Opposing pseudoscience is consumer protection. We at CFI know that. You know that. And, finally, the D.C. Court of Appeals has recognized that as well.

It’s been a long time since I argued CFI’s case in front of the D.C. Court of Appeals in January and an even longer time since we first briefed the appeals in both CFI v. CVS and CFI v. Walmart. Even by the glacial speed standards of the legal system, it has been a long delay. But this morning, finally, we got what we’ve been waiting for: the appeals court reversed and remanded the dismissal by the trial courts of our claims, and we can now go forward.

You can read the decision here.

There are two key parts to the decision. The first is on standing. The trial courts decided that CFI wasn’t a consumer protection organization—because, although we have decades of history of work against pseudoscience, that work was theoretical, not consumer protection. According to the lower courts, we just wanted to show that homeopathy (and reiki healing, and acupuncture, and so on) is bunk, and that’s that. The Appeals Court, though, rejected this. It recognized that “CFI’s mission-driven opposition to homeopathy as a pseudoscience and CFI’s efforts to remove homeopathic drugs from the market show that, at least in part, CFI both is organized and operates to promote the interests of those who would be consumers of ‘ineffective’ homeopathic products.”

This is a really big deal. Had it gone the other way, our whole litigation campaign against homeopathy would have been hobbled. CFI’s use of this D.C. law to challenge retailers and manufacturers depends, unsurprisingly, on the courts allowing us to do so.

The second key element of the decision regards the trial courts’ assertion that CFI failed to allege anything that could reasonably be considered deceptive to consumers. Walmart and CVS have the ability to deny responsibility and maintain that their product placement, and the signage that goes along with it, doesn’t really mean or suggest anything at all. That’s clearly nonsense, and any reasonable observer can see that. If a store stocks something below a sign that reads “pain relief,” the obvious and reasonable presumption is that the store is trying to say that the products provide pain relief. Especially when it’s a store that advertises itself as a “partner” to consumers in making their health care decisions.

The Court of Appeals smacked down this counterintuitive notion. It said in no uncertain terms, “we hold as a matter of law that the placement of a product can be a representation within the meaning of the CPPA.” Of course, this doesn’t mean that CVS’s and Walmart’s actions here were fraudulent misrepresentations. What it does mean is that CVS and Walmart have to answer the allegation. The Court of Appeals remanded these cases back to their respective trial courts. In essence, it’s giving us our day in court—we get to go through discovery, question their employees on the record, and try to prove that the stores’ actions violated the law.

The war still has a long way to go, but this battle has ended in a major victory. It’s likely, I think, that both defendants will want to talk more seriously about a settlement and how they can avoid having to defend how they sell products they know are worthless in front of a jury. If they don’t provide a real, impactful change to their behavior, then the cases will continue.

You can follow all our work in this area on the website for the Office of Consumer Protection from Pseudoscience. And there’s a lot happening. Boiron, the world’s largest manufacturer of homeopathy, has officially answered our complaint (Spoiler Alert: they disagree with our claims!), and the trial court has established a schedule for discovery and motions in the case. We’ve also sent letters to both Amazon.com and Chewy challenging the ways in which they recommend and promote homeopathic remedies for humans and animals. We’re waiting on their responses.

There’s much more work to be done, but, for today, we’re enjoying being able to celebrate a win. Cheers!