Last month, the District of Columbia’s highest court allowed two lawsuits to move forward, despite previous rulings to squash them from lower courts. The first lawsuit, filed by the Center for Inquiry (CFI), alleges that Walmart and CVS Pharmacy are misleading customers by placing homeopathic remedies next to FDA-approved medication on the shelves and online. CFI claims the consumer giants are violating D.C.’s Consumer Protection Procedures Act by suggesting that both homeopathic products and scientifically proven medication are equally effective.
D.C. Court of Appeals Senior Judge Phyllis D. Thompson wrote the court’s unanimous opinion that the placement of products on a store shelf does convey information to consumers about the products. Depending on the type of product, this type of information can sometimes sway consumers into making a purchase based on false or unproven implications.
“The Court of Appeals rightly recognized that giant retailers can’t just deny responsibility for how they present what are fundamentally worthless products,” said CFI Legal Director Nick Little in a statement after the decision. “It’s a huge victory for consumers and their right not to be misled.”
He also acknowledged that while this decision is positive, the case is a long way from being heard by a jury.
How the FDA Handles Homeopathic products
Homeopathy is an alternative health practice developed in the late 1700s. Generally, homeopathic products are identified through practitioner-led studies called “provings,” in which various substances are given to healthy volunteers in high enough concentrations to cause symptoms. If that substance causes a particular symptom, those experiencing the symptom are treated with a diluted version of the substance. Homeopathy uses the principle of “like cures like” as a cornerstone of its practice.
The FDA does not evaluate any homeopathic products for effectiveness or safety, and consumers use them at their own risk. Homeopathic products are regularly marketed as safe, natural and effective alternatives to conventional FDA-approved products. They can include a range of different ingredients, including minerals, chemicals, plants, and substances from diseased and/or healthy animals. The FDA has not reviewed or approved these remedies to diagnose, treat, cure, reduce or prevent any disease or disorder.
The FDA and other organizations, including CFI, are concerned about the use of homeopathic products. In fact, the FDA has tested products that were improperly manufactured, increasing the potential for incorrect dilutions and contamination. Under the Federal Food, Drug and Cosmetic Act, homeopathic remedies must meet the same requirements as other medications approved by the FDA. No current homeopathic product has succeeded.
CFI As a Consumer Protection Organization
The second lawsuit reinstated pertained to the CFI’s status as a consumer protection organization. While the lower courts originally ruled that CFI could not file claims in court on behalf of consumers because it is not a consumer protection organization, the D.C. Court of Appeals disagreed and allowed the litigation to proceed. According to its ruling, CFI’s efforts to bring down the pseudoscience industry qualify it as a consumer protection agency.
“DC’s highest court acknowledged what we’ve always known – CFI’s decades of work against pseudoscience like homeopathy is consumer protection work,” said Little.
As this lawsuit proceeds through the courts, analysis of placing homeopathic products next to FDA-approved medication is sure to continue. Strategically placed products can guide consumers and inform their purchasing decisions. As Walmart and CVS Pharmacy defend their merchandising decisions in court, other retailers may find themselves watching this case to see if they should reevaluate their own policies regarding product placement and consumer behavior.