Herbalife Criticized at Senate Hearings
Odom Fanning
Opening two days of hearings, Senator William V. Roth, Jr.
(R-DE), chairman of the Senate Permanent Subcommittee on Investigations,
made it clear that their purpose was not to "get" Herbalife
or any other product, but resulted from five months of investigation
into weight reduction products and plans of all types. The Subcommittee
is authorized to investigate the efficiency and economy of all
branches of the government and also has jurisdiction over "all
aspects of crime and lawlessness within the U.S. which have impact
upon or affect the national health, welfare, or safety."Roth acknowledged that following announcement of the hearings (held in Washington, D.C., May 14th and 15th), he had received a "very large number of phone calls and letters from individuals who are very satisfied with the Herbalife products, and have lost large amounts of weight." Many of these correspondents, and an estimated 3,000 Herbalife distributors who marched on the second day, were obviously on the defensive. So was the Food and Drug Administration, for, as the senator put it, the purpose of the hearings was "to find out if the public is being adequately protected when it buys and consumes diet products."
In his opening remarks, Roth made a distinction between "miracle pills and creams," tinted sunglasses, plastic ear forms and other "patently fraudulent products" and the very low calorie (VLC) products that can actually produce weight loss but may not be safe. His major concern with the VLC products, he specified, "is with what the Food and Drug Administration is doing and what it is not doing, particularly when serious questions have been raised both within the FDA and outside this agency about the safety of such products....We are dealing with a multi-billion dollar industry which produces items ingested into the human body. Yet the FDA has been reticent to involve itself in low calorie diets. I want to know why, because I think the public deserves to know conclusively about the safety of individual products now in the marketplace."
On the first day Roth's subcommittee heard testimony from scientists and VLC product users, all of whom submitted written statements as well. Most of the scientists favored more regulation of such dietary products; the users were pro and con.
One scientific witness was Judith S. Stern, Sc.D., professor of nutrition and director of the Food Intake Laboratory at the University of California, Davis. She conceded:
The inadequacy of traditional medicine to provide a permanent cure for obesity has given rise to an entire industry of entrepreneurs who claim to be able to relieve the frustrations of the overweight. The ironic tragedy is that most diets work-at least initially-when they are followed. However, fad diets are usually quite restrictive in their food choices, may have unpleasant side effects, and most people cannot follow them for any length of time. In addition, when daily calories are restricted below 1,200, it becomes difficult to satisfy all other nutrient needs.Dr. Stern also made the distinction between "miracle cures" and VLC products. Products in the former category include the hormone cholecystokinin (CCK), claimed to decrease hunger, and various amino acid pills, said to release growth hormone. Both have been promoted with false claims based on legitimate scientific discoveries that were overgeneralized and misrepresented, she noted.
Debunking claims that grapefruit or grapefruit extract can act in a catalytic manner enhancing breakdown of fat, Dr. Stern described her testimony last year which helped the U.S. Postal Service stop sales of Super Grapefruit Pills by a California company. Noting that these pills contained glucomannan, she reported that in 1980 she had conducted a double-blind study in which the test group received one gram of glucomannan while the control group was given a placebo. Both groups were placed on a behavior modification program. Both groups lost weight, she noted, but there were no statistically significant differences in hunger ratings or weight loss between them.
Dr. Stern also zeroed in on kelp/lecithin/cider vinegar/vitamin B6 combinations found in dietary products since 1974. Iodine-rich kelp is potentially harmful to a small number of individuals in whom high amounts of ingested iodine can cause thyroid trouble. The other three ingredients are worthless, she noted.
Another expert witness was Varro E. Tyler, Ph.D., professor of pharmacognosy (the science of medicines from natural sources) and dean of Purdue University's School of Pharmacy and Pharmacal Sciences. Here is my summary of Dr. Tyler's detailed analysis of various Herbalife products contained in the lengthy packet of written material released by Roth's subcommittee to the press:
- Slim and Trim Formula #1 (46 cents per day), described in the sales literature "as a balanced protein powder made from natural vegetable soy, casein and whey protein." Tyler said the product is falsely represented in company literature because there is nothing about a protein powder, per se, that will curb the appetite any more than an equivalent amount of protein derived from eating lean meat, nuts, or the like. Further, no protein powder will "cleanse the system" or facilitate "burning excess calories." It will supply needed daily nutrients, but no more effectively than a low-calorie diet, carefully balanced for carbohydrates, minerals, and vitamins-as well as protein.
