CVS sued over false and misleading claim that its Algal-900 supplement improves memory

The nonprofit Center for Science in the Public Interest, which filed the class action complaint with two law firms, says that high-quality clinical studies have shown that omega-3 fatty acids, including DHA, work no better than a placebo at improving cognitive function.

Packaging for Algal-900 DHA prominently states that the product provides “clinically shown memory improvement,” and that it is “the only DHA form & dosage clinically shown to improve memory.” On the back of the label, CVS states that in a clinical study daily supplementation with 900 milligrams of algal DHA resulted in a 50 percent reduction in errors in an episodic memory test, and that the algal DHA group’s “memory improved like it was 7 years younger versus the placebo group.” That study, known as the MIDAS study, was funded and conducted by Martek Biosciences Corporation for the purposes of promoting its own algae-based DHA supplement. But the FTC determined that the study does “not reveal any improvement in working memory” and banned Martek from basing any memory claims on it.

“CVS cites no scientific evidence that supports the outlandish memory claims used to market Algal-900 DHA supplements,” said CSPI litigation director Maia Kats. “CVS is relying on a discredited study, and one that the FTC has specifically prohibited from being used by another company in this context. And CVS is ignoring a large body of clinical testing and research on omega-3s, DHA and memory that indicates no benefit whatsoever in adults.”

A 2014 meta-analysis published in the American Journal of Clinical Nutrition looked at 34 studies involving 12,999 participants and concluded that consuming omega-3 fatty acids does not “promote cognitive function in terms of composite memory, executive function, and processing speed domains,” and does not improve “cognitive performance in terms of recognition, immediate and delayed word recall, digit span backward and forward tests, rapid visual information processing, verbal fluency, and simple and choice reaction times.” (The study did find benefit for infants.) A 2015 study published by researchers at the National Institutes of Health’s National Eye Institute similarly concluded that the tested dose of DHA did not affect adults’ cognitive functioning and memory.

CVS is also violating Food and Drug Administration regulations that require certain disclaimers on supplements, according to the complaint. Labeling for such products must state they are “not intended to diagnose, treat, cure, or prevent any disease,” and that the claims about the supplements’ effect on the structure or function of the body have not been evaluated by the FDA. Such disclaimers must appear on each panel that makes such a claim, but CVS illegally omits it from the front of the Algal-900 DHA package, and renders it almost illegible on the back panel.

“CVS is knowingly exploiting the fears of consumers, many elderly, who may have legitimate concerns about their memory or cognitive function, which makes these illegal claims especially concerning,” said Kats.

The suit was filed in United States Court for the Eastern District of New York. Besides CSPI, the prospective class will be represented by Michael R. Reese of Reese LLP and Steven A. Skalet and Craig L. Briskin of Mehri & Skalet, PLLC.