In a joint press release, the Federal Trade Commission and the Food and Drug Administration announced a “joint diabetes initiative” to stop deceptive internet advertisements and sales of products the agencies claim are misrepresented as cures or treatments for diabetes. To read the FDA press release, click here. For the FTC press release, click here.
The joint FTC/FDA effort is described as coordinated and multi-national. The International Consumer Protection and Enforcement Network (“ICPEN”) led off the effort by surfing the web to identify alleged fraudulent diabetes therapies.
ICPEN, a multi-national organization of law enforcement authorities, includes members of the Mexico, United States and Canada Health Fraud working group (MUCH), and the attorneys general of Alaska, Michigan, Ohio, Virginia and Wisconsin. The ICPEN web surf took place earlier this year and was publicized by the FTC. The involvement of MUCH is notable because that organization was previously involved in the Federal Trade Commission’s campaign against fraudulent weight loss products.
The FTC’s Actions
As a result of the internet sweep, the FTC says it sent warning letters to 84 domestic and seven Canadian websites targeting U.S. consumers and referred 21 more sites to foreign governments. According to the press release, 25 percent have already changed their claims or removed their pages from the internet as a result.
The FTC also created a “teaser” website that appears to advertise a diabetes treatment called Glucobate. However, when consumers click on the links in the site for more information they are instead directed to information about avoiding such ads in the future. All of this has been coordinated to coincide with diabetes awareness month which is November.
The FTC has previously used web surfing as a means of developing information about targets. Most recently in a report dated September 27, 2006 from the FTC’s Division of Enforcement entitled “Multimedia Hispanic Surf”, the FTC targeted companies making deceptive health claims in Spanish on the Internet.
A few diabetes supplement related complaints show up on the FTC radar. For example, back in August of this year, a company called Fagee USA Group and several other defendants agreed to a stipulated final judgment and order in a case filed in the Central District of California that banned the defendants from claiming its products treated diseases including diabetes. The stipulated order also provided for disgorgement of over $10,000.00 attributable to sales of a diabetes cure called Dia-cope. To read the modified stipulated final judgment and order for a permanent injunction and monetary relief, click here.
The FDA’s Actions
The FDA’s contribution was warning letters sent to 24 firms that market dietary supplements that the FDA says use claims to treat, cure, prevent or mitigate diabetes. A list of warning letters, separate from the FDA’s usual database of warning letters, is posted here.
All of this activity around supplements to support healthy blood sugar levels makes us wonder whether the FTC and FDA plan further enforcement action against supplement companies. Such action would be consistent with prior enforcement efforts against weight loss supplement marketers, where the progression of FDA and FTC action was from a) warning letter, to b) seizure of product (FDA) or administrative complaint (FTC), to finally c) prosecution in Federal District court (FDA or FTC).
The warning letters posted on the FDA site are curious in that they all lack dates. Typically, when the FDA posts warning letters it includes the date of the letter and posts an image of the actual letter sent to the subject of the complaint. None of the warning letters contained in the list of firms targeted for marketing dietary supplements for diabetes are listed in the FDA warning letter database. Curiously, a sample warning letter is also listed on the FDA site without any indication as to why such a sample letter is being published.
Update: The warning letters have been posted in the FDA database.
About Joel Rothman
Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.
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