CVS Supplement Deceptively Capitalizes On Proximity To AREDS-Formula Product – Complaint
This article was originally published in The Tan Sheet
Executive Summary
CVS supplement Advanced Eye Health deceives consumers by piggy-backing off NIH study findings of a Bausch + Lomb formula found to reduce eye disease progression, says a complaint seeking class action status in California state court.
Private label nutritional supplements stocked next to branded products on store shelves could be capitalizing on the brands’ popularity without matching their formulations, according to litigation filed against CVS Health Corp.’sAdvanced Eye Health.
CVS falsely links its store-brand supplement to a prominent National Institutes of Health’s 2013 Age Related Eye Disease Study and deceives consumers with on-shelf positioning near a branded product containing the formula from the research on slowing the progression of AMD and severe vision loss over a six-year period, the complaint filed Jan. 13 in California state court in Marin County alleges.
Attorneys from the Dallas and San Diego offices of Stanley Law Group seek class action status for the complaint, alleging the retailer engaged in a “widespread marketing campaign to deceive plaintiffs and other consumers about the nature, composition, and nutrition and health benefits of their supplement” in order to make the product more desirable to consumers, increase sales and gain market share.
Two California consumers who purchased the supplement argue in the complaint that CVS tried to capitalize on Bausch + Lomb’s PreserVision AREDS 2 formula from the NIH study.
The complaint notes the CVS supplement packaging states the product is “comparable to” the formula used in AREDS 2 research, and the retailer stocks the product on shelves next to Bausch + Lomb's PreserVision AREDS 2 product. Side-by-side on-shelf positioning used in some CVS stores, they argue, represents to consumers that CVS’ Advanced Eye Health supplement “is simply a generic, but identical version of Bausch + Lomb PreserVision supplement.”
The packaging and positioning are intended to divert consumers from realizing that “a material difference exists between the Bausch + Lomb PreserVision supplement and the Advanced Eye Health supplement,” according to the complaint.
The consumers seek a jury trial and a court order that will grant relief to them and all California consumers who purchased the CVS product at any time four years prior to the complaint. They also ask the court for injunctive relief enjoining Woonsocket, R.I.-based CVS from continuing the contested practices.
The complaint comes soon after researchers reported that seven in 10 eye supplement brands making claims associated with either the initial AREDS or AREDS 2 contained different formulations. The NIH studies were funded by Bausch + Lomb, now owned by Valeant Pharmaceuticals International Inc. (Also see "Vision Health Supplements Blurry On AREDS Formulation – Study" - Pink Sheet, 22 Dec, 2014.).
The Center for Science in the Public Interest on Jan. 14 said CVS' marketing of the product is “blatantly cheating older consumers who may fear developing age-related macular degeneration.”
CSPI is not aware of other pending suits targeting supplements claiming AREDS formulation, staff attorney Amanda Howell said in an email.
While other brands also attempt to ride the coattails of the Bausch + Lomb formula, Howell added that the CVS product may stand out because it is “especially egregious” as it contains only one of the effective ingredients in the AREDS 2 formula. The complaint and pending suit “will get the attention of other companies committing similar consumer deception,” she said.
“It's also worse than other deceptive AREDS supplements because consumers are more likely to see the CVS product, and because CVS is able to shelve its product next to the only product that does contain the AREDS 2 formula.”
Other companies, meanwhile, “should reevaluate claims that their products are based on an AREDS formula or provide the benefits of an AREDS formula if their products don't in fact contain the exact formula found effective in AREDS or AREDS 2,” Howell said.
The results of AREDS 2 built upon the original NIH-sponsored AREDS study, which found that Bausch + Lomb's OcuVite PreserVision formula – now marketed as PreserVision Eye Vitamin and Mineral Supplement – could reduce the risk of worsening age-related AMD and severe vision loss by 25% (Also see "Bausch & Lomb OcuVite Line Extension Used In Natl. Eye Institute Study" - Pink Sheet, 15 Oct, 2001.).
AMD Cases Growing
The number of people potentially affected by CVS’ marketing of Advanced Eye Health and eligible for inclusion in a class action could be significant, the Stanley Law attorneys suggest. In 2004, about 10 million people in the U.S. had either intermediate AMD or advanced AMD, and scientists expect that figure to double in the next 20 years, the complaint notes.
Moreover, the packaging deception is made worse because most consumers with AMD or advanced AMD are over 60 and could find it more difficult than other consumers to read and ascertain benefits from the packaging, the complaint suggests.
The Bausch + Lomb and CVS products both reference prominently the AREDS 2 study, which was the source of the formulation for B&L’s product with a combination of lutein, zeaxanthin, eicosapentaenoic and docosahexaenoic fatty acids, vitamins C and E, zinc and copper. The original AREDS study looked at a formula of vitamins C and E, beta-carotene, zinc and copper, while the follow-up study offered lutein and zeaxanthin as an alternative to the beta-carotene in the original formula.
CVS' formula, while containing carotenoids lutein and zeaxanthin, does not have vitamins C or E, zinc or copper. “It contains only ingredients that NIH found might be a good substitute for beta-carotene (lutein and zeaxanthin) and ingredients NIH found were completely ineffective at reducing the risk of developing advanced AMD (DHA and EPA),” notes the complaint.
The complaint also argues that CVS prices the supplement so consumers think it is significantly less expensive than PreserVision, but the CVS product has half the pills – 60 – as the competitor product.
CVS violates California Health and Safety codes because it represents that Advanced Eye Health can be used in the diagnosis, cure, mitigation, treatment for prevention of AMD, according to the plaintiffs.