- Slim and Trim Formula #2 (21 cents per day), described by the Herbalife organization as a special blend of 14 herbs plus kelp, lecithin, vitamin B6, and cider vinegar designed to cleanse the digestive system and naturally help curb the appetite. Tyler said that, of its many herbal ingredients, none is actually present in sufficient quantity to produce significant physiological effects by itself. But he noted that four ingredients-senna, cascara sagrada, dandelion root, and kelp-might work together to exert a laxative effect in sensitive individuals.
- Slim and Trim Multivitamin and Multimineral Formula #3 (23 cents per day) is a fairly standard vitamin/mineral preparation with some herbal products added in such tiny amounts that they exert no significant effect. Unless vitamin deficiency was present, Tyler noted, the product would be a complete waste of money.
- Slim and Trim Linseed Oil Formula #4 (10 cents per day) contains small amounts of linseed oil but has no advantage over less expensive vegetable oils ordinarily used in the kitchen of the average home. (Moreover, as noted by the next witness, the amount found in the formula will be obtained in food consumed in just one balanced meal per day.)
- Cell-U-Loss (43 cents per day) is described in Herbalife literature as a product designed to attack cellulite, promote circulation, and eliminate excess fluids, is recommended for use with the Slim and Trim formulas. Tyler noted that its tiny amounts of herbs would at most cause a slight diuresis (output of body water), but would have no effect whatsoever on appetite or body fat.
- Herbal-aloe is said to aid digestion and cleanse the system. Although uncertain of the type of aloe contained in this product-which may be a laxative-Tyler expressed deep concern over two of its other herbal ingredients. Comfrey, he said, is a known carcinogen, shown to produce malignant tumors in the livers of rats when included in their diet. And the active constituent of chapparal, nordihydroguaiaretic acid (NDGA), was removed from the FDA's GRAS (Generally Recognized As Safe) list many years ago after it was shown to cause cysts and kidney damage in rats.
- N.R.G. (Nature's Raw Guarana) (80 43 cents per day), claimed to increase energy, aid in mental alertness and produce a nutritional lift, is sold in tablets that contain small amounts of granular guarana, the seed of a South American plant known to contain about 5% caffeine. The amount of caffeine in the recommended dose of N.R.G. is about the same as that in a cup of strong coffee-but the presence of caffeine is not revealed in product labeling or literature. Thus, individuals sensitive to caffeine might be unwittingly harmed.
- Schizandra Plus tablets are said to help combat stress and damage leading to premature aging. Although he suspected that the dosage of its ingredients was too low to exert pharmacological effects, Tyler indicated that tests are needed to determine whether chemicals extracted from schizandra can protect or harm the liver [see NF 2:29].
- Tang Kuei (50 cents per day), said to help establish menstrual regularity and provide "herbal nutrition" for the whole body, contains dong quai (also known as dang gui and pinyan) and chamomile. These drugs -- used in traditional Chinese medicine -- have not been proved by Western standards. Tyler noted that even if they are effective, the amounts contained in Tang Kuei are far below those used in China. Moreover, under federal law, Schizandra Plus and Tang Kuei are unapproved new drugs that are not legal to sell in the United States.
- Some Herbalife products may well be toxic, at least to some consumers.
- Herbalife literature and word-of-mouth recommendations build up false hopes in consumers, most of whom are not able to benefit from the placebo effect.
- It is particularly deceptive because they lead the public to believe that Herbalife products "contain a lot of wonderful herbs with marvelous health-giving properties when the amounts present in the products are too small to have any significant physiological effects in normal persons.
- Consumers are thus paying good money for products which have no proven value.
