Antitrust and Unfair Competition Law

Competition: Spring 2022, Vol 32, No. 1

COMBATTING COVID THROUGH . . . CONSUMER PROTECTION? A MULTI-JURISDICTIONAL APPROACH TO PROTECTING PUBLIC HEALTH THROUGH ENFORCEMENT OF CONSUMER FRAUD LAWS

Written by Christina Tusan, William Pletcher, and Alex Bergjans1

I. INTRODUCTION

We have been impressed, unfortunately, with the ability of the SARS-CoV-2 virus, as well as associated scams, to mutate into succeeding waves of variants over the ongoing course of the pandemic. Courts also have long recognized the ability of frauds to evolve to ever-changing conditions.2 The novel, global, and multiyear nature of the COVID-19 crisis—along with the evolving scientific consensus and shifting regulatory environment regarding COVID-19 testing and treatment—allowed enterprising scammers to engage in deceptive and unlawful business practices that existing legal authority and tools were not specifically designed to address.

Fortunately, the adaptability of consumer protection laws—often described as sweeping in scope3—made them an effective tool for addressing new consumer frauds that rapidly developed in the face of the COVID-19 pandemic. This emergency demanded that consumer protection prosecutors and regulators creatively use this existing, adaptable authority to find ways to protect the public from deceptive and, at times, dangerous business practices. It also created the opportunity for prosecutors, regulators, and policymakers to reevaluate and rethink ways that consumer protection laws should be adjusted to more effectively protect the public during the long-term and global environmental and public health emergencies we will face in the future.

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