Prevagen is located at eye level, between the multivitamins and the fish oil, in practically every CVS in the United States. The box has a warm, almost grandparental appearance and is purple. The cost is not. Depending on the strength, a bottle might cost as much as sixty or seventy dollars. For many years, the pitch on daytime television was simple: a few decades of graphics that looked medical, a soothing narration, and the statement “clinically shown to improve memory” that was so subtle that no one bothered to clarify what it meant. It turns out that the class action was sustained precisely because of that term.
Quincy Bioscience’s attorneys used a well-known strategy to try to get the consumer lawsuits and the regulatory objections dismissed. They contended that the assertions were exaggerated. They contended that the science was difficult. Customers should have known better, they contended. It didn’t work at all, and the reason why is nearly elegant in its simplicity. The marketing for Prevagen wasn’t ambiguous. It made a quantifiable commitment to increase memory within ninety days, and once you make a quantifiable commitment, courts can assess whether you fulfilled it.
The Madison Memory Study turned become the focal point of the case. The study was conducted by Quincy’s own researchers and was intended to prove the claims made in the advertisements. Regulators’ analysis of the data revealed a different picture than what the advertisements had claimed. The study’s primary endpoints, which the business had set up, did not show statistically significant improvement above placebo. After dividing the data into smaller groups, Quincy discovered what appeared to be a favorable outcome and created a marketing empire around it. In supplement science, that kind of thing frequently occurs. Seldom does it make it through an FTC review.
This case has an almost antiquated quality. The Prevagen lawsuit proceeded through the courts in the same manner as similar cases used to: slowly and resolutely, with regulators and private litigants supporting one another. In a time when the majority of consumer fraud claims are entangled in arbitration clauses or class-action waivers hidden in fine text. Specifically, the Beatty lawsuit did a thorough job of identifying which corporate entity made the allegation, when, and through which channel. That’s not glamorous work, but when the defense team is patient and well-funded, it’s the kind of effort that gets you past a motion to dismiss.
It’s difficult not to feel sorry for the customers in this narrative. The target audience was virtually invariably older Americans who watched cable news in the afternoons and were genuinely concerned about their own or their parents’ forgetfulness. If the science is true, sixty dollars for hope isn’t a ridiculous deal. The problem with Prevagen is that while the science wasn’t nearly there, the marketing continued to proceed as though it was.
Although it is likely not the end of the story, the final result—a permanent injunction prohibiting Quincy from marketing Prevagen as a memory or cognitive enhancing product—is a significant victory for consumer protection law. Quincy has filed appeals in the past and is probably going to continue marketing the product in whatever area the courts leave open. The supplement industry is massive, has very little regulation, and is adept at changing its wording. But because the message is so clean, this case will be quoted for years to come. If you make a particular accusation, someone will finally investigate it.
