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A lawsuit claiming pharmacy chain giant CVS fraudulently deceives consumers in the sale of worthless homeopathic remedies was filed in late June by the Center for Inquiry (CFI), acting on behalf of the general public. The suit seeks both damages and an injunction against CVS’s deceptive marketing practices in the Superior Court of the District of Columbia, alleging violations of the District’s consumer protection act.

In a press release, CFI’s president Robyn Blumner said that CFI had tried to discuss the situation with CVS:

but the concerns we raised were ignored . . . Homeopathy is a multi-billion dollar consumer fraud. If CVS would rather line its pockets than protect Americans’ heatlh, we have no choice but to take this fight to the courts.

The press release noted that, in addition to being a waste of money, using homeopathic products instead of evidence-based treatments can result in worsened or prolonged illness, and, in some cases, death. As well:

Several products have been found to contain poisonous ingredients which have affected tens of thousands of adults and children in just the last few years.

Nicholas Little, CFI’s Vice President and General Counsel, who represents CFI in the suit, charged that CVS can’t claim ignorance:

If the people in charge of the country’s largest pharmacy don’t know that homeopathy is bunk, they should be kept as far away from the American healthcare system as possible.

The suit is brought 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. Although any ruling in favor of consumers would apply only within the D.C.’s tiny jurisdiction, it could send a powerful message if CVS were required to pull homeopathic products from the shelves of its 60 D.C. pharmacies and disclaim, per a court order, any intent to sell homeopathic products to D.C. residents on its website.

The complaint alleges that CVS engages in fraudulent and deceptive marketing practices in retail and online sales of homeopathic products, including CVS’s house brand, by:

using marketing, labeling and product placement to falsely present homeopathic products as equivalent to effective science-based medicines for specific diseases and symptoms.

For example, according to the complaint, homeopathic products like Oscillococcinum and its claim that it “relieves flu-like symptoms such as body aches, headache, fever, chills and fatigue” are displayed on CVS’s shelves in the “cold and flu” section, indistinguishable from FDA-approved over-the-counter remedies like Tylenol Sinus & Headache. Likewise, on CVS’s website, Oscillococcinum Quick Dissolve Pellets is nested for sale under the category path Health and Medicine > Cough, Cold, & Flu > Flu Remedies, along with Tylenol Cold + Flu Caplets, although the consumer is offered the convenience of purchasing only Oscillococcinum online. For the Tylenol product, the consumer must visit a brick-and-mortar CVS pharmacy.

CFI uses Oscillococcinum as a tutorial for the court on the nonsense behind homeopathy, explaining that it consists of “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, even though not a single molecule of the offal remains.

I am all too familiar with CVS’s deceptive marketing tactics. Last year, I came close to buying a homeopathic dry eye product at CVS for my late mother, who was suffering from cancer. Fortunately, I caught my mistake and purchased instead an evidence-based eye remedy. But the mere possibility that she might have suffered due to using a worthless product led to both my writing a post about my experience and filing a complaint with three government agencies, none of which has taken any action. Judging from the comments of those who had similar experiences with the confusing co-mingling of real and fake medicine on retail shelves, I am not alone.

The complaint correctly characterizes homeopathy as “pseudoscience” without “a shred of credible scientific evidence that it works” or “could possibly work” and as “no more accepted by the scientific community than the notion of a flat Earth.” These allegations are supported by citations to, among others:

Thus, the complaint alleges, in marketing homeopathic products as effective treatments for specific conditions, in creating the impression that homeopathic remedies can be used interchangeably with science-based medicines, and in failing to tell consumers there is no scientific evidence that homeopathic products are beneficial for these conditions, CVS has violated the D.C.’s Consumer Protections Procedures Act.

CVS responds

Per the court’s rules, CVS must file a response and “admit or deny the allegations asserted against it” by CFI. (It may file a motion that delays its duty to respond, and the court could possibly grant a motion to dismiss the case prior to CVS’s filing its answer, but the latter seems unlikely.) Denial of any factual contentions made by CFI must be “warranted on the evidence” or “reasonably based on belief or a lack of information.” Given the overwhelming scientific consensus that homeopathy is not, and cannot be, beneficial for anything, it will be interesting to see how CVS responds to the complaint’s specific allegations of homeopathy’s pseudoscientific principles and its demonstrable lack of effectiveness. And it will be interesting to see how CVS mounts a defense to the Consumer Protections Procedures Act’s prohibitions against:

  • Representing that products have characteristics that they do not have;
  • Representing that products are of a particular standard or quality when they are in fact of a different standard or quality;
  • Misrepresentation of a material fact which has a tendency to mislead;
  • Failing to state a material fact if that failure tends to mislead;
  • Using innuendo or ambiguity as to a material fact, which has a tendency to mislead.