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"With very rapid weight loss, and particularly with diets low in carbohydrate, there is an early diuresis, that is, loss of water via the urine. This accounts for much of the weight loss of crash diets and much of this water is reaccumulated when the diet is stopped," said Dr. Pi-Sunyer. "With this water loss, great amounts of sodium, potassium, and chloride are lost, as well as lesser but substantial amounts of calcium, magnesium, and other minerals. These must be replaced. If they are not, the electrical integrity of biological membranes may be lost, and one outcome of this may be cardiac arrhythmias."
Because dieters wish "to get on with it," there may be a tendency to take only the protein preparation, without supplementing it, as sometimes recommended, by a meal to bring the daily intake to at least 800 to 1,000 calories (of which 300 to 400 may be provided by the dietary product). Consumers also may ignore the limited period, say four weeks, recommended by some diet purveyors, and incur added risk by consuming the preparation for a longer time, said Dr. Pi-Sunyer.
He also reported that a colleague, Theodore B. Van Itallie, M.D., had reexamined data of the victims of the liquid protein diets of 1977-1978 and found that "the less fat you are the more dangerous these diets are for you, the more likely you are to lose life-requiring protein, and the more at risk of dying you are. Since these preparations are bought without restriction, many people take them who are not very fat, and these people seem to be particularly at risk."
Another user, Greg Martin, of Dover, Delaware, lost about 13 pounds in three months and "felt better than I had in years," after starting on Herbalife products in September 1984. He and his wife began selling the products in October, eventually building a customer list of 100 with ten distributors. But most of his customers suffered from constipation when using Slim and Trim Formulas, and 10 -15%t had other problems, he reported. One man who had had two previous heart bypass operations was taking Herbalifeline because Martin "understood from the literature that it was good for heart problems. This man became extremely constipated."
Because he was unable to get answers to his questions from Herbalife headquarters, Martin stopped selling its products to retail customers at the end of February. "I do not want to be associated with a company who claims its products are safe for everyone to use and then will not deal with [health] problems," he testified. He expressed the conviction "that diet products and food supplements can do a lot of good. I would not want to see them prohibited." He suggested, however, that standards be established and that the FDA "enforce these standards so that the public can be confident that these products are safe."
The final two lay witnesses testified to personal tragedies. Bernard Lehman, of Anaheim, California, formerly from a town near Nashville, Tennessee, said that he is not able to work because he has Hodgkin's lymphoma, a form of cancer. A few months ago, while "basically bedridden," he claimed that a distributor in Tennessee told him and his wife that she could lose weight taking Herbalife products, that both could earn needed income, and that "the Herbalife products would help to cure my cancer."
Lehman named the distributor and charged, "He told us this orally and showed us some brochures which said this" in writing. "However, he gave us different brochures without this information and said that he only had one copy of the special brochure, and he had to keep it for his use." Lehman summarized by saying that the distributor "basically said that the Herbalife products would act as a cure-all."Although he and his wife had "bad reactions" to the Herbalife products, they continued taking them "because we believed that we could make lots of money and we thought our own bad reactions to taking the products were unusual." They spent about $1,800 for inventory and publications and sold about $100 worth of Herbalife products before asking to get out and get their money back. They eventually received $1,000 from the distributor and still have $700 worth of product they "would just like to get rid of...and forget about."
Cynthia Guillaume Lee, of New Orleans, told the pitiful story of her late husband, Bivian Lewis Lee, Jr., who had retired as a National Football League player in 1976. He became a Herbalife distributor in October 1984 because "the extra money sounded real good," said Mrs. Lee. Although he was not overweight and "was very much against taking any kind of diet product," he began taking a Herbalife product because "he said that if he was going to sell it, he would at least try it out."
Two weeks later, Bivian, age 35, was dead. His widow testified:
I know that I'm not a doctor. I know that I'm not qualified to give medical opinions. But I do know that my husband was a perfectly healthy man. I saw him deteriorate from the perfectly healthy man to his death. And it all began when he started taking Herbalife. I want to tell what happened to me-it's not easy for me to do this-because I want this subcommittee, or the Federal Food and Drug Administration or somebody to investigate why my husband was alive and well until he started on the Herbalife products and now he's dead. I want to encourage the subcommittee to look into this so that other young mothers won't find themselves in my position.
