The Center for Inquiry (CFI) recently filed suit against retail behemoth Walmart, alleging the company is committing widespread consumer fraud through the sale and marketing of worthless homeopathic remedies. According to the complaint, Walmart places both its own “Equate” brand and other homeopathic brands alongside science-based, FDA-approved over-the-counter (OTC) medicines on its pharmacy shelves, with no distinction drawn between them. Searches on the Walmart website for condition-specific remedies, such as for colds, flu, or cough, will turn up both homeopathic and science-based products. This, says CFI, falsely presents ineffective homeopathic products as equivalent alternatives to FDA-approved science-based medicines.
In a press release, CFI President Robyn Blumner said:
Despite being among the richest corporations on Earth and the largest retailer in the United States, Walmart chooses to further pad its massive wealth by tricking consumers into throwing their money away on sham medicinal products that are scientifically proven to be useless and potentially dangerous . . . We intend to put a stop to it.
Like a similar suit filed against pharmacy chain giant CVS last year (now in settlement discussions, which a recent court filing described as “productive”), CFI is suing Walmart under the District of Columbia’s Consumer Protections Procedures Act (CPPA), which “establishes an enforceable right to truthful information from merchants about consumer goods” without proof that any consumers were in fact mislead, deceived or damaged. In other words, in the District of Columbia’s view, lying to consumers is wrong and should be prevented, even without the added insult of actual harm. The CPPA permits nonprofit and consumer protection organizations like CFI to file suit on behalf of the public and seek, on its behalf, treble damages or, in lieu thereof, $1,500 per violation, as well as an injunction against further violations. D.C. is a tiny jurisdiction and any judgment in CFI’s favor would apply only to Walmart’s three retail stores located there. An injunction against fraudulent marketing on the company’s website would pack a bigger punch.
The complaint explains the ludicrous pseudoscience behind homeopathy’s claims of effectiveness: homeopathic remedies are massively diluted with water or other inert substances, often to the level where no molecules of the original substance remain in the final product, based on the notion that the greater the dilution, the greater the power of the remedy. CFI also explains the homeopathic concept of “like treats like”, that is, if something is shown to cause a symptom in an individual, the same substance can be used to treat the symptom. Thus, CFI says, homeopathy is pseudoscience, without “a shred of credible scientific evidence that it works, or indeed could possibly work”, citing U.S., Australian, and U.K. government research.
(None of this is news to SBM regulars; we’ve covered “the one quackery to rule them all” many times here on SBM, including my personal experience with just the type of deceptive marketing CFI describes in the complaint.)
As it did in the CVS complaint, CFI uses an often-mocked example of homeopathic nonsense as a tutorial on homeopathy: Oscillococcinum, “duck offal” diluted to a scientifically-impossible concoction of one part offal to 10400 parts water, a number that exceeds the estimated number of atoms in the known universe (1082 ). According to homeopaths, the complaint explains, the potency of the offal is preserved through “succussion,” or shaking the product and hitting it against an elastic surface, such as a leather-covered book. Homeopaths rationalize that, even without a single molecule of the original ingredient remaining, the water can “physically remember the chemical properties” of the duck offal, though not a single molecule of the offal remains.
Yet, the complaint notes, with photos of Walmart pharmacy shelves to prove the point, Oscillococcinum is displayed alongside FDA-approved OTC medicines like Tylenol Sinus & Headache, Alka Seltzer, and Mucinex. When “flu remedy” or “flu relief” is typed into the search box on Walmart’s website, Oscillococcinum returns as a front-page result. Thus,
Walmart is announcing that if a customer has flu-like symptoms, Tylenol Cold and Flu medicine, containing acetaminophen, a medicine tested and approved ty the FDA, is an equivalent solution to Oscilloccinum, which contains the organs of a Muscovy duck, diluted to the power of 10400.
CFI alleges that this and similar juxtapositions of homeopathic and science-based remedies causes confusion and falsely implies to the consumer that there is no difference between them.
In a news report on the lawsuit, a Walmart spokesperson said
We want to be the most trusted retailer, and we look to our suppliers to provide products that meet all applicable laws, including labeling laws. . . . Our Equate private label homeopathic products are designed to include information directly stating that the claims are not based on accepted medical evidence and have not been evaluated by the FDA.
The disclaimer is apparently based on the FTC’s 2016 Enforcement Policy Statement on the marketing of homeopathic remedies, explained in an agency press release:
the FTC will hold efficacy and safety claims for OTC homeopathic drugs to the same standard as other products making similar claims. That is, companies must have competent and reliable scientific evidence for health-related claims, including claims that a product can treat specific conditions.
Of course, as the FTC admits, homeopathic remedies can’t meet this standard:
For the vast majority of OTC homeopathic drugs, the policy statement notes, ‘the case for efficacy is based solely on traditional homeopathic theories and there are no valid studies using current scientific methods showing the product’s efficacy.’ As such, the marketing claims for these products are likely misleading, in violation of the FTC Act.
However, the FTC offers homeopathic remedy marketers an out:
the policy statement also notes that the FTC has long recognized that marketing claims may include additional explanatory information to prevent the claims from being misleading. Accordingly, it recognizes that an OTC homeopathic drug claim that is not substantiated by competent and reliable scientific evidence might not be deceptive if the advertisement or label where it appears effectively communicates that: 1) there is no scientific evidence that the product works; and 2) the product’s claims are based only on theories of homeopathy from the 1700s that are not accepted by most modern medical experts.
Most?
In other words, the FTC will permit homeopathic remedy makers to lie about the effectiveness of their products as long as they tell consumers they are lying.
But,
the FTC will carefully scrutinize the net impression of OTC homeopathic marketing claims and that if an ad conveys more substantiation than a marketer has, it will violate the FTC Act.
While Equate brand homeopathic remedies may comply with the FTC policy statement, I could not find any similar language on other brands sold by Walmart, either in the photos included as part of the complaint or the Walmart website.
In any event, the disclaimer may not matter. The legal basis of CFI’s lawsuit is not that Walmart’s homeopathic products don’t comply with federal labelling laws or are illegal (although they are; more on that in a moment). Rather, it says displaying pseudoscientific remedies alongside science-based medicines falsely implies an equivalency in effectiveness and that violates D.C.’s consumer protection law. While Walmart might try to use the disclaimer as evidence in this case that these displays are not confusing or misleading, I don’t think the court would be persuaded. Tiny print on a small package hardly overcomes the implication that products grouped together on pharmacy shelves under a sign saying, for example, “heartburn relief”, actually provide heartburn relief.
The FDA’s policy only recently switched from ignoring the Food, Drug & Cosmetics Act’s mandate that homeopathic remedies go through the same approval process as all other OTC and prescription drugs to a “risk-based” enforcement approach that tackles only the worst players in the homeopathic market, leaving the others free to foist their worthless products on consumers. As the FDA itself admitted,
many homeopathic products will likely fall outside the risk-based categories described in the [FDA’s draft] guidance [on homeopathic drugs] and remain available to consumers.
Yes, and consumers will continue to spend billions on worthless products that not only won’t help them, but may, through poor manufacturing practices or delay in effective medical care, cause serious illness or death. That is why lawsuits like CFI’s against CVS and Walmart are essential in the battle against healthcare pseudoscience. With the FDA and the FTC failing to protect consumers from products they admit are both ineffective and sold illegally, in violation of the FD&C Act, the courts are the consumer’s only refuge.
