15 October 2021

Perkins Coie LLP

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Key Takeaways:

On July 1, 2021, the FTC adopted aseries of resolutionsauthorizing investigations into several areas designated as key law enforcement priorities during the next ten years.One of those resolutionsdesignates "acts or practices affecting healthcare markets" as an enforcement priority.

In the months after adopting this broad mandate, the FTC has actively pursued false and deceptive advertising in healthcare markets.

For example, on August 16, 2021, the FTC and the Georgia Attorney Generalsuedthe co-founders of the Stem Cell Institute of America for false marketing in advertising stem cell therapy to seniors. Specifically, the defendants advertised their stem cell therapies as effectively treating orthopedic conditions and diseases. The FTC and the Georgia Attorney General alleged that the defendants never conducted any randomized clinical testing of the treatments to support these claims and that no other studies exist demonstrating that stem cell treatments are effective in treating any orthopedic conditions or diseases.

Similarly, in early September 2021, theFTC sent cease-and-desist lettersto ten different companies demanding that they, among other things, stop selling unapproved diabetes products and making efficacy claims that are not supported by sufficient evidence.

These two actions, coming on the heels of the resolution prioritizing enforcement in the healthcare industry, may portend aggressive FTC policing of healthcare-related advertising. Accordingly, companies offering healthcare services or productsespecially those offering treatmentsshould ensure that their advertisements are backed up by competent and reliable scientific evidence.

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