“This is an action under the California Unfair Competition Law to enjoin the unlawful distribution and sale of ejiao - a food supplement/nutraceutical product derived from the skin of slaughtered donkeys,” reads the complaint, filed by the Evans and Page law firm in San Mateo County on Feb. 14.
Over a dozen U.S. and foreign corporations are listed as defendants, including online retailer Amazon. The director of the California Department of Consumer Affairs and the President of California Acupuncture Board are also named in the suit.
A ban on equine body part consumption
In 1998, California enacted Proposition 6, outlawing the sale of equine body parts for human consumption. This includes donkeys, alleges the complaint, referencing California Penal Code § 598c, which defines “horse” as “any horse, pony, burro or mule”. The plaintiff also stresses that the donkey population, facing global extinction, deserves protection from being slaughtered for use in supplements “as an important part of California's heritage.”
Ejiao, a gelatin made from boiled donkey skin, is used in traditional Chinese medicine and cosmetics like face cream. To flesh out the ingredient’s definition, the Evans and Page lawyers cite a 2018 social media post from China’s National Health and Family Planning Commission, which was subsequently deleted from the agency's Weibo account.
“Ejiao has long been one of the most-hyped health supplements, as it is branded to have many benefits such as replenishing blood, stopping bleeding, nourishing skin, avoiding miscarriage, resisting fatigue and preventing cancer," it read. "However, if we see through the hype built around it and examine its essence, ejiao is just boiled donkey skin.”
Under California Penal Code § 598d, violations of Proposition 6 are punishable by fines of up to $1,000, and/or jail time between 30 days and two years. Second time offenders face a state prison sentence of two to five years.
The misleading claims issues
Also, as cause of action are several alleged fraudulent business practices including mislabeling, misbranding and misleading claims – all in violation of the Dietary Supplement Health and Education Act (DSHEA).
One example is the “Artemisia Anti-Hemorrhage Formula Dietary Supplement” distributed by Herbal Science International and sold on Amazon, which the plaintiff says falsely claims to be “Made in the USA”, “Manufactured under FDA Registered Facility” and “100% Herbal.”
“Merriam-Webster’s Online Dictionary defines ‘herbal’ as made of ‘a plant or plant part valued for its medicinal, savory or aromatic qualities’”, the complaint reads. “Donkey skin does not come from an herb or plant.”
In addition, the suit targets the heads of the California Department of Consumer Affairs and the California Acupuncture Board because the acupuncture license preparation guide requires applicants to “train on the uses, benefits, and administration of ejiao in California as an herbal supplement”.
“By requiring applicants for an acupuncture license to learn the benefits of prohibited ejiao products, Defendants have violated that mandatory duty, since the inclusion of ejiao in the examination materials explicitly and implicitly condones its use and provision by practitioners in the State of California,” the complaint states.
Commenting independently on the lawsuit, Marc Ullman, of counsel at Rivkin Radler, told NutraIngredients-USA that there appear to be a number of concerns, assuming the truth of the allegations.
“I think that they have significant issues on a number of different fronts ranging from California law to USDA regulations to claims being made on behalf of many of the products on top of appearing to attempt to hide the true nature of the ingredient from consumers,” he said.
“We still need to hear from the defendants,” he added.
NutraIngredients-USA attempted to contact Amazon for comment but did not hear back prior to publication.