The Federal Trade Commission (“FTC”) and the New York Attorney General (“NYAG”) have jointly filed a deceptive advertising lawsuit against the marketers of a dietary supplement. The lawsuit claims that the marketers of the dietary supplement, Prevagen, made false and unsubstantiated claims regarding the product’s ability to improve memory and provide additional cognitive benefits.

What is the nature of the claims against the marketer?

The FTC and NYAG allege that the dietary supplement marketer violated both the prohibitions against deceptive advertising in both the FTC Act and New York’s General Business Law, through the following:

  • Claiming that the product improves memory, reduces memory problems associated with aging and provides additional cognitive benefits such as healthy brain function and clear thinking; and
  • Claiming that each of the aforementioned alleged benefits of the product were clinically proven when in fact the sole clinical study conducted failed to show a statistically significant improvement in cognitive performance from the supplement as compared with a placebo.

The regulators claim that the marketer specifically targeted vulnerable consumers, particularly seniors, through an extensive advertising campaign that included television advertisements and various Internet-based advertising campaigns. The lawsuit seeks the disgorgement of upwards of $165 million in product sales and consumer restitution for sales of bottles that ranged from $24 to $68 per bottle.

Protect Yourself from A Deceptive Advertising Lawsuit

As we have previously blogged, federal authorities and state attorneys general alike have been active in investigating and prosecuting companies for deceptive advertising practices. This case reinforces the notion that businesses should be vigilant in gathering verifiable, scientific evidence to substantiate their health benefit claims. With specific regard to memory improvement marketing claims, prior to launching such a campaign, the best advice is to: 1) secure two double-blind independent clinical studies that substantiate any and all memory improvement claims; and 2) make sure that the entire campaign is vetted by knowledgeable advertising counsel.