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Does your Web site promote unproven remedies for smallpox, anthrax or other infectious diseases that could be agents of bioterrorism? If so, be afraid, be very afraid — of the Federal Trade Commission. Indeed, the FTC already has sent dozens of warning e-mails to certain Web site operators. THE PROBLEM In the wake of the Sept. 11 tragedy and the following anthrax attacks, Americans have become very nervous about biological and chemical terrorism. As a result, a number of people have sought out treatments over the Internet in the event they become victims of biological and chemical terrorism. And, of course, where there is a demand and a profit to be made, there will be a supply. Unfortunately, the supply that has been offered in many instances is untested and unproven. At a minimum, some of the remedies being sold over the Internet represent a waste of money. In certain instances, it is possible that the remedies being offered actually could cause more physical harm than good. The offered “cures” include such dietary supplements as thyme, colloidal silver, zinc mineral water and oregano oil. Moreover, foreign subsidiaries have offered the antibiotic Cipro over the Internet (the Food and Drug Administration has already shut down some of these Web sites). Currently, there is no proven treatment for smallpox. Moreover, Cipro is a heavy-duty antibiotic that can have serious side effects and should only be used under appropriate circumstances under a doctor’s supervision. Additionally, other antibiotics are now being recommended for anthrax. THE FTC STEPS IN The FTC has become quite concerned about online marketing efforts that mislead and attempt to prey upon the public’s anxiety about anthrax, smallpox and other biological and chemical threats. Accordingly, the FTC has been working with the FDA and law officials in many states to comb the Internet for products that falsely purport to safeguard against biological and chemical threats of terrorism. As part of this effort, the FTC recently sent out by e-mail a “Notice of Potential Illegal Marking of Products or Therapies to Prevent, Treat or Cure Anthrax, Smallpox, or Other Diseases or Health Hazards” to a number of Web site operators with the warning: “Immediate Action Required.” TERMS OF THE FTC NOTICE The FTC’s notice does not mince words, as it begins: “Your Web Site claims that a product or therapy you sell is effective in the treatment or cure of anthrax, smallpox, or another disease or health hazard that may be associated with recent reports about threats of terrorism. We are aware of no scientific basis for such claims. Without competent and reliable scientific evidence to substantiate these claims, the claims are illegal under the Federal Trade Commission Act and must be discontinued immediately. Violations of the FTC Act may result in legal action in the form of a Federal District Court injunction or Administrative Order. An order also may require that you pay money back to customers.” The notice also states that “if you are marketing a dietary supplement, be aware that FDA prohibits any labeling claims that a dietary supplement is intended to prevent, mitigate, treat, or cure anthrax, smallpox, or any other disease under the Federal Food, Drug, and Cosmetic Act as amended by the Dietary Supplement Health and Education Act of 1994. Such claims would require that the product be submitted for FDA approval as a new drug.” The notice further provides that: “FTC investigators have copied and preserved the pages of your online promotional materials and will be revisiting your Web site soon. If your Web site includes any express or implied claim about the benefit of any product or therapy for anthrax, smallpox, or other disease that is not substantiated by competent and reliable scientific evidence, or is otherwise deceptive or fraudulent, you must discontinue these claims immediately.” Finally, the notice requires confirmation via electronic mail within seven days regarding “specific actions you have taken to address the agency’s concerns.” TIME WILL TELL Unfortunately, even during tough times unscrupulous people seek to profit unfairly by taking advantage of societal fears. Hopefully, efforts like those by the FTC will turn the tide against unproven treatments for biological and chemical agents of terrorism. Eric Sinrod is a partner in the San Francisco office of the international law firm Duane Morris, where he focuses on technology and litigation matters. He can be reached at [email protected]and his Web site is http://www.sinrodlaw.com.

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