Advertising during an outbreak or flu season: prevention claims, test and vaccine ads, emergency prices and texts

When an illness is in the news, patients search for answers, and practices want to be found. A flu season, a COVID-19 wave or a measles outbreak near you is a fair reason to tell patients you offer shots, tests or visits. It is not a reason to promise protection you cannot prove, to raise prices because people are scared, or to send marketing texts as if they were public health alerts.

This guide is for owners and marketing staff at independent practices, urgent care centers, med spas, chiropractic and integrative clinics. It covers the federal rule on health claims, what the FDA and FTC warning letters from 2020 and 2021 show about practices that crossed the line, how to word vaccine and test ads, emergency pricing laws in Texas and California, the emergency exception for calls and texts, and ad platform rules for sensitive events. For FDA’s ozone rule and the ozone enforcement cases in more detail, see our guide to ozone therapy marketing rules.

The short version

• An outbreak does not loosen the rules. The FTC Act bans deceptive acts and false advertisements for services as well as products. A claim that a service prevents, treats or cures a disease needs competent and reliable scientific evidence before the ad runs.
• Practices have received warning letters. FDA and FTC letters in 2020 and 2021 went to an integrative medicine practice and a chiropractic practice for COVID-19 prevention and treatment claims on their websites, and an FDA letter went to a dental practice selling at-home test kits the FDA had not authorized.
• Vaccine and test ads should say what is offered, not what it promises. Name the shot or test, who it is for, when and where, and link to the CDC for current guidance.
• Emergency pricing laws can apply. Texas bans exorbitant prices for medicine and other necessities during a declared disaster. California caps increases at 10 percent for listed goods, including medical supplies, after an emergency declaration.
• Marketing texts are not emergency messages. The FCC said in 2020 that calls advertising services, including home test kits, are not made for an emergency purpose and need the consent the TCPA requires.

What the FTC Act requires when an illness is in the news

Under 15 U.S.C. 45, unfair or deceptive acts or practices in or affecting commerce are unlawful. 15 U.S.C. 52 makes it unlawful to disseminate a false advertisement to induce the purchase of food, drugs, devices, services or cosmetics. Services are on that list, so a clinic visit, an IV drip, an adjustment or a test appointment is covered as much as a bottle of pills.

15 U.S.C. 55 defines a false advertisement as one that is misleading in a material respect, and it counts what the ad suggests through words, design, sound or images, and what it fails to reveal. An ad does not need to say “cures” to make a cure claim. A photo of a crowded waiting room next to “Stay well this season with our immune drip” suggests the drip keeps people from getting sick.

The standard the FTC applied in its outbreak letters is spelled out in the letters themselves. In the joint FDA and FTC letter dated June 30, 2020, the FTC wrote that it is unlawful under the FTC Act “to advertise that a product or service can prevent, treat, or cure human disease unless you possess competent and reliable scientific evidence, including, when appropriate, well-controlled human clinical studies, substantiating that the claims are true at the time they are made.” The evidence has to exist when the ad runs. A study that might come out later does not count.

The COVID-19 Consumer Protection Act and why it matters now

In December 2020, Congress passed the COVID-19 Consumer Protection Act (Pub. L. 116-260, div. FF, title XIV, section 1401), printed as a note to 15 U.S.C. 45. For the duration of the COVID-19 public health emergency declared under section 319 of the Public Health Service Act, it made a deceptive act or practice associated with the treatment, cure, prevention, mitigation or diagnosis of COVID-19, or with a COVID-19 government benefit, a violation treated as a violation of an FTC rule. Under 15 U.S.C. 45(m)(1)(A), the FTC can sue for civil penalties against a person who knowingly violates such a rule.

According to the HHS fact sheet on the end of the COVID-19 public health emergency, that emergency ended on May 11, 2023. The special COVID-19 rule is tied to the emergency, but the FTC Act sections above are not. A false or unsupported claim about preventing or treating COVID-19, flu, measles or any other illness is still a deceptive practice under 15 U.S.C. 45 and 52. The lesson for the next outbreak is that Congress has shown it can add penalties for health claims tied to a specific emergency.

