Prevagen Maker Can’t Escape Brain Supplement Class Action

The proposed Class in a lawsuit alleging the makers of Prevagen mislead consumers by labeling the dietary supplement as being able to improve brain function has been certified by a federal judge.

Lead plaintiff Phillip Racies alleged in his class action lawsuit that manufacturer Quincy Bioscience LLC made false, misleading, and deceptive statements about Prevagen.

Racies says that Prevagen’s only active ingredient is broken down in the digestive system before it can have any perceivable effect on the brain, but the product is advertised as clinically proven to improve brain function.

U.S. District Court Judge Haywood S. Gilliam Jr. agreed to certify the proposed Class despite Quincy’s argument that consumers may have purchased Prevagen for reasons other than the allegedly deceptive labeling.

“The predominant issue in this case is whether such representations are false or misleading, not whether consumers were also persuaded to purchase Prevagen because these representations were substantiated by clinical testing,” noted the judge’s order.

Quincy also argued that the proposed Class in the lawsuit should not be certified because consumers could have returned the product if they were not satisfied. The judge rejected the supplement maker’s argument and instead agreed with the plaintiff and certified the proposed Class.

Judge Gilliam agreed to certify a Class of Californians who purchased several varieties of the brain supplement, including: Prevagen Regular Strength, Prevagen Extra Strength or Prevagen Mixed Berry Chewable.

The judge refused to certify the plaintiff’s proposed nationwide Class of consumers, however. The plaintiff failed to demonstrate why California law should apply to the nationwide Class, stated the judge in the order.

Further, the judge refused to extend the class action claims to two other Prevagen products, Extra Strength Chewable and Professional Strength. The judge pointed out that these products were added to the class action after the initial complaint and that the plaintiff did not satisfactorily explain why the products were not included originally.

According to the class action lawsuit, the plaintiff and other consumers were deceived into thinking Prevagen would promote “healthy brain function” and provide them “a sharper mind” and “clearer thinking,” along with other promises based on labeling.

The labeling informed consumers that the supplement had been clinically tested to show improvement in memory; however, pointed out the plaintiff, the active ingredient, a jellyfish protein, was not present in amounts that would make it through the digestive process.

“Because Prevagen is not marketed for uses other than improving brain health and memory, it follows that representations about these purported benefits were a ‘substantial factor’ in plaintiff’s — and all consumers’ — purchasing decision,” stated the judge’s order.

Racies is represented by Patricia N. Syverson, Manfred P. Muecke and Elaine A. Ryan of Bonnett Fairbourn Friedman & Balint PC and Stewart M. Weltman of Siprut PC.

The Prevagen False Advertising Class Action Lawsuit is Phillip Racies v. Quincy Bioscience LLC, Case No. 4:15­-cv-­00292, in the U.S. District Court for the Northern District of California.