INSIDER Law
Lawsuit: CVS Dietary Supplement Makes Unfounded Memory Claims

Lawsuit: CVS Dietary Supplement Makes Unfounded Memory Claims

At the heart of the proposed class-action case is whether the consumption of omega-3 fatty acids contained in CVS’s product is capable of bolstering one’s memory.

CVS Pharmacy Inc. was named Feb. 1 in a lawsuit that contends the retailer has engaged in unfair and deceptive practices through the marketing and sale of a dietary supplement known as Algal-900 DHA.

At the heart of the proposed class-action case is whether the consumption of omega-3 fatty acids contained in CVS’s product is capable of bolstering one’s memory.

The Algal-900 DHA product package features in capital letters, “CLINICALLY SHOWN MEMORY IMPROVEMENT." The package also touts the product as the “only DHA form & dosage clinically shown to improve memory."

CVS’s claims are false and misleading, according to the lawsuit.

“Comprehensive, high-quality acids, including DHA, work no better than a placebo in tests of adults’ cognitive performance," declared the 21-page complaint demanding a jury trial.

The lawsuit referenced a 2014 report published in the American Journal of Clinical Nutrition. In a review of 34 randomized, controlled trials of omega-3 fatty acids involving 12,999 subjects, researchers found the fatty acids “do not improve cognitive performance in children, adults or the elderly," the complaint noted.

In support of its claims, Woonsocket, Rhode Island-based CVS purportedly relied on a study whose main author was an employee of Martek Biosciences Corp. But FTC concluded the “MIDAS Study" was unreliable, and in a consent decree with the agency, Martek was prohibited from basing memory claims on the study, according to the complaint.

“Still," the lawsuit continued, “CVS relies exclusively on this study for its claims that Algal-900 DHA improves memory."

The complaint also alleged CVS failed to make the required disclaimer that the product “is not intended to diagnose, treat, cure, or prevent any disease."

FTC requires that companies making advertising claims substantiate them with competent and reliable scientific evidence. Justin Prochnow, a shareholder in Denver with the law firm Greenberg Traurig LLP and an expert on FTC regulations, cited a growing number of lawsuits that assert a lack of substantiation.

Consumers technically don’t have the right to file a lawsuit based on a company’s alleged failure to substantiate its advertising, Prochnow said in a phone interview. He pointed out substantiation-related complaints, such as the CVS lawsuit, allege false or misleading claims under state law.

CVS spokesman Mike DeAngelis declined to comment on the specific allegations in the complaint.

“Our store brands are designed to maximize quality and assure the products we offer are safe, work as intended, comply with regulations and satisfy customers," he said in an emailed statement.

Jeffrey Worth of Nassau County, New York and Robert Burns of Citrus County, Florida are the named plaintiffs who purchased Algal-900 DHA. They alleged the product did not work as advertised and are seeking injunctive relief and damages.

Maia Kats of the Center for Science in the Public Interest (CSPI) is among the lawyers representing the plaintiffs.

“CVS is relying on a discredited study, and one that the FTC has specifically prohibited from being used by another company in this context," Kats said in a Feb. 1 press release. “And CVS is ignoring a large body of clinical testing and research on omega-3s, DHA and memory that indicates no benefit whatsoever in adults."

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