Van Itallie found this thesis consistent with Bivian Lee's case, particularly because he was "persuaded by Lee's Body Mass Index, indicating that he had lesser stores of body fat."
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Canadian Herbalife Marketers Fined $150,000 for Operating Illegal Pyramid Scheme
Competition Bureau Ottawa, Canada November 23, 2004
A Competition Bureau investigation into a Vancouver-based multilevel marketing firm has led to a $150,000 fine and guilty pleas on two counts under the deceptive marketing provisions of the Competition Act. The matter has been resolved with Global Online Systems Inc. (GOLS) voluntarily pleading guilty and signing a Prohibition Order filed with the Federal Court of Canada. An investigation by the Bureau revealed that GOLS was operating a scheme of pyramid selling that involved health-related products marketed by Herbalife Canada Ltd.
Contrary to the Act, participants were compensated for the recruitment of new participants and had to buy specific quantities of products as a condition of joining the plan. In addition, GOLS and its participants—through its Web sites and other promotional materials—recruited new participants by exaggerating income expectations without disclosing the income of a typical participant."Those who join pyramid schemes are often enticed by promises of easy money, but only the very few at the top ever see any real benefit," said Raymond Pierce, Deputy Commissioner of Competition. "The Bureau is committed to pursuing these offences under the Competition Act and ensuring that Canadians do not fall prey to such scams."
According to the Prohibition Order, Global Online Systems Inc. and its directors, Deborah Jane Stoltz and Marilyn Thom, have agreed to:
- Pay a $150,000 fine;
- Disclose the average income actually received by all participants in GOLS;
- Inform all of its existing distributors and participants of the terms of the Order; and
- Not become involved directly or indirectly in any business operation engaged in a scheme of pyramid selling.
For media enquiries, please contact:
Maureen McGrath
Senior Communications Advisor
Communications Branch
(819) 953-8982, or (613) 296-2187 (cell)
For general enquiries, please contact:
Information Centre
Competition Bureau
1-800-348-5358
Herbalife Sued for Fraud and Negligence
Stephen Barrett, M.D.
Phyllis Chen, a 29-year-old woman who acquired acute liver problems after taking Herbalife products has filed suit against the company and several other companies that manufacture its products and ingredients. The complaint (shown belkow) states that Chen suffered acute liver problems that required hospitalization as a result of using a combination of Herbalife products. Chen is suing Herbalife for breach of express warranty, breach of implied warranty, strict liability, negligence, and fraud. In a press release, Chen's attorney Christopher Grell stated thatChen's health had deteriorated within a few months after she began taking 23 Herbalife products. She could not hold food down, was nauseous, and was constantly fatigued. Her symptoms stopped when she stopped taking the products and returned (worse) after she resumed their use. After noticing blood in her urine, she sought emergency care. The doctors opined that the most likely cause of her liver problems were the Herbalife products and instructed her to stop taking them immediately. Two recent journal articles have reported on 22 other cases of severe liver toxicity associated with the use of Herbalife products. [Schoepfer AM and others. Herbal does not mean innocuous: 10 cases of severe hepatoxicity from dietary supplements from Herbalife. Journal of Hepatology 47:521-526, 2007 and Elinov E and others. Association between consumption of Herbalife nutritional supplements and acute hepatotocity. Journal of Hepatology 47:514-520, 2007] Tests commissioned by the Fraud Discovery Institute (FDI) have found high levels of lead in at least two of the Herbalife products that Ms. Chen had consumed.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
UNLIMITED JURISDICTION
YUGING "PHILLIS" CHEN,
v. HERRALIFE INTERNATIONAL, INC.,Plaintiff, HERBALlFE INTERNATIONAL OF AMERICA, INC., HERBALIFE LTD., NBTY aka NATURE'S BOUNTY, PHARMACHEM LABORATORJES, JB LABS, FINE FOODS (ITALY), AMERICAN INGREDIENTS, INC, AND DOES 1 THROUGH 100, INCLUSIVE, Defendants. |
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Case No. BC392373
COMPLAINT FOR DAMAGES
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GENERAL ALLEGATIONS
Plaintiff, YUGING "PHILLIS" CHEN ("Plaintiff"), Complains of Defendants, and Each of Them,1. Plaintiff is a resident of the State of California.
