The sellers of a supposed N95-grade face mask called the Zephyr will pay more than $1.1 million to provide full refunds to consumers nationwide, as well as a civil penalty, under a proposed settlement the Federal Trade Commission announced today.
The stipulated order settling the complaint also bars Razer, Inc., along with its affiliated entities involved in the development, marketing, and sale of the Zephyr, from making COVID-related health misrepresentations or unsubstantiated health claims about protective health equipment and requires them to pay a civil penalty of $100,000.
According to the FTC, while Razer advertised the Zephyr masks as N95-grade, they never even submitted them for testing to the FDA or National Institute for Occupational Safety and Health (NIOSH), and the masks were never certified as N95. The complaint alleges that Razer only stopped the false advertising following negative press coverage and consumer outrage at the deceptive claims. The Department of Justice filed the case upon notification and referral from the FTC.
“These businesses falsely claimed, in the midst of a global pandemic, that their face mask was the equivalent of an N95 certified respirator,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “The FTC will continue to hold accountable businesses that use false and unsubstantiated claims to target consumers who are making decisions about their health and safety.”
The complaint alleges the defendants deceptively advertised Razer’s Zephyr mask as an N95-equivalent, COVID-protective product. They offered the standard Razer Zephyr, consisting of one Zephyr mask and three sets of filters, for $99.99; the Razer Zephyr Starter Pack, consisting of one Zephyr mask and 33 sets of filters, for $149.99; and a Razer Zephyr Filter Pack, containing 10 sets of filters, for $29.99.
According to the complaint, the defendants began selling the Razer Zephyr and the Razer Zephyr Filter Pack to U.S. consumers online and in three stores – in Seattle, San Francisco, and Las Vegas – in October 2021. Later that month, they started selling the Razer Zephyr Starter Pack to U.S. consumers online through limited “drops.”
In their advertisements, the defendants initially falsely marketed their Zephyr masks as an N95 or N95-equivalent mask that would protect consumers from contracting COVID-19. Most of these advertisements were on the Internet, including on the defendants’ own website and social media posts and videos on sites including TikTok, Twitter, Instagram, Facebook, Discord and YouTube.
The complaint alleges that the defendants misrepresented the Razer Zephyr as an N95-equivalent mask that met standards established by NIOSH, the agency that approves N95 respirators. By definition, N95 respirators must filter at least 95 percent of ambient air particles between .1 and .3 micrometers in size, with even higher filtration levels for larger particles. While respirators and masks are designed for different purposes, N95 respirators are frequently referred to as N95 masks.
Despite the N95-related claims the defendants made in their ads, Razer never submitted a facemask to NIOSH for approval for any type of certification and NIOSH accordingly never certified any version of the Zephyr mask as an N95 respirator. The defendants also never sought or received permission from NIOSH to use the term N95 in marketing and selling its products. Accordingly, the defendants never had the required approval to advertise the Zephyr as an N95 facemask.
The proposed order settling the complaint addresses each alleged violation of the FTC Act. First, it bans Razer from making, without prior FDA approval, any claims that any product prevents or reduces the likelihood of infection with, or transmission of, the COVID-19 virus; reduces the severity or duration of COVID-19; or otherwise cures, mitigates, or treats COVID-19.
The proposed order also prohibits the defendants from representing the health benefits, performance, efficacy, safety, or side effects of protective goods and services (as defined in the proposed order), unless they have competent and reliable scientific evidence to support the claims made. The proposed order also prohibits the Razer defendants from making certain marketing and advertising misrepresentations, including that any goods or services are affiliated with, endorsed, certified, cleared, authorized, approved by, registered, or otherwise connected to any government entity.
Next, the order prohibits them from the deceptive use of government logos or trademarks to imply such an affiliation, from falsely claiming that any product meets government-established standards when it has not, and from misrepresenting any other fact material to consumers such as total cost of the product and any aspect of its performance, efficacy, or other primary characteristics.
Finally, the order imposes a $100,000 civil penalty against the defendants and requires them to pay $1,071,254.33 to the United States, equal to Razer’s revenue from the masks, which the FTC expects to use to provide refunds to defrauded consumers. This amount will allow the FTC to provide full refunds to consumers who purchased the deceptively marketed products.
The Commission vote approving the complaint and proposed order was 3-0. It was filed by DOJ in the U.S. District Court for the Central District of California. The proposed order settles the FTC case against: 1) Razer, Inc.; 2) Razer (Asia-Pacific) Pte., Ltd.; 3) Razer USA, Ltd.; 4) Razer Health Pte., Ltd.; and 5) Razer Online Pte., Ltd.
The staff attorneys on this case are Vikram Jagadish and Jordan Navarrette of the FTC’s Northeast Region.
NOTE: The Commission files a complaint when it has “reason to believe” that the named defendants are violating or are about to violate the law and it appears to the Commission that a proceeding is in the public interest. Stipulated final injunctions/orders have the force of law when approved and signed by the District Court judge.