Barring the use of a legal defense like preemption (see below), or the successful introduction of junk science as evidence, it’s hard to see how CVS can prevail on the merits. Then again, homeopathic remedies have been sitting on the shelves of American pharmacies and other retailers for decades despite their obvious ineffectiveness and scientific implausibility, defying (admittedly tepid) government regulation and numerous lawsuits.

While an answer to the complaint is not yet due in court, CVS responded to the suit in MD Magazine by saying:

‘We believe the Center for Inquiry’s civil complaint against CVS Pharmacy has no merit. We offer certain homeopathic products in compliance with federal law and applicable regulations set forth by the FDA and the FTC,’ Mike DeAngelis, CVS Health’s senior director of corporate communications, told MD Magazine. ‘CVS is committed to assuring that the products we offer are safe, work as intended, comply with regulations and satisfy customers. In the event of a regulatory issue concerning any product we sell, we take appropriate action.’

Actually, if CVS were committed to assuring that the products it sells are safe and work as intended, it wouldn’t be selling homeopathic remedies.

CVS’s statement possibly foreshadows the defendant’s claiming that the District of Columbia’s consumer protection act is preempted by federal law, specifically the Food, Drug, and Cosmetics Act of 1938 and the Federal Trade Commission Act of 1914. This defense has not always succeeded in suits against homeopathic product manufacturers, a federal district court judge having found that the FDA has largely abdicated any role in creating standards for homeopathic OTC drugs, a situation that, sadly, has not changed. Even if the FDA were to finally adopt its proposed “risk-based” enforcement of the FD&C Act against homeopathic remedies, the FDA has frankly admitted that many homeopathic products would escape enforcement action despite the agency’s tacit admission that, since no homeopathic remedy on the market today has been approved in accordance with the FD&C Act, each and every one of them is being marketed in violation of federal law.

CVS’s statement also takes a page from the tobacco industry’s playbook – “all we are doing is selling a “legal product:”

Gareth Davies, Chief Executive of [the U.K.’s] Imperial Tobacco, says [in 1997] of Labour’s proposed advertising ban: ‘Obviously I am very much against anything that tries to reduce consumption of a legal product that is used by adults …an advertising ban will do nothing to reduce consumption.’

And this from Brown and Williamson’s ad agency, in 1969:

We will continue to bring to the American people the story of the cigarette and any other legal product based upon truth and taste. We believe that free speech and fair play are both the heritage and promise in our society of free and responsible enterprise.

But as CFI’s General Counsel told Gizmodo:

The argument isn’t that they’re illegal, it’s about how they’re marketing and selling these products . . .

Of course, homeopathic remedies should be illegal, or, at the very least, the FDA should make them to undergo the safety and effectiveness evaluation required by the FD & C Act, a mandate that the FDA continues to ignore. Until that happens, I am grateful for CFI’s suit seeking consumer protection against the sale of fraudulent products by CVS and fully support their efforts. In preparing this post, I was brought to tears by the memory of my near-failure to help alleviate the suffering of my late mother, directly attributable to confusion brought on by CVS’s deceptive product placement. Since this and many similar incidents don’t seem to bother CVS, perhaps treble damages and an injunction will change its corporate mind.

UPDATE: To explain the problems with homeopathy and why CFI is suing CVS, CFI has put up a dedicated website at centerforinquiry.org/cvs.

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Posted by Jann Bellamy

Jann J. Bellamy is a Florida attorney and lives in Tallahassee. She is one of the founders and Board members of the Society for Science-Based Medicine (SfSBM) dedicated to providing accurate information about CAM and advocating for state and federal laws that incorporate a science-based standard for all health care practitioners. She tracks state and federal bills that would allow pseudoscience in health care for the SfSBM website.  Her posts are archived here.