Considerations when advertising the health benefits of your products

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.