2. The true names and capacities, whether individual, corporate, associate, govemmen.tal or otherwise, of Defendants FIRST DOE through ONE HUNDREDTH DOE, inclusive, are unknown to Plaintiff at this time. who therefore su.es said Defendants by su.ch fictitious names, When the true names and capacities of said Defendants have been ascertain ed, Plaintiff will amend this complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each Defendant designated herein as a DOE is responsible, negligently or in some other actionable manner, for the events and happenings hereinafter referred to, and caused injuries and damages proximately thereby to the Plaintiff, as herein after alleged.
3. At all times herein mentioned, each of the Defendants was the agent, servant, employee and/or joint venture of his co-defendants, and each of them, and at all said times, each Defendant was acting in the full course and scope of said agency, service, employment and/or joint venture.
4. Plaintiff is informed and believes, and thereon alleges that at all times herein mentioned, Defendants HERBALIFE INTERNATIONAL, INC. is a corporation organized and existing under and by virtue of the laws of the State of California and that said Defendant was and is authorized to do and is doing business in the State of California. This Defendant distributes, markets and sells Herbalife products.
5. Plaintiff is informed and believes, and thereon alleges that at all times herein mentioned, Defendant HERBALIFE INTERNATIONAL OF AMERICA, INC., is a California corporation organized and existing under and by virtue of the laws of the State of California, or the laws of some other state jurisdiction, and that said Defendant is authorized to do and is doing business in the State of 'California. This Defendant distributes, markets and sells Herbalife products.
6. Plaintiff is informed and believes, and thereon alleges that at all times herein mentioned, Defendant HERBALIFE, LTD. is a corporation organized and existing under and by virtue of the laws of the State of California, or the laws of some other state jurisdiction, and that said Defendant is authorized to do and is doing business in the State of California. This Defendant distributes, markets and sells Herbalife products.
7. Plaintiff is informed and believes, and thereon alleges that at all times herein mentioned, Defendant NBTV aka NATURE'S BEAUTY is a corporation organized and existing and by virtue of the laws of the State of California, or the laws of some other state jurisdiction, and that said Defendant is authorized to do and is doing business in the State of California. This Defendant manufactures, assembles and distributes products Herbalife sells to the public.
8. Plaintiff is informed and believes, and thereon alleges that at all times herein mentioned, Defendant PHARMACHEM LAB ORA TORIES ("PharmaChem") is a corporation organized and existing and by virtue of the laws of the State of California, or the laws of some other state jurisdiction, and that said Defendant is authorized to do and is doing business in the State of California. This Defendant manufactures, assembles and distributes products sold to the public by Herbalife.
9. Plaintiff is informed and believes, and thereon alleges that at all times herein mentioned, Defendant JB LABS is a corporation organized and existing and by virtue of the laws of the State of California, or the laws of some other state jurisdiction, and that said Defendant is authorized to do and is doing business in the State of California. This Defendant manufactures, assembles and distributes products sold to the public by Herbalife.
10. Plaintiff is informed and believes, and thereon alleges that all times herein mentioned, Defendant FINE FOODS (IT AL Y) is a corporation organized and existing and by virtue of the laws of the State of California, or the laws of some other state jurisdiction, and that said Defendant is authorized to do and is doing business in the State of California. This Defendant provides the constituent ingredients used by the manufacturers to make the Herbalife products sold to the public.
11. Plaintiff is informed and believes, and thereon alleges that all times herein mentioned, Defendant AMERICAN INGREDIENTS, INC. is a California corporation organized and existing and i by virtue of the laws of the State of California, or the laws of some other state jurisdiction, and that said Defendant is authorized to do and is doing business in the State of California.
12. At all times herein mentioned, each of the Defendants was the successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in an entity researching, manufacturing, labeling, distributing, offering for sale, selling, inspecting, marketing, warranting, rebranding, manufacturing for other, packing and advertising certain products, the name of which are: Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products"). Said entities shall hereinafter collectively be called "alternate entitles." Each of the herein named Defendants are liable for the tortuous conduct of each successor, successor in business, successor in product line, or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, subsidiary, whole or partial owner, or wholly or partially owned entity, or entity that manufactured, labeled, distributed, offered for sale, sold, inspected, marketed, warranted, rebranded, manufactured for others and advertised certain products, the names of which are: Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products").
