Banyan Medical Services and Pivot Concierge are being sued by the Nebraska Attorney General’s office over claims they used false advertising when marketing their antibody tests.
Around the time that COVID-19 was beginning to spread around Nebraska, Banyan Medical Services and Pivot Concierge began offering antibody testing. According to the two companies, the “blood test could show if you were previously exposed to COVID-19.” However, a lawsuit was recently filed by the Nebraska Attorney General’s office over allegations that the companies misrepresented the characteristics of the test, “namely that is could diagnose COVID-19.” Meghan Stoppel, Chief of Consumer Protection for the Attorney General’s office said, “When in fact we know from the science that these tests are not capable of doing that.” The office added that Banyan and Pivot “deceived and misled consumers.”
According to the suit, the state also argued the companies’ marketing “suggested the antibody test could identify an active COVID-19 infection when it could not.” Additionally, the state claimed the two companies failed to explain “that limitation to consumers, even though it was spelled out by the actual manufacturer of the antibody test.” Stoppel added:
“So the manufacturers told the defendants you need to tell consumers ‘xyz’ about their test results, but the defendants turned around and didn’t tell the consumers ‘xyz’ about their test result.”
Instead, the suit alleges that “people received emails with their rapid screening test results listed without information the FDA recommends be included.” According to court documents, “local doctors considered the lack of disclosures a significant risk to public health.” Stoppel said:
“People are making in some cases life-and-death decisions about whether to go to work, whether to spend time with their family, whether to engage in activities that six months ago they didn’t think twice about; they deserve that information.”
Stoppel further stated that “because the companies were offering both diagnostic and antibody tests, the distinctions between the purpose of the two tests should have been clearer.” She added, “Given the pandemic that we’re facing right now, it’s more important than ever that consumers receive accurate and non-misleading information.”
When questioned about the matter, a spokesperson for the companies said they “never meant to promote that we were only utilizing antibody screening as such screening was only one part of our comprehensive program.” The full statement from Banyan and Pivot reads:
“We have been fully cooperating with the State Attorney General, providing comprehensive information regarding our screening and testing program, and we will continue to work with them. It is important to note that the State’s action relates to our use of, and communication surrounding antibody tests, which were used in conjunction with PCR (nasal swab) testing as part of a screening and testing protocol that we made available to the public at a drive-thru location in April and May – before the State had begun its Test Nebraska program.
Our communications to the public regarding our program were never meant to promote that we were only utilizing antibody screening as such screening was only one part of our comprehensive program. We fully stand behind our program and our substantial efforts to provide timely screening and testing services to the public that were lacking during the initial outbreak of the global COVID-19 pandemic. Our program was managed by highly-credentialed, licensed medical professionals, and was a program which utilized similar antibody screening kits as were utilized in other programs run by local municipalities across the country (including public health departments in Los Angeles and Denver).
While we await resolution with the State, Pivot Concierge Health continues to provide a robust nasopharyngeal swab testing program that is available to the general public and to employers desiring consultation and testing as it relates to COVID-19 matters.”
At the moment, the State of Nebraska’s suit seeks unspecified civil penalties against Pivot and Banyan and “wants the companies to repay customers who contracted with them based on the promises made in the advertisements.”