Cognitive Dissonance: State and Federal Enforcers’ Case Against Brain Health Dietary Supplement Due For Oral Arguments at the Second Circuit

A long-running legal battle concerning the memory supplement Prevagen has reached a critical juncture, with arguments scheduled before the Second Circuit Court of Appeals on February 26, 2026. The case, originating with a joint complaint filed in January 2017 by the Federal Trade Commission (FTC) and the New York Attorney General (NYAG), centres on eight specific claims made by the manufacturers and retailers of Prevagen regarding the supplement’s ability to improve memory and cognitive function.

The Core of the Dispute

The eight statements at issue – encompassing claims that Prevagen improves memory, reduces age-related memory decline, and provides broader cognitive benefits – were found by a jury to lack scientific support. While the jury determined that only two of these statements were “materially misleading” under New York law, the Court ultimately issued an injunction prohibiting the company from making all eight statements nationwide. This broad injunction is a key point of contention currently before the Second Circuit.

A Complex Legal Landscape

The case’s complexity stems from the interplay between federal and state laws. The FTC brought claims under statutes prohibiting unfair methods of competition and false advertising, while the NYAG acted under New York Executive Law, targeting alleged fraudulent and illegal acts. The jury trial, presented by the NYAG, was notable because the FTC’s participation was limited – the FTC was barred from disclosing its involvement to the jury, as it is not entitled to a jury trial itself.

Following the jury’s findings, the Court applied those findings to the FTC Act, reasoning that the New York laws are modelled after the federal regulations. This led to the nationwide injunction, despite the jury’s finding that only two statements were materially misleading under New York law.

Appeals and Key Questions

Appeals have been filed by the NYAG, the FTC, and Quincy Bioscience. The NYAG seeks to affirm the broad injunction and pursue monetary relief, arguing that all eight statements violate New York law. The FTC aims to solidify its ability to obtain permanent injunctions without prior administrative proceedings. Quincy Bioscience, however, is challenging the scope of the injunction, arguing that a New York statute should not apply nationwide and that the injunction is impermissibly vague.

Specifically, Quincy Bioscience contends that the injunction, which prohibits the eight statements and “similar” ones, lacks the specificity required by Federal Rule of Civil Procedure 65(d). They also argue that the FTC’s reliance on the NYAG’s jury verdict to secure a nationwide injunction was procedurally improper.

Frequently Asked Questions

What statements about Prevagen were found to be unsupported?

The jury found that all eight statements made by the manufacturers and retailers of Prevagen – concerning its ability to improve memory, reduce age-related memory problems, and provide other cognitive benefits – lacked scientific support.

Which statements were considered “materially misleading”?

Only two of the eight statements were found to be “materially misleading” under New York law: “Prevagen reduces memory problems associated with aging” and “Prevagen is clinically shown to reduce memory problems associated with aging.”

What is the current status of the case?

The case is currently before the Second Circuit Court of Appeals, with oral arguments scheduled for February 26, 2026. The appeals concern the scope of the injunction and the reach of the New York Executive Law.

As the Second Circuit prepares to weigh in, the outcome of this case could significantly shape the landscape of consumer protection law and the enforcement of advertising claims.