13. The Defendants, their "alternate entities", and each of them, are corporations organized and existing under and by virtue of the laws of the State of California, or the laws of some other state or foreign jurisdictions, and said Defendants, their "alternate entities", and each of them, were and are authorized to do and are doing business in the State of California, and said Defendants, their "alternate entities", and each of them, have regularly conducted business in the State of California.
14. At all times herein mentioned, Defendants, their "alternate entities", and each of them, were and are engaged in the business of researching, manufacturing, labeling, distributing, offering for sale, selling, inspecting, marketing warranting, rebranding, packaging and advertising a certain product, the name of which are: Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products").
15. Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") are sold to the public as a Food Supplement, not a drug. These products are represented as containing no harmful ingredients. These products are represented to safe, all natural nutrition health products.
16. The Defendants, their "alternate entities", and each of them, knew that these representations were false, based on knowledge they had and chose to conceal this from the Plaintiff, and the general public.
17. At all times mentioned, and each of them, knew or in the exercise of reasonable care, should have known that Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") were not safe products that could and did cause adverse reactions and injury, including severe liver injury.
18. At all times mentioned, Defendants, and each of them, knew or in the exercise of reasonable care, should have known that Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, Herbalifeline, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") were of a nature that if it were not properly manufactured, compounded, packaged, labeled, designed, constructed, fabricated, distributed, tested, analyzed, recommended, merchandised, advertised, inspected, promoted, supplied, sold, purchased, prescribed and administered to consumers for the use and purpose for which it was intended, it was likely to cause injury to Plaintiff and the general public.
19. Prior to the herein described injury of Plaintiff, the Defendants, and each of them, manufactured, compounded, packaged, labeled, designed, constructed, fabricated, distributed, tested, analyzed, recommended, merchandised, advertised, inspected, promoted, supplied, sold, purchased, . prescribed and administered the Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") with its components, ingredients, and constituents, which was intended by said Defendants to be used for the purpose of nutritional support and weight loss.
20. Beginning on or about October or November 2007, and continuing through April 1, 2008, Plaintiff began consuming "The Products" which were manufactured, compounded, packaged, labeled, designed, constructed, fabricated, distributed, tested, analyzed, recommended, merchandised, advertised, inspected, promoted, supplied, sold, purchased, prescribed and administered by the Defendants, and each of them.
21. Plaintiff was blamelessly ignorant of the cause of her injuries which included liver injury and toxicity until sometime in mid-May 2008 when Plaintiffs treating doctors suspected that Plaintiff’s injuries and liver toxicity was probably related to "The Products" and informed Plaintiff that her liver injury was most likely caused by "The Product."
22. Plaintiff was blamelessly ignorant of Defendants' wrongdoing or that "The Products" were defective and caused Plaintiff injury until late May, early June 2008 after Plaintiff reviewed articles attributing liver toxicity to "The Products" including reports that "The Products" contained levels of lead in excess of the maximum daily allowable limits set by California law known as Proposition 65.
23. Plaintiff could not, by the exercise of reasonable diligence, have discovered such facts at an earlier time, since the cause of her injury could not have been discovered until Plaintiffs injury was manifested and sufficient facts were made known or available to Plaintiff concerning "The Products'" role in causing Plaintiffs injury, and that Plaintiffs injuries were caused by Defendants' negligence and/or defect in "'The Products."
24. Furthermore, no literature or warning was ever furnished to Plaintiff by Defendants regarding the harmful and adverse properties associated with use of "The Products" and their component ingredients.
25. To the contrary, Defendants denied and fraudulently, and with reckless disregard for the safety of Plaintiff, concealed this information from Plaintiff which Defendants knew about because of published peer-reviewed medical articles and, at least, one county's decision to ban the sale of Defendants' products in that county.
26. As a proximate result of the herein described conduct of Defendants, and each of them, Plaintiff was caused to suffer grievous, serious and severe injuries, thereby causing Plaintiff damages as set forth below.
