Summary of Action

Prompted by a investigation and complaint, the Federal Trade Commission, together with the New York Attorney General, filed a lawsuit in January 2017 in the Southern District of New York against Quincy Bioscience for its deceptive marketing of the brain supplement Prevagen.  Specifically, the FTC and NY Attorney General alleged that Quincy Bioscience deceptively markets Prevagen as able to improve memory without having competent and reliable scientific evidence to support its claim.

In September 2017, the District Court dismissed the lawsuit incorrectly determining that Quincy Bioscience had sufficient substantiation for its memory improvement claims, deciding that post hoc analyses — separate retrospective analyses performed after a study has concluded to try to find patterns that were not primary objectives of the study — are sufficient to substantiate health claims, and that study results are not required.

The FTC and NY Attorney General appealed this decision to the Second Circuit, and, along with AARP, AARP Foundation, National Consumers League, and Advertising Law Academics, filed an amici brief in support of the FTC and NY Attorney General’s appeal.

In their brief, and its co-amici argued that (1) post hoc analyses are not the same as — and cannot take the place of — study results, which, in this case, revealed that Prevagen has no statistically significant impact on memory, and (2) even if we assume, for the sake of argument, that post hoc analyses carry the same weight as study results and are thus reliable, the narrow “results” — i.e., that Prevagen improved performance on a subset of memory tasks only in individuals with either minimal or no cognitive impairment — do not support the broad, unqualified marketing claims at issue. To read’s brief, click here.

On February 21, 2019, the Second Circuit Court of Appeals agreed with the FTC, NY Attorney General, and its co-amici and vacated the District Court’s judgment and remanded the case for further proceedings.

The case remains pending.  Check back for updates.

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