What the warning letters to practices show

The FDA keeps a page on fraudulent COVID-19 products that links to its warning letters. The page says the FDA issues warning letters to firms selling products with claims to prevent, treat, mitigate, diagnose or cure COVID-19. The recipients on that list include clinics and practices, not only online product sellers. We describe three letters below without naming the recipients or products, because the point is the pattern.

• June 15, 2020, a dental practice. The FDA wrote that the practice’s website offered COVID-19 test kits for sale directly to consumers for home use without FDA approval, clearance or authorization, and that the kits were adulterated and misbranded devices.
• June 30, 2020, an integrative medicine practice. In a joint letter, the FDA and FTC wrote that the practice’s website offered a supplement pack and other products intended to prevent or treat COVID-19. The FTC also quoted claims from the site about IV vitamin C and an ozone blood treatment, and wrote that claims for products or services like these were not supported by competent and reliable scientific evidence. The letter asked for a reply within 48 hours describing the steps taken.
• July 28, 2021, a chiropractic practice. In a joint letter, the FDA and FTC wrote that the practice’s website offered two supplements as products to mitigate, prevent, treat, diagnose or cure COVID-19, and that they were unapproved new drugs and misbranded under the Federal Food, Drug, and Cosmetic Act.

Each of these was a health practice with a website. The claims that drew the letters were the kind a practice writes when it wants to help worried patients: a protection pack, an immune drip, a home test. The letters show that regulators read practice websites, and that a service claim in a blog post or booking page counts as advertising.

Prevention and treatment claims for services other than vaccines

The hardest claims to support during an outbreak are prevention and treatment claims for services that are not the approved vaccine or treatment for that illness. IV vitamin drips, supplements, ozone, red light, adjustments, cold plunges and “immune boosting” packages all fall here. For COVID-19, the June 30, 2020 letter said no well-controlled study was known to exist for the products it named, so prevention or treatment claims for them were unsupported.

If you offer one of these services, describe what it is and what it involves, and keep the outbreak out of the ad. Do not tie the service to the illness in the news, by words or by imagery. Our IV therapy clinic marketing guide and integrative medicine claims guide go further on wording for these services.

Testimonials do not fix an unsupported claim. A patient who says “I never got sick after my drips” is making an efficacy claim on your behalf, and under 16 CFR 255.1(d), advertisers are subject to liability for misleading or unsubstantiated statements made through endorsements. Our patient testimonials guide covers this.

Vaccine ads: say what you offer and link to the CDC

A vaccine ad is on firmer ground because the product has been reviewed by the FDA and the CDC publishes guidance on who should get it. The risk shifts from the claim itself to how it is framed. Recommendations change, eligibility can depend on age and health conditions, and coverage depends on the plan.

Write what you offer, for whom, and when. Name the vaccine by disease, such as flu, COVID-19 or measles, mumps and rubella, rather than promising an outcome. When you describe who should get a shot, quote or link the current CDC page instead of writing your own summary that will go out of date. The CDC pages on flu and measles and the adult immunization schedule are the places to send patients for current guidance.

If you say a shot is free or covered, say for whom and under what conditions. Our flu shot clinic marketing guide covers “free shot” wording and incentives, and our adult vaccine outreach guide covers shingles, pneumococcal and RSV pages and Medicare coverage.

Test ads: authorized is not approved

During a declared emergency, the FDA can issue an emergency use authorization under 21 U.S.C. 360bbb-3. The statute lets the FDA authorize the emergency use of a drug, device or biological product, including one that is not approved, licensed or cleared. An authorized test is not an approved test, and an ad should not call it “FDA approved”.

For a test you run in the office or send to a lab, the ad should say what the test looks for, how a sample is collected, when results come back, and what the patient should do while waiting. Do not promise accuracy you have not checked against the test’s own labeling. Do not sell or ship home test kits unless you have confirmed their FDA status. The June 15, 2020 letter to a dental practice concerned exactly that.

A test result is not a diagnosis of everything. A negative result on a rapid test means what the test labeling says it means, and the ad should not suggest it clears someone to travel, work or visit family. For cash-pay tests ordered online, our direct-to-consumer lab testing guide covers ordering physician and result rules.

