FTC and NY claim of deceptive supplement advertising gets new life

Courts Second Circuit Appellate FTC Act FTC

On February 21, the U.S. Court of Appeals for the 2nd Circuit issued a summary order reversing the lower court’s dismissal of an FTC and New York State action, which alleges a biotechnology group’s (defendants) marketing campaign for a dietary supplement was deceptive under the FTC Act. According to the opinion, defendants claimed in advertising and marketing materials that a suite of dietary supplements (i) improve memory and provide other cognitive benefits; (ii) the effects are clinically proven; and (iii) have an active ingredient that “supplements” brain proteins. The FTC and New York State brought an action alleging deceptive marketing in violation of the FTC Act because the defendants study of the supplements showed “no statistically significant improvement in the memory and cognition of the participants,” and the few positive findings did not “provide reliable evidence of a treatment effect.” The lower court dismissed the action, finding the challenge to the study “never proceed[ed] beyond the theoretical” as the complaint only showed there were “possibilities that the study’s results do not support its conclusion.”

On appeal, the 2nd Circuit found the complaint adequately alleges that the results of the study contradict representations made in the marketing materials, such as, the supplement “improved memory for most subjects within 90 days,” and concluded the lower court erred in dismissing the action.