Does ‘ABA’ Letter Prove Anyone Making COVID-19 Masks Can Be Sued?

A letter falsely attributed to the Ohio State Bar Association made some questionable claims.

  • Published 4 August 2020

Claim

A July 2020 letter purportedly sent by the Ohio State Bar Association (OSBA) was accurate in stating that any retailer or manufacturer — including those operating from homes — could be sued for selling or creating COVID-19 protective face masks that were not medically approved, defective, or without proper labeling.

Rating

Mostly False
Mostly False
About this rating

What's True

Under Ohio law, consumers can bring lawsuits against suppliers for unfair or deceptive practices, though a lot of these practices are up to court interpretation.

What's False

The letter in question was not sent by the Ohio State Bar Association (OSBA) nor the American Bar Association (ABA). The OSBA also warned readers to be wary of its contents.

What's Undetermined

Given government recommendations encouraging homemade masks, the way these laws would apply to particular situations like masks created at home remains unclear.

Origin

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As Ohio Gov. Mike DeWine announced a statewide mask mandate starting July 23, 2020, amidst a rise in COVID-19 cases in the region, online rumors suggested any mask manufacturers, including those selling masks from home, were at risk of facing lawsuits. 

Snopes readers alerted us to the circulation of the above-displayed letter purportedly from the Ohio State Bar Association (OSBA), printed on an American Bar Association (ABA) letterhead. Dated July 19, 2020, the letter claimed that under “Ohio Consumer Laws” individuals could bring a lawsuit against establishments selling or manufacturing masks without licenses or warning labels, including those selling out of their homes, especially if wearers got lung damage.

The letter, full of grammatical errors and deprived of punctuation, stated:

Under Ohio Consumer Laws you can now bring lawsuit against any retail establishment selling or manufacturing Face Masks or Facial Coverings for the purpose virus protection

You can now file lawsuits against anyone selling a facial covering that has not been Medically Approved to filter contagious diseases. This includes any Homemade or Factory made mask

With the rise in lung damage caused by pleurisy you can Legally sue for Medical Damages and or selling a Medical Device without license

Any mask sold without proper warning labeling sewn into the fabric will be considered in violation, you can also file a mislabeled or not FDA approved lawsuit

You can also pursue anyone selling face masks out of their home
You can also bring suit if selling a medical device without license
You can also bring suit for Illegal Monetary Sales and failure to disclose income under IRS 254-70994US
You can also now bring suit against any small business that knowingly sells a defective face covering that causes lung damage

We believe these lawsuits will be very lucrative moving forward

We learned that the letter attribution was fake and its contents were suspect. In a statement on their Facebook page, the OSBA said they did not issue a letter and readers should be “wary of its contents”:

We reached out to the OSBA who would not comment on the contents of the letter because as an organization they refrain from giving legal advice. 

Snopes also reached out to the Ohio attorney general’s office about the information in the letter. A representative confirmed that under Ohio law consumers can bring lawsuits against suppliers for unfair and deceptive practices, but much of what constitutes a violation relies on court interpretation. According to the Ohio Revised Code, such deceptive practices include:

That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have;

That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not […]

It is likely that this applies to any mask manufacturers that make deceptive promises about the quality of their product(s) and the level of protection the product(s) provide.

DeWine and the Centers for Disease Control and Prevention (CDC) recommended the use of homemade and non-medical grade masks in addition to practicing social distancing. The CDC stated that surgical masks or respirators are “critical supplies that should continue to be reserved for healthcare workers.” The Ohio state and federal governments have shared recommendations for do-it-yourself (DIY) or homemade masks without any requirement for a license or warning labels. Consumer protection laws may apply to people selling these homemade masks without affixed labels, but the actual legal implications remain unclear given government recommendations. 

The Federal Drug Administration (FDA) regulates masks used for medical purposes only. In April 2020, when health care providers in the U.S. reportedly did not have access to enough personal protective equipment, including masks, the FDA issued an Emergency Use Authorization (EUA) for face masks used by the general public and in health care settings during the COVID-19 public health emergency. In short, this EUA required that face masks should be labeled accurately and their use not be misrepresented. Authorized masks were to meet the following requirements: 

1. The product is labeled accurately to describe the product as a face mask and includes a list of the body contacting materials (which does not include any drugs or biologics);

2. The product is labeled accurately so that it does not claim to be intended for use as a surgical mask or to provide liquid barrier protection;

3. The product labeling includes recommendations against use in a clinical setting where the infection risk level through inhalation exposure is high;

4. The product is not labeled in such a manner that would misrepresent the product’s intended use; for example, the labeling must not state or imply that the product is intended for antimicrobial or antiviral protection or related uses or is for use such as infection prevention or reduction;

5. The product is not labeled as a respiratory protective device, and therefore should not be used for particulate filtration; and

6. The product is not labeled for use in high risk aerosol generating procedures.

In sum, although the above-displayed letter was fake, it is possible that consumer protection laws that apply to all kinds of manufacturers would also apply to mask manufacturing, even though its interpretation in situations involving homemade masks is unclear. We thus rate this claim as “Mostly False.”