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Generally, there is no medical basis for most claims on homeopathic product labels.  But thousands if not millions of people use and find value in homeopathic products, apparently regardless of the fact that the science underpinning the products is shaky at best and possibly non-existent.  However, just because one of these pseudo-remedies doesn’t work for you doesn’t you mean have a consumer protection claim.

This was essentially what the court told plaintiff in Jordan v. CVS Pharm., Inc., 2024 U.S. Dist. LEXIS 84048 (W.D.N.Y. May 8, 2024), when it dismissed her claims.  Plaintiff purchased eye drops that were described as a “homeopathic formula that stimulates the body’s ability to relieve redness, burning, watery discharge, and sensations of grittiness.”  Id. at*2.  Plaintiff alleges that the product’s labeling was false and misleading, including causing consumers to believe the eyedrops were a “drug,” and that she paid a premium price as a result.  Id.  Plaintiff also alleges that the product did not work to relieve her symptoms and that the eyedrops contained an unsafe preservative.  Id. at *8. 

Because New York law recognizes claims for false and deceptive representations to consumers, plaintiff’s claim had an independent basis in state law and dd not depend on a violation of the FDCA.  Therefore, plaintiff’s claim was not implied preempted.  Id. at *8-9.  But in examining New York law, the court found plaintiff had not done enough to state a viable claim.

New York has established three requirements for a consumer protection claim:  the challenged practice/statement must be consumer-oriented; the act/statement must be materially misleading; and the plaintiff has to have suffered an injury.  Id. at *10.  The test for materially misleading is an objective one—“whether the misrepresentation or omission is likely to mislead a reasonable consumer.”  Id.  This is something more than the possibility that a label may be misunderstood by a “few consumers viewing it in an unreasonable manner.”  Id.  Importantly, FDA regulations do not factor into the reasonable-consumer analysis.  So, the court ignored plaintiff’s extensive reliance on an FDA warning letter as evidence of deception.

That left as plaintiff’s primary argument that the product’s statement that it would relieve certain symptoms was false and misleading because it did not relieve plaintiff’s symptoms.  However, plaintiff makes that allegation without offering any facts in support, such as what symptoms she had, what relief she expected, and what she experienced when she used the product.  Plaintiff’s unsupported allegation was made even more dubious by the fact that she used the product “over a three-year period.”  Id. at *11 (emphasis in original).  Fool me once, shame on you.  Fool for me three years, shame on me.  Similarly, whether one experiences “relief” is completely subjective.  Plaintiff offered no legal support for her “did-not-relieve” theory.  So, the court examined plaintiff’s claim in the context of the product’s label.

The front of the package said it was a homeopathic product.  The back of the package stated: “Claims based on traditional homeopathic practice, not accepted medical evidence.  Not FDA-evaluated.”  Id. at *13-14.  The court found that was enough to conclude that a reasonable consumer would not be misled into believing the product “carried an official regulatory imprimatur or guarantee.”  Id. at *14.  In other words, the label tells you this is not a drug or a medically accepted remedy, but rather pseudoscience that may provide some relief or may be the same thing as walking to your sink and splashing cold water on your face.  The choice is yours.

Finally, plaintiff tried to state a claim on not knowing the product contained the preservative silver sulfate.  But silver sulfate is listed right on the label as an inactive ingredient (preservative).  So, the court found this claim implausible. 

Overall, the opinion reads as sort of a buyer beware for homeopathic products.  If a homeopathic product, which by definition has no supporting evidence of efficacy (this one even said it on the label), doesn’t work for you—you haven’t been misled.  You got exactly what you paid for.