27. As a further proximate result of the herein described conduct of Defendants, and each of them, Plaintiff was required to, and did, employ physicians and surgeons to examine, treat and care for her, and Plaintiff further did incur hospital, medical and incidental expenses. The exact amount of said medical expenses are unknown at this time, but Plaintiff will seek leave to amend this pleading and set forth the exact amount thereof when the same has been asceliained.
28. As a further proximate result of the said conduct of Defendants, and each of them, Plaintiff suffered damages for pain and suffering, and loss of earnings. The exact amount of same is unknown to Plaintiff at this time and she will amend this complaint when the same has been ascertained.
29. Prior to the dates upon which Plaintiff was exposed to and ingested "The Products" and their component ingredients, Defendants, and each of them, knew that said products were dangerous and unsafe. In spite of their knowledge of said dangerous properties, and with conscious disregard of the persons who would ingest "The Products", Defendants, and each of them, willfully and knowingly placed "The Products" on the market, knowing that they would be sold, and used without knowledge of the hazards attendant thereto. Defendants, and each of them, failed to take appropriate action to cure the nature of said defects or to appropriately warn users of the dangerous properties of "The Products." Said Defendants, and each of them, thereby acted with malice towards Plaintiff and Plaintiff accordingly request that the trier of fact, in the exercise of its sound discretion, award Plaintiff punitive damages for the sake of example and for the purpose of punishing said Defendants for their conduct, in an amount reasonably related to Plaintiffs actual damages and Defendants' wealth, and sufficiently large to be an example to others and to deter these Defendants and others from engaging in similar conduct in the future.
FIRST CAUSE OF ACTION FOR BREACH OF EXPRESS
WARRANTY BROUGHT BY PLAINTIFF AGAINST DEFENDANTS
30. Plaintiff hereby incorporates by reference, as if fully set
forth herein, each and every allegation contained in Paragraphs 1
through 29, inclusive, of the complaint herein. 3l. Defendants, and each of them, manufactured, compounded, packaged, designed, distributed, tested, constructed, fabricated, analyzed, recommended, merchandised, advertised, promoted and sold Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") which were intended by Defendants, and each of them, to be used as a nutritional supplement to improve health.
32. At all times herein mentioned, Defendants, and each of them, by its officers and director utilized advertising media to urge the use "The Products" and expressly warranted and represented t Plaintiff, and members of the general public that "The Products" were a safe all natural supplement that could be used for as long as necessary to assist in maintaining a healthy state of being.
33. At the time of making said express warranties, Defendants, and each of them, had knowledge of the purpose for which "The Products" and their component ingredients ("The Products" were to be used and warranted the same to be, in all respects, fit, safe and effective and proper for such purpose.
34. Plaintiff and the general public reasonably relied upon the skill and. judgment of the Defendants, and each of them, and upon said express warranties and representations.
35. Said Defendants, and each of them, possessed superior knowledge and failed to disclose said knowledge to Plaintiff and the general community that Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") were not a safe all natural product but was an unsafe product which contained harmful ingredients, unsafe ingredients, including, but no limited to, contaminants, including, but not limited to, lead.
36. Said warranties and representations were untrue in that Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") caused Plaintiffs damages and of the injuries because "The Products" were unsuited and unsafe for the sue for which it was intended, and could and did, thereby proximately cause Plaintiff to sustain damages and injuries as herein set forth.
37. As soon as the true nature of the product and the fact that the warranty and representation were false were ascertained, Defendants, and each of them, were duly notified, as required by law.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth.
SECOND CAUSE OF ACTION FOR BREACH OF IMPLIED
WARRANTY BROUGHT BY PLAINTIFF AGAINST DEFENDANTS
38. Plaintiff hereby incorporates by reference, as if fully set
forth herein, each and every allegation contained in Paragraphs 1
through 37, inclusive, of the complaint herein. 39. At all times herein mentioned, the Defendants, and each of them, manufactured, compounded, packaged, distributed, recommended, merchandised, advertised, promoted, sold, purchased, prescribed and administered the aforesaid Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products"), as hereinabove described, and prior to the time that Plaintifl used said products, Defendants, and each of them, impliedly warranted to Plaintiff and the general public that "The Products" was of merchantable quality and safe for the use for which it was intended, a dietary supplement.
