Class Action Seeking to Block Homeopathic Sales at CVS Heads to Federal Court

On Tuesday a case was removed from California state court to the Northern District of California. The case was filed by Joyce Benton, Melissa Greco, Anthony Swetala, and Ralph Milan on behalf of a class action against CVS Health Corporation and CVS Pharmacy Inc. The lawsuit seeks to block CVS from the sale of homeopathic products that are labelled as drugs.

The complaint explained that homeopathy is an alternative medical practice based  on a theory that an exposure to a small amount of a substance that causes symptoms in a healthy person can be used in diluted form to treat symptoms and illness. The plaintiffs note that there has been little to no scientific trials regarding the efficacy of these treatments and that many of the claims are considered implausible by the greater medical community.

These products, per the complaint, are specifically included in the Food, Drug and Cosmetic Act’s Section 301. According to the filing, “A nonprescription (i.e., OTC) drug is misbranded if it has not been approved by FDA as being safe and effective, or if it does not comply with any of the previously approved monographs for OTC drugs.  21 U.S.C. § 352(ee). 14  An OTC monograph is a rule book for each therapeutic category establishing conditions, such as active ingredients, uses (indications), doses, labeling, and testing, under which an OTC drug is generally recognized as safe and effective (“GRAS/E”) and can be marketed without a new drug application (“NDA”) and FDA pre-market approval.”

The plaintiffs accuse the defendants of selling homeopathic compounds that are labeled as being drugs (and not as nutritional supplements). The compounds are also labeled as being for the treatment of conditions such as skin tags. The plaintiff holds that the labeling and choice to sell in the pharmacy department encourages consumers to think the product meets efficacy and use circumstances as regular medications and can cause consumers to chose a homeopathic compound instead of a medication.

Plaintiffs are suing for unfair competition and unlawful business practices under Cal. Bus. & Prof. Code §§ 17200, et seq. and seeks an injunction to prevent further sale of homeopathic compounds as currently labeled and marketed. Plaintiffs are represented by Vozzolo LLC.  Defendants are represented by Norton Rose Fulbright.