Last week, CVS Pharmacy Inc. was hit with a potential class action lawsuit over claims that CVS uses misleading labeling on a DHA dietary supplement, saying it is “clinically shown to improve memory.”
Plaintiffs Jeffrey Worth and Robert Burns brought forth allegations against CVS, with the help of consumer advocacy group Center for Science in the Public Interest, saying that the claims on the label have been proven false. Both plaintiffs stated that they purchased the supplement because of the claims to improve memory but they found the supplement “did not perform as advertised.”
The supplement in question is CVS’ Algal-900 DHA which bases the label claims of memory improvement on a research study conducted by Martek Biosciences Corp. to promote its algae –based DHA (docosahexaenoic acid) supplement, according to the CVS class action lawsuit.
The CVS lawsuit further indicates that “The Federal Trade Commission has concluded that this study does not support claims that DHA improves memory, and has prohibited Martek from making memory claims based on this study. Still, CVS relies exclusively on this study for its claims that Algal-900 DHA improves memory.”
According to the FTC’s statement about the 2010 MIDAS study by Martek, “Whether analyzed separately or as a composite, the effect size of any statistically significant, between-group difference was trivial, and no evidence showed that any such difference correlated with improvement in episodic memory tasks outside the laboratory, such as the ability to remember the location of one’s sunglasses or why one entered a room.”
The CVS supplement class action lawsuit also notes that other “comprehensive, high-quality clinical studies have shown that omega-3 fatty acids, including DHA, work no better than a placebo in tests of adults’ cognitive performance.”
U.S. Food and Drug Administration regulations require manufacturers to include disclaimers on supplement labels saying the supplement is “not intended to diagnose, treat, cure or prevent any disease.” It also must state that any claims made about the supplement’s effects have not been evaluated by the FDA.
Plaintiff Jeffrey Worth of New York is seeking to represent a Class in his state, and plaintiff Robert Burns is looking to represent a Class in his home state of Florida. Together, they are also seeking to represent a nationwide consumer class. The New York Class would include residents who purchased Algal-900 for personal use since Feb, 1, 2010, and the Florida and nationwide Classes would cover consumers who made the purchase since Feb. 1, 2012.
Worth and Burns have brought forth a total of six counts against CVS including violations of New York Business Law, violation of the Florida Deceptive and Unfair Trade Practices Act, fraudulent misrepresentation, negligent misrepresentation and unjust enrichment.
On behalf of themselves and the classes they represent, Worth and Burns are seeking damages, disgorgement of profits and injunctive relief to stop CVS from continuing to make allegedly misleading claims on their Algal-900 product labels.
The plaintiffs are represented by Kats, Michael R. Reese of Reese LLP and Craig L. Briskin of Mehri & Skalet.
The CVS False Advertising Class Action Lawsuit is Worth et al. v. CVS Pharmacy Inc., Case No. 1:16-cv-00498, in the U.S. District Court for the Eastern District of New York.
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