On March 10, the Department of Justice (DOJ) moved to drop a lawsuit filed on behalf of the Federal Trade Commission (FTC) against Xlear, which marketed a line of over-the-counter saline nasal spray products touted to treat and prevent COVID-19 and similar viruses.

The DOJ filed the lawsuit in October 2021, alleging that Xlear violated the FTC Act and the COVID-19 Consumer Protection Act by disseminating claims that the FTC argued were false and misleading.

Despite a July 2020 warning from the FTC that the company’s COVID-19-related claims violated the FTC Act, Xlear continued to make various COVID-19 treatment and prevention claims, including that in vitro studies conclude that their sinus “nasal spray is ‘an effective…and replicable means to deactivate SARS-CoV-2…to an undetectable amount of infectious virus.'”

According to the complaint, which was filed in the United States District Court for the District of Utah, Xlear had no competent and reliable scientific evidence to support their claims. The company simply mischaracterized and/or ignored the conclusions of the referenced studies. Other notable COVID-related claims made by Xlear include that the nasal spray offers “up to four hours” of protection, and consumers “should be using Xlear as part of a layered defense to prevent getting COVID-19.”

The DOJ’s Stipulation of Dismissal with Prejudice, which was submitted alongside Xlear, is brief and provides no reason for the dismissal request. The joint-filing is limited to one paragraph, and “each party agrees to be responsible for its own costs and fees…”

Since the DOJ and FTC did not provide an explanation for their request to dismiss the case, it is difficult to pinpoint the factors motivating this action and what it means for other cases now pending, as well as potential future cases.

In the interim, state attorneys general and private plaintiff class actions are likely to continue to pursue claims for supplements that they allege make deceptive disease claims. The FTC may provide further guidance in the future on what drove this decision, which could help guide businesses making disease claims going forward. For now, we can only speculate. 

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Photo of Leonard L. Gordon Leonard L. Gordon

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in…

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in investigations and litigation with the FTC, state attorneys general, the Department of Justice (DOJ), and the Consumer Financial Protection Bureau (CFPB). Len also represents clients in business-to-business and class action litigation involving both consumer protection and antitrust issues. He also counsels clients on antitrust, advertising, and marketing compliance issues.

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Todd A. Harrison

Todd Harrison, co-chair of Venable’s FDA Group, guides clients through the myriad government regulations associated with food and drug labeling and marketing. Working extensively in the areas of food and dietary supplement safety, labeling, and advertising claims, Todd helps clients in the consumer…

Todd Harrison, co-chair of Venable’s FDA Group, guides clients through the myriad government regulations associated with food and drug labeling and marketing. Working extensively in the areas of food and dietary supplement safety, labeling, and advertising claims, Todd helps clients in the consumer products, drug and medical device, and dietary products industries comply with government regulations. He regularly achieves favorable results in defending clients against Federal Trade Commission (FTC) advertising complaints, enforcement actions, and prosecutions, and overcoming competitor challenges in courts and other fora.

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