Pharmacy giants CVS and Walmart will face lawsuits over claims that placing ineffective homeopathic products next to legitimate over-the-counter drugs on store shelves misleads consumers into thinking the pseudoscientific products are akin to evidence-based, Food and Drug Administration-approved drugs. medicines .
The claims come from the nonprofit Center for Inquiry (CFI), which filed nearly identical lawsuits against CVS and Walmart in 2018 and 2019, respectively, to try to get homeopathic products off pharmacy aisles for good. CFI claimed that misleading placement of the water-based products violated the District of Columbia Consumer Protection Procedures Act (CPPA).
Two lower courts initially dismissed the lawsuits. But in a unanimous ruling last week, a panel of three judges for the District of Columbia’s highest court overturned the dismissals in a consolidated appeal, allowing the trials to continue.
CFI may need more evidence to win at trial, senior judge Phyllis Thompson wrote on behalf of the panel. “But at this point we can’t say that a reasonable consumer is unlikely to understand” [CVS and Walgreen’s] placement of homeopathic products next to science-based medicines as a representation that the homeopathic products are effective or are equivalent alternatives to the FDA-approved over-the-counter medicines next to those they are displayed.”
Dangerous Dilutions
As longtime readers of Ars know, homeopathy is an exposed pseudoscience dealing with toxic substances that are meant to be forgotten. The practice rests on two nonsensical concepts: that a poisonous substance that causes the same symptoms as a disease can be used to cure that disease (like cures like); and that the therapeutic potency of a substance increases with more and more ritual dilution, even far beyond the point where not a single atom of the precursor remains (the law of infinitesimal quantities). Some homeopaths even believe that water molecules can have a “memory” of substances.
At best, homeopathic products are aqueous placebos. At worst, they are poorly diluted poisonous potions. The latter is not just hypothetical. In 2017, the FDA confirmed elevated levels of the toxic substance belladonna (deadly nightshade) in homeopathic teething products intended for infants. The FDA’s findings followed reports of 10 infant deaths and more than 400 illnesses associated with the products.
CFIA
As such, consumer and advocacy groups such as the CFI have long opposed the sale of homeopathic products. And the CFI doesn’t mince words. “Homeopathy is bunk,” the organization wrote of its lawsuit against Walmart. “All the evidence shows it doesn’t work at any level above that of a placebo. And it can’t work unless every understanding of the science we have is wrong.” But when placed in pharmacy aisles alongside legitimate drugs, such as those at Walmart and CVS, they are “sold to an unsuspecting public as a cure for everything from earaches to asthma.”
In the two lower DC courts, allegations that the placement of the products in stores could mislead consumers about their efficacy caused the judges a pause. The judges argued that the placement on the shelves of real drugs “did not constitute a useful ‘representation’ of efficacy” of violating the CPPA.
But the appeals court judges disagreed. They noted that in the past, courts have determined that such non-verbal cues and images can indeed be considered misleading to consumers. For example, they pointed to a 2017 case where obsolete motor oils were sold on the same shelf as non-aged motor oils. When the defendants tried to drop the case for “failure to name an identifiable deceptive practice,” the federal court dismissed the motion, suggesting that it viewed the product placement as a potentially deceptive practice. That was even despite the fact that the obsolete motor oils carried a warning on their back label that the oil is “not suitable for use in most gasoline-powered automotive engines built after 1988.”
