health products and related advertising, provinces/territories regulate the delivery of healthcare services and health professionals. One strategy used by purveyors of unproven health products is to claim that they are providing a healthcare service and, as such, should be exempt from Health Canada regulations. This strategy has been used, for example, by physicians marketing unproven cell therapies. Health Canada recently sought to close this loophole by clarifying and strengthening regulations for new and innovative health products. The involvement of health professionals such as chiropractors in COVID-19 opportunism should serve as a test of the updated framework. Greater collaboration between federal and provincial regulators is also needed to address the overlapping jurisdiction over false and misleading practices.
It is crucial that regulators are vigilant in cracking down on dangerous claims that products will prevent, treat or cure COVID-19. These products may not only be ineffective but could have serious side effects. If patients think that an at-home treatment will cure COVID-19, they may delay seeking testing or medical treatment, thereby putting their health at risk. And if an at-home test suggests that they are not infected or they believe that a vitamin treatment will protect them from contracting the disease, they may be less vigilant about social distancing or other infection control practices, thereby risking spreading the disease.
Lorian Hardcastle is an Assistant Professor in the Faculty of Law and Cumming School of Medicine at the University of Calgary and is a Member of the AMR One Health Consortium.
Ubaka Ogbogu is an Associate Professor in the Faculties of Law and Pharmacy & Pharmaceutical Sciences at the University of Alberta, and a Pierre Elliott Trudeau Foundation Fellow (2020). The opinions expressed are those of the authors and do not represent those of the Pierre Elliott Trudeau Foundation.