Court Holds Walmart, CVS Cannot Escape Homeopathy Product Placement Lawsuit

The District of Columbia (DC) Court of Appeals has reversed 2 lower court decisions and held that CVS and Walmart must stand trial on claims that the chains mislead consumers by placing unproven homeopathic products alongside FDA-approved over-the-counter remedies in the pharmacy area of their stores and websites.

The lawsuits, one against CVS and one against Walmart, filed by the Center for Inquiry (CFI), were consolidated for the appeal. CFI is a science-based nonprofit whose “mission is to foster a secular society based upon science, reason, freedom of inquiry, and humanist values.” CFI alleged in the complaints that homeopathy is a pseudoscience and the pharmacy chains have violated DC’s Consumer Protection Procedures Act by falsely presenting homeopathic products as equivalent alternatives to “science-based” medicine via in-store and online product placement and aisle signage (eg, “cough, cold, and flu relief”).

Initially, both lawsuits were dismissed by lower courts based on a finding that CFI lacked standing to bring the suit and failed to state a proper claim. On appeal, the DC Court of Appeals reversed the lower courts’ decisions and remanded the case back to trial court.

In looking at the case, first the Court of Appeals found that CFI had standing to sue because part of its core mission is to oppose pseudoscience. Next, the Court looked at whether CFI had properly stated a claim—the Court held that as a matter of law, the placement of a product can be a “representation” of what that product claims to do. It is up to a jury, noted the Court, to determine whether product placement would mislead reasonable consumers.

“At this juncture,” wrote the Court in the opinion, “we cannot say that it is implausible that a reasonable consumer might understand appellees’ placement of homeopathic products alongside science-based medicines as a representation that the homeopathic products are efficacious or are equivalent alternatives to the FDA-approved over-the-counter drugs alongside which they are displayed.”