Practitioners Urged to Use Caution in COVID Communications

The COVID-19 pandemic has created unprecedented challenges, one of which is regulating COVID-related communications. As part of this oversight, the US government, in midsummer 2020, began a massive oversight effort to ensure consumers are protected from false or misleading information about the virus.

The explosion of the novel coronavirus created an urgent need to share valuable public health knowledge widely, so healthcare providers increasingly turned to social media and digital tools such as websites and newsletters. However, many in healthcare are unfamiliar with the regulatory laws governing freedom of speech online, creating a perfect storm of legal issues for the industry.

The First Amendment protects freedom of speech, but not all speech is equal and there are certain limitations on different types of speech. Communications that take place online or in the media are considered “commercial speech.” This speech is economic in nature and must be lawful, not misleading, and include substantiation of claims. When a doctor gives advice online or in the media, that speech falls under the category of commercial speech, and is subject to its restrictions.

As the pandemic spread, many practitioners shared information about ways to boost the immune system to help protect against the virus, or promoted vitamins, minerals, and herbs—common protocols in the natural medicine field—for the prevention and treatment of the virus. However, because there is no known prevention, treatment, or cure for COVID-19, the Federal Trade Commission (FTC) and the Federal Drug Administration (FDA) have adopted a black-and-white position on COVID-19 health claims. Any claim of a product that can mitigate, prevent, treat, diagnose, or cure COVID is against the law.

The FTC and FDA began sending warning letters to medical professionals, many of whom had no idea they were violating the law.

Operating under their mandate to protect consumers from deceptive advertising that may cause harm, the FTC and FDA began sending warning letters to medical professionals, many of whom had no idea they were violating the law. As of July, 2020, over 275 warning letters were issued to doctors and other health and wellness practitioners, drug and dietary supplement companies, retailers, and direct sellers—an unprecedented regulatory response, in both scope and speed.

An uncorrected complaint may require the company or individual to pay a fine or offer some financial redress to consumers, which is not typically covered by malpractice insurance and can be a devastating financial blow. The regulatory warning can have a further cascade effect on the affected party: Banks have stopped merchant accounts as a direct result of these letters; licensing boards and health authorities have begun investigations; and the Department of Justice has opened criminal investigations in some cases.

Healthcare providers and companies must use caution when communicating online, taking care to choose words carefully and substantiate any health claims with strong scientific evidence. In a recent webinar co-hosted by Holistic Primary Care and the American Association of Naturopathic Physicians, a panel of experts offered advice to providers on how to avoid regulatory trouble in communicating with patients in the context of the pandemic. The panel advised providers to be truthful, not omit critical information, and qualify language to include any limitations of the research. Michael D. Levin, the founder of Health Business Strategies, LLC, offered advice to providers to mitigate risk, including engaging an attorney to review websites and newsletters and including language to protect the practice and reduce liability risk. Levin pointed out the importance of training website and marketing staff to ensure all language meets regulatory standards. A safe way to make recommendations to patients is in-person, so office visits are encouraged. Communication in the privacy of a practice is out of the reach of the FTC and FDA.

Regulatory agencies do not seek to intervene in patient/practitioner relationships, but are charged with protecting innocent people from being misled and ensuring providers are responsible in their communications. Keeping the laws in mind can enable practitioners to share important health information safely, without legal consequences.