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Claims of deceptive marketing against the makers of the dietary supplement Prevagen were revived Thursday by the U.S. Court of Appeals for the Second Circuit.

Plaintiffs brought claims under both New York state and federal law.

The three-judge panel, composed of Circuit Judges Rosemary Pooler, Raymond Lohier Jr. and Susan Carney, reversed and remanded the case back to U.S. District Judge Louis Stanton of the Southern District of New York, ruling that the suit had been erroneously dismissed.

The supplement's maker, Quincy Bioscience, made claims in advertising material that Prevagen was clinically proven to improve memory and other brain functions in most people that took it, through its active ingredient's affect on brain proteins lost with age.

The Federal Trade Commission and the New York AG's office brought claims under both the FTC Act and New York business law, claiming the supplement maker's made materially deceptive claims about Prevagen. They alleged that scientific studies conducted by the company itself that showed no statistically significant improvements in memory.

In September 2017, Stanton dismissed the federal and state granted Quincy Bioscience's motion to dismiss, agreeing that neither had properly stated a claim. Stanton ruled that prosecutors' claims of no statistically significant improvements were untrue, as studies of some members of subgroups inside the study “did show a statistically significant difference.”

On appeal, the panel said Stanton erred in dismissing the suit, as the FTC and AG's offices were able to make plausible claims that should have survived the dismissal motion. Clinical trials allegedly showed no significant improvement in the treatment group over the placebo group in any of the nine tests done. This was enough to undermining claims that Prevagen helped “most people,” as well as stating cognitive improvement was clinically supported, the panel found.

More, prosecutors' allegations that the active ingredient in Prevagen, apoaequorin, does not in fact enter the brain to supplement lost proteins was a plausible one. The panel noted that the allegations the supplement in fact is simply digested like any other dietary protein supports allowing the government prosecutors to proceed.

“The FTC and New York have made plausible allegations that Quincy's marketing campaign for Prevagen contained deceptive representations, and the district court erred in dismissing the Complaint in its entirety and refusing to exercise supplemental jurisdiction over New York's claims,” the panel stated.

Kelley Drye & Warren partner Jeffrey Jacobson represented the Quincy Bioscience parties in the suit. He declined to comment on the panel's ruling.

A spokesman for the FTC did not provide an immediate comment. A spokeswoman for the AG's office did not respond to a request for comment.

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