Urgency, fear and scarcity

Outbreak ads can lean on fear: graphic images, counts of the sick, “Don’t be next”. Two rules apply. First, 15 U.S.C. 55 looks at what an ad suggests as a whole, so fear imagery paired with a service can turn into an implied prevention claim. Second, ad platforms limit this content. The Google Ads inappropriate content policy does not allow promotions that are likely to shock or scare, and it lists public health emergencies among its examples of sensitive events, during which Google Ads may take a variety of actions.

Scarcity claims have to be true. “Only 20 doses left” or “Last week to get tested” is a factual claim. If you write it, keep the record that shows it was true when the ad ran, and pause the ad once it stops being true. Our same-day and availability claims guide covers this for appointment slots.

Prices during a declared emergency

Price gouging laws are state laws, and they differ in what they cover and when they apply. Two examples show the range. Whether a given law reaches a medical service, as opposed to medical goods, depends on the wording and on how courts and the state attorney general read it, so ask counsel before you change prices during an emergency.

Texas. Tex. Bus. and Com. Code 17.46(b)(27) lists as a deceptive trade practice taking advantage of a disaster declared by the governor or the president by selling or leasing fuel, food, medicine, lodging, building materials, construction tools “or another necessity” at an exorbitant or excessive price, or demanding such a price. Under section 17.4625, this applies during the designated disaster period, which starts on the earliest of the disaster date or the declaration and ends on the 30th day after the declaration expires or is terminated.

California. California Penal Code 396(b) makes it unlawful, for 30 days after a state or local emergency is declared, to sell or offer goods and services on its list, including medical supplies and emergency supplies, for more than 10 percent above the seller’s price just before the declaration. A larger increase is allowed if the seller can prove it came from added costs from suppliers, labor or materials, within the limits the section sets. The section defines medical supplies to include prescription and nonprescription medications, bandages, gauze, isopropyl alcohol and antibacterial products, and the prohibitions can be extended. A violation is a misdemeanor punishable by up to one year in county jail, a fine of up to ten thousand dollars, or both, and is also unfair competition under Business and Professions Code 17200.

For a practice, the safe course is to keep prices for tests, supplies and visits where they were before the declaration unless costs rose, document any cost increase, and say clearly in ads what the patient will pay. Our cash price advertising guide covers how to state prices.

Calls and texts: marketing is not an emergency purpose

The TCPA rules on autodialed and prerecorded calls make an exception for calls made for emergency purposes. Under 47 CFR 64.1200(f)(4), emergency purposes means calls made necessary in any situation affecting the health and safety of consumers.

In Declaratory Ruling DA 20-318 on March 20, 2020, the FCC said that a COVID-19 call qualifies only if it comes from a hospital, a health care provider, a health official or another government official, or someone acting under their express direction, and if its content is solely informational, made necessary by the outbreak, and directly related to the health or safety risk. The FCC said that calls containing advertising or telemarketing of services are not made for an emergency purpose, and gave home test kits as one example. Those calls need the prior express consent the rules require.

So a text telling your patients that the clinic is closed because of an outbreak, or that the health department has issued an exposure notice, may fit the exception. A text announcing a new rapid test package or a flu shot special is marketing and needs the consent marketing texts need. Our business texting rules guide covers that consent.

Questions to ask before an outbreak campaign

• Does any line, image or video in the ad suggest the service prevents, treats or cures the illness in the news?
• If it does, do we have competent and reliable scientific evidence for that claim today, and can we show it?
• Is the vaccine or test described by what it is, with the CDC or the FDA labeling as the source for who should get it?
• Does anything call an authorized product “approved”?
• Is each scarcity or availability claim true, and who will pause the ad when it stops being true?
• Has a disaster or emergency been declared in our state or county, and did any price change since the declaration?
• Are the texts and calls we plan informational, or are they marketing that needs consent?
• Who at the practice reviews outbreak ads before they run, and who checks them again when CDC guidance changes?

