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USPLabs sues retailer for defamation over 'false and disparaging' comments about Jack3d, DMAA

1 commentBy Elaine Watson , 04-Jun-2012

USPLabs has taken legal action against a Max Muscle franchisee in Reno, Nevada, accusing owner Philip Tracy of making "false and disparaging" comments about its Jack3d supplement, and its core ingredient DMAA (1,3-Dimethylamylamine).

USPLabs has maintained radio silence ever since receiving a warning letter from the Food and Drug Administration (FDA) raising concerns about the regulatory status and safety of DMAA in late April.

However, the lawsuit is one of the strongest indications yet that it does not plan to roll over and accept the FDA's interpretation of the legal status of the controversial stimulant.

USPLabs is working on reformulated products as a back up option

Speaking to NutraIngredients-USA this morning, Peter Hutt, a senior counsel in the Washington, DC law firm of Covington & Burling, confirmed that USPLabs had written to the FDA strongly defending its products Jack3d and OxyElite Pro.

He added: "In the view of the company, DMAA is documented with three separate analytical studies as being present in geranium and by law there is no requirement that DMAA in supplements be natural and no requirement for submitting an NDI."

As for safety, he added: "There are seven clinical safety studies submitted and discussed and also toxicology reports confirming its represents no significant risk."

However, USPLabs has been working on reformulated versions of Jack3d and OxyElite Pro should the FDA fail to be persuaded by its arguments, he said.

Defendant 'falsely charges Plaintiff with selling the equivalent of rat poison'

Meanwhile, in a complaint filed in Dallas, Texas, on May 23 against MMRNV LLC (doing business as Max Muscle Sports Nutrition, Reno, Nevada) and owner Philip J. Tracy, USPLabs said a recent interview Tracy had conducted with local TV station KRNV had damaged its reputation and harmed its business.

Tracy, who is the owner of Max Muscle Reno, a dietary supplement retail outlet that no longer sells Jack3d, but “does, however, sell other dietary supplements that directly compete with Jack3d”, conducted an interview with KRNV, through its news broadcast, News4, said USPLabs.

Interview prompted ‘additional inflammatory and derogatory statements’

During this interview, parts of which were published on the website my4news.com, Tracy described Jack3d as “an amphetamine-like compound” that “speeds up your heart rate”.

He also said: "When you are working out your heart is pumping. If you take a product that constricts your blood, you're actually causing damage to your body and possibly death.

"It's a derivative of rat poisoning and has a lot of side effects."

The interview was subsequently republished on several other news sites, which in turn prompted “additional inflammatory and derogatory statements to be published on Defendant Max Muscle Reno’s website and Facebook page”, claimed USPLabs.

USPLabs has ‘suffered economic loss attributable to Defendant’s disparaging statements’

It added: “The statements were made in the context of direct references to the ‘manufacturer’ of Jack3d, and USPlabs is the only manufacturer of this product.

“USPlabs has suffered economic loss attributable to Defendant’s disparaging statements.”

Meanwhile, Jack3d “continues to be marketed and sold through retail stores and online retailers, which are competitors of Defendants”, noted USPLabs.

“As a franchise of a national chain of Max Muscle retail stores, Defendants are well aware of these business relationships.

“Defendants made the false and disparaging statements… about Jack3d with the intent to harm Plaintiff USPlabs by interfering with Plaintiff’s business relationships with current purchasers of Jack3d.”

Comments 'impugn USPLabs' honesty, integrity, and business reputation'

Tracy’s “false and disparaging statements” interfered with USPLabs’ current and prospective relationships with potential purchasers of Jack3d, claimed USPLabs, which is represented by legal firm The Brewer Law Group.

His statements were also defamatory, claimed USPLabs: “Defendants’ statements are defamation per se in that they impugn Plaintiff’s honesty, integrity, and business reputation, and expose Plaintiff to public hatred and financial injury.

“Further, one of the statements falsely charges Plaintiff with selling the equivalent of rat poison for human consumption, which would be a crime.”

Tracy did not respond to requests for comment before this article went to press, while Hutt declined to comment on the case, which is being handled for USPLabs by The Brewer Law Group in Dallas.

FDA: Still evaluating responses to warning letters

All 10 recipients of the April FDA warning letters on DMAA have now written back , an FDA spokesman told NutraIngredients-USA.

Each of the companies has responded to the warning letter it received and FDA is in the process of evaluating the responses.”

But he added: “Because the matter is still open, FDA cannot offer additional information at this time.”

Asked whether the FDA planned to seize DMAA-containing supplements from stores or warehouses, he said: “FDA cannot offer comment on any future actions it may be considering.”

Click here for all the latest on DMAA.   

1 comment (Comments are now closed)

Paracelsus: "the dosage makes it either a poison or a remedy"

Let's hope they don't sue Wikipedia also; there's a cute diagram there showing the molecule's similarity to the active part of the amphetamine molecule. I don't consider it to be particularly wise to be consuming vasoconstrictors either, especially by anyone "recovering" from sports activities. I have to admit that the rat poisoning statement is a little bit off the wall, but I don't think it's so bad to put a little fear of God into potential users of the substance. It appears to be safe for most people in normal doses, but the market it's being aimed at could hardly be considered "normal"--i.e., I think it's safe to say that a number of potential users could be considered to almost possess OCD about bodily enhancement and would be more likely to adhere to a "the more the merrier" philosophy of doing whatever they think it takes to turn themselves into whatever caricatures of humanity they are trying to achieve. How can you sue someone for calling the substance a poison? It's all a matter of dose--"Poison is in everything, and no thing is without poison. The dosage makes it either a poison or a remedy"--Paracelsus. According to my Merck Index, the LD50 for the substance in rats is 185 mg/kg, ip. I see nothing defamatory about Max Muscle's comments.

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Posted by George Butel
05 June 2012 | 00h45

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