Walmart, CVS face trial for putting sham homeopathic products next to real meds

Pharmacy giants will have to face trials over claims that placing ineffective homeopathic products alongside legitimate over-the-counter medicines on store shelves deceives consumers into thinking that the pseudoscientific products are akin to evidence based, Food and Drug Administration approved drugs.

The claims come from the nonprofit organization Center for Inquiry (CFI), which filed nearly identical lawsuits against CVS and Walmart in 2018 and 2019, respectively, to try to boot homeopathic products from pharmacy aisles for good. CFI claimed that deceptive placement of the water-based products violated the District of Columbia Consumer Protection Procedures Act (CPPA).

The lawsuits were dismissed by two courts. A panel of three judges for the District of Columbia's highest court overturned the dismissals in a consolidated appeal last week.

Senior Judge Thompson wrote on behalf of the panel that there may be more evidence needed to win the trial. We can't say that it's impossible for a reasonable consumer to understand the difference between the FDA-approved over-the-counter drugs and the FDA-approved home remedies.

Dangerous dilutions

Ars readers have known for a long time that homeopathy is a pseudoscience that uses toxic substances to make it look like it's dead. There are two nonsensical concepts in the practice: that a toxic substance that produces the same symptoms as a disease can be used to cure that disease, and that the therapeutic potency of a substance increases with more and more ritualistic dilution. Some homeopaths think that water can have memory.

Advertisement

Homeopath products are watery placebos. Worst of all, they're poorlyDiluted Toxic Potion. It's not just a hypothetical. The FDA found elevated levels of the toxic substance belladonna in teething products for infants. There were 10 infant deaths and more than 400 illnesses linked to the products.

As such, consumer and advocacy groups, such as the CFI, have long railed against the sale of homeopathic products. And the CFI doesn't mince words. "Homeopathy is bunk," the organization wrote regarding its lawsuit against Walmart. "All evidence demonstrates that it doesn't work at any level above that of a placebo. And it can't work, unless every understanding of science we have is incorrect." But, placed alongside legitimate medicines in pharmacy aisles, like those in Walmart and CVS,  they are "peddled to an unsuspecting public as a cure for everything from ear aches to asthma."

The claim that the products' placement in stores could be used to deceive consumers gave judges pause. The judges argued that the placement on shelves with real medicine did not constitute an actionable representation as to efficacy.

The judges disagreed. Courts in the past have found that non-verbal cues and imagery can be seen as misleading to consumers. They pointed to a case in which obsolete motor oils were sold on the same shelf as non-obstruction motor oils. The federal district court dismissed the case when the defendants tried to have it thrown out for failing to recite a deceptive practice. There was a warning on the back of the motor oils that they were not suitable for use in most gasoline powered automotive engines built after 1988.