The sprawling supplement industry based in greater Los Angeles is once again coming under the spotlight now that a Canadian bobsledder is blaming a local supplier for keeping him out of the Vancouver Olympics.
In March, Serge Despres filed a lawsuit in Los Angeles Superior Court against Nutriland Group, claiming that an ingredient the Paramount company supplied for a nutritional supplement caused him to miss out on the Olympics.
In 2007, Despres was hit with a two-year suspension after he tested positive for steroids. Through lab tests, he traced the banned substance to a muscle-building supplement named Kaizen HMB, manufactured by Kaizen Nutrition of Gardena.
He sued and won a $437,500 settlement from Kaizen, which claimed its HMB product was entirely supplied by Nutriland. Now Despres’ attorney, Howard Jacobs of Westlake Village, who has successfully represented several athletes in similar lawsuits, is going after Nutriland.
Staff writer Deborah Crowe contributed to this article.
“There are a number of legal claims, but they all stem from the finding that the ingredients contained actual steroids, an illegal substance,” Jacobs told the Business Journal.
The suit alleges that the company committed negligence, misrepresentation, and violations of product liability and implied warranty laws.
Jacobs claimed in court papers that Nutriland “owed a duty to exercise reasonable care and caution” to ensure its products were “safe, wholesome and otherwise fit for consumption by competitive athletes and the general public.”
Nutriland has a simple Web site that describes the company as a bulk ingredient supplier to the health food industry. The product list spans 150 chemicals, from complex amino acids to herbs to vitamins. The company also offers contract manufacturing services with the motto, “You give us a label, we give you a bottle.” The site states that Nutriland “stands behind its products 100 percent.”
A spokeswoman for Nutriland Group said the company had not yet been served any lawsuit and had no comment. Calls and e-mails to Kaizen Nutrition were not returned.
The nutritional supplement industry in Los Angeles and Southern California is large and diverse, with players ranging from mom-and-pops to private label suppliers to one of the county’s largest public companies, Herbalife Ltd. in downtown Los Angeles. But it is also largely unregulated. Unlike pharmaceutical and food products, nutritional supplements do not require approval from the Food and Drug Administration. Manufacturers do not even have to provide product information to the FDA.
Consumer protection advocates have tried for years to convince Congress to give the FDA authority to regulate supplements similarly to how pharmaceuticals are handled. But loose coalitions of supplement makers, health food stores and their customers have managed to block such efforts in the past.
Regulators typically can only step in after complaints, such as in 2004, when the FDA banned the sale of ephedra-containing supplements for weight loss and other conditions after a series of heart-related deaths. The scandal led to the bankruptcy of Metabolife, a high-profile San Diego company. Herbalife, one of the first companies to eliminate ephedra from its products, also was hit by an onslaught of lawsuits.
Sports commissions, including the U.S. Anti-Doping Agency, explicitly warn athletes that they are responsible for what goes into their bodies, so they take supplements – or even over-the-counter drugs – at their own risk.
Max Mehlman, a professor of law and bioethics at Case Western Reserve University in Cleveland, said there is risk, since lax regulation and low costs of entry have created an industry of small suppliers without many assets to take even if a lawsuit succeeds in proving liability.
“The real question is, What do these products contain and how can you know what they contain?” he said.
Mehlman added that the legal uncertainties are even greater when the liability claims involve “trace” amounts of some chemical. In Despres’ case, the lawsuit alleges the product he used was contaminated with trace amounts of steroid.
Jacobs said he has represented about 10 athletes with claims similar to Despres’. His most high-profile victory was in 2005 for Kicker Vencill, a swimmer who missed the 2004 Olympics after testing positive for a banned steroid precursor. The chemical was traced to a multivitamin manufactured by Ultimate Nutrition of Farmington, Conn. A court awarded Vencill $578,635, but he later settled for an undisclosed amount.
The Despres suit seeks $437,500 from Nutriland, in addition to unspecified damages for harm to the athlete’s reputation and career. Jacobs estimated that the case could go to trial in a year.
Although Despres was cleared to compete in time for the 2010 Olympics, his suspension kept him from accumulating enough points on the Bobsled World Cup circuit to qualify for the Canadian team, his lawyer said.
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