Use and avoid

• Use: “Flu shots for [ages you offer], walk in Monday to Friday. See the CDC flu page for who should get vaccinated.” Avoid: “Our flu shots keep your family from getting sick this winter.”
• Use: “Rapid COVID-19 and flu testing in the office. Results in about [time stated on the test labeling].” Avoid: “FDA approved rapid test, 100 percent accurate.”
• Use: “IV hydration. A clinician reviews your health history first.” Avoid: “Boost your immunity before measles reaches our town.”
• Use: “We have [number] appointments open this week.” when the number is current. Avoid: “Last chance to protect yourself.”
• Use: “Prices for testing have not changed.” Avoid: “Outbreak pricing in effect.”
• Use: “[Practice name] is closed today on the county health department’s advice. If you have trouble breathing, call 911.” Avoid: a marketing text that opens with “Health alert”.

An illustration

This example is invented. [Practice name] is a family practice with an urgent care wing in Texas. A measles outbreak is reported in a nearby county, and the governor declares a disaster for the region. The marketing lead drafts three pieces: a search ad for “measles shot near me”, a social post with a photo of a child with a rash and the line “Protect your kids now, before it’s too late”, and a text to the full contact list headed “Measles alert” with a link to book.

Dr. [Name] reviews the drafts with the practice’s attorney. The search ad stays, rewritten to name the MMR vaccine, the ages it is offered for and the walk-in hours, with a link to the CDC measles page. The social post loses the rash photo and the urgency line, which could be read as a scare promotion and would likely run into the platform’s sensitive events handling. The text is split in two: an informational message to current patients about clinic hours and exposure steps from the health department, and a separate vaccine reminder sent only to patients who have consented to marketing texts. The practice also confirms that the price for the vaccine visit has not changed since the declaration and keeps a note of that in its files.

Checklist

• No prevention, treatment or cure claim for a service without competent and reliable scientific evidence in hand
• No link, by words or images, between a non-vaccine service and the illness in the news
• Vaccines and tests named by what they are, with CDC links for current guidance
• “Authorized” and “approved” used correctly, and no home test kits sold without confirmed FDA status
• Scarcity and availability claims true when they run, with a person responsible for pausing them
• No shock or fear imagery in ads, and ad platform policies checked
• Prices for goods and services unchanged since an emergency declaration, or cost increases documented and reviewed by counsel
• Marketing texts and calls sent only with the consent the TCPA requires, kept apart from informational notices
• Symptom pages say to call 911 for emergencies
• Campaign reviewed again whenever CDC guidance changes

How we help

We build websites, local search, Google Ads and lead generation and AI front desk tools for independent practices and health businesses. For outbreak and seasonal campaigns, that means vaccine and test pages that link to current CDC guidance, ad copy that describes services without prevention claims, and booking flows that keep marketing consent separate from patient notices, with your attorney reviewing the claims. Our tools are built with HIPAA in mind. We confirm in writing what a BAA covers before any patient information flows through a tool, and if it is not covered, we do not route patient information through it. We are not a healthcare provider and we do not give legal or medical advice. For the wider rules, see our healthcare marketing rules guide.

Sources

• 15 U.S.C. 45: Unfair methods of competition and deceptive acts, with the COVID-19 Consumer Protection Act note (Cornell LII)
• 15 U.S.C. 52: Dissemination of false advertisements (Cornell LII)
• 15 U.S.C. 55: Additional definitions, including false advertisement (Cornell LII)
• 16 CFR 255.1: General considerations for endorsements (eCFR)
• 21 U.S.C. 360bbb-3: Authorization for medical products for use in emergencies (Cornell LII)
• FDA: Fraudulent Coronavirus Disease 2019 (COVID-19) Products, with links to warning letters
• HHS: Fact Sheet: End of the COVID-19 Public Health Emergency, May 9, 2023 (Internet Archive copy)
• 47 CFR 64.1200: Delivery restrictions, including the definition of emergency purposes (eCFR)
• FCC Declaratory Ruling DA 20-318, COVID-19 emergency calls, March 20, 2020 (PDF)
• Tex. Bus. and Com. Code 17.46: Deceptive trade practices unlawful
• Tex. Bus. and Com. Code 17.4625: Price gouging during declared disaster
• California Penal Code 396 (Internet Archive copy of leginfo, August 8, 2026)
• Google Ads policy: Inappropriate content, including shocking content and sensitive events
• CDC: Influenza (flu)
• CDC: Measles
• CDC: Adult immunization schedule by age

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