Filed on Dec. 6, the court order responds to a request submitted by Quincy Bioscience for clarification of a Nov. 18 judgement that the makers of Prevagen violated New York State Law and the Federal Trade Commission Act which forbids false advertising and unfair or deceptive acts or practices.
Pending questions were related to the scope of the action to be taken since only two of the eight unsupported claims regarding memory and cognition were alleged to be materially misleading. In addition, the plaintiffs separately moved to amend the judgment to pursue statutory penalties, disgorgement and statutory costs.
“The Court affirms its Judgment and clarifies that its injunction forbidding defendants from using the eight marketing statements (the “Challenged Statements”) in connection with the promotion of Prevagen takes effect forthwith and applies nationally wherever Prevagen is marketed,” the order clarified.
“The jury found the claimed scientific support for all the Challenged Statements was lacking, although only two statements were materially misleading under N.Y. Gen. Bus. Law §§ 349 and 350, and each of the Challenged Statements had a tendency to deceive under N.Y. Exec. Law § 63 (12).”
While the Court affirmed the nationwide injunction, it denied the New York Attorney General’s pursuit of penalties and costs, determining that “Quincy’s loss of the use of all eight Challenged Statements in its marketing and public relations, at a single blow, is not a trivial event.”
The seven-year suit
The protracted litigation dates to 2017 when the Federal Trade Commission and the New York Attorney General first filed suit against Quincy Bioscience in the U.S. District Court of the Southern District of New York, charging the company with making false and unsubstantiated claims.
The complaint alleged that the marketers relied on a study that failed to show that Prevagen with its active jellyfish protein ingredient performs better than a placebo on any measure of cognitive function. It also noted that sales of the widely available and advertised product had exceeded $165 million since its launch in 2013.
While the case was initially dismissed, it was reversed on appeal, and it was not until earlier this year that a jury reached a decision determining that not only were none of the challenged memory-improvement claims supported by competent and reliable scientific evidence but two of the claims related to aging were “materially misleading”.
“Following seven years of hard-fought litigation, including a jury trial, we are pleased that the Court has ordered Quincy Bioscience to cease making claims about Prevagen that mislead Americans concerned about memory loss,” Samuel Levine, director of the Federal Trade Commission’s Bureau of Consumer Protection, said in statement. “Companies should take note and remember that health claims need to be backed up by reliable scientific evidence.”
Moving forward
Responding to the FTC release on the ruling, Quincy Bioscience noted that the statement did not refer to the portion of the Judge’s order that reconfirmed the jury’s findings that the principal claims for Prevagen are not materially misleading.
It also noted that the FTC neglected to refer to the judge’s findings that there was “no intent to harm” or his rejection of the attorney general’s efforts to obtain statutory penalties, disgorgement and/or statutory costs.
“The order merely requires certain changes to Quincy’s advertising on a going forward basis,” the company stated. “While we strongly believe this requirement is based on a misreading of the law and science supporting the advertising statements, and will appeal the Judge’s decision, Quincy has already started to transition its marketing campaign for Prevagen.”
Commenting on the court order, the nonprofit Truth in Advertising (TINA) noted that Quincy’s marketing changes have been “wide-ranging and quick”—wiping memory-improvement claims from product packaging, the Prevagen website, Amazon listings and TV ads and pivoting to “brain support” promotion.
TINA initiated an investigation into Prevagen’s marketing in 2015, leading to the filing of a complaint with the FTC that urged the commission to take action.
“Prevagen’s days of deceiving and exploiting seniors worried about memory loss and cognitive impairment have finally come to an end,” said Bonnie Patten, executive director at TINA.org. “This should serve as a warning to all supplement companies using deceptive marketing to lure in susceptible consumers.”
Prevagen's eight challenged statements
• “Prevagen improves memory.”
• “Prevagen is clinically shown to improve memory.”
• “Prevagen improves memory within 90 days.”
• “Prevagen is clinically shown to improve memory within 90 days.”
• “Prevagen provides other cognitive benefits, including but not limited to healthy brain function, a sharper mind and clearer thinking.”
• “Prevagen is clinically shown to provide other cognitive benefits, including but not limited to healthy brain function, a sharper mind and clearer thinking.”
• “Prevagen reduces memory problems associated with aging.” (Materially misleading)
• “Prevagen is clinically shown to reduce memory problems associated with aging.” (Materially misleading)