40. Plaintiff relied on the skill and judgment of Defendants, and each of them, in suing Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products").
41. "The Products" were unsafe for their intended use and it was not of merchantable quality, a warranted by the Defendants, and each of them, in that "The Products" had dangerous properties when put to its intended use became unsafe in that it would cause serious and severe injuries including, but no limited to, liver injury and toxicity requiring hospitalization. The said defective "Products" did proximately cause Plaintiff to sustain injuries as herein set forth.
42. After Plaintiff was made aware of the injuries as a result of said defective products, notice was duly given to the Defendants, and each of them, of the breach of said warranty.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth.
THIRD CAUSE OF ACTION FOR STRICT LIABILITY
BROUGHT BY PLAINTIFF AGAINST DEFENDANTS
43. Plaintiff hereby incorporates by reference, as if fully set
forth herein, each and every allegation contained in Paragraphs 1
through 42, inclusive, ofthe complaint herein. 44. Defendants, and each of them, manufactured, compounded, packaged, designed, distributed, tested, constructed, fabricated, analyzed, recommended, merchandised, advertised, promoted and sold Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products"), which were intended by Defendants, and each ofthem, to be used as a dietary supplement.
45. At all times herein mentioned, Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") were defective and unsafe for its intended purpose by reasons of defects in its component ingredients manufacturing, compounding, testing packaging, labeling, warnings, lack of warnings, over promotion, and contents.
46. Defendants, and each of them, knew that "The Products" were ingested by Plaintiff and was ngested by Plaintiff without inspection for defects arising from, but not limited to, the manufacturing compounding, testing, labeling, packaging, merchandising, and advertising processes of said Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products").
47. At all times herein mentioned, said defective products, were being used by Plaintiff in the manner in which it was intended to be used and/or misused in a manner which was reasonably foreseeable by Defendants, and each of them. As a direct and proximate result of said defective products, Plaintiff sustained the injuries and damages as herein alleged.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth.
FOURTH CAUSE OF ACTION FOR NEGLIGENCE
BROUGHT BY PLAINTIFF AGAINST DEFENDANTS
48. Plaintiff hereby incorporates by reference, as if fully set
forth herein, each and every allegation contained in Paragraphs 1
through 47, inclusive, of the complaint herein. 49. At all times herein mentioned, Defendants, and each of them, so negligently and carelessly manufactured, compounded, packaged, labeled, designed, constructed, fabricated, distributed, tested or failed to test, analyzed, recommended, merchandised, advertised, inspected, promoted, supplied, sold purchased, prescribed and administered the afore described Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") and thereby administered said product to Plaintiff for the purpose for which it was intended to be used.
50. As a proximate result of the aforesaid carelessness and negligence of the Defendants, and each of them, "The Products" caused severe damages and injuries as herein set forth.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth.
FIFTH CAUSE OF ACTION FOR FRAUD
BROUGHT BY PLAINTIFF AGAINST DEFENDANTS
51. Plaintiff hereby incorporates by reference, as if fully set
forth herein, each and every allegation contained in Paragraphs 1
through 50, inclusive, of the complaint herein. 52. Defendants, and each of them, manufactured, compounded, packaged, designed, distributed tested, constructed, fabricated, analyzed, recommended, merchandised, advertised, promoted and sole Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") which were intended by Defendants, and each ofthem, to be used as a safe nutritional, all natural product.
53. At all times herein mentioned, Defendants, and each of them, falsely and fraudulently represented to Plaintiff and members of the general public that the product was safe and that:
1) Adverse reactions had not been reported; and that 2) Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") were safe, all natural products.The representations made by Defendants were, in fact, false. In truth, Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") were unfit for human use as dietary supplements and were, in fact, unsafe and defective products containing harmfu ingredients, including heavy metals such as lead, a known carcinogen.
55. Said Defendants, and each of them, possessed superior knowledge and failed to disclose and caused said failure to disclose said knowledge to Plaintiff and the general community.
56. At all relevant times when Defendants, and each of them, made and/or concealed the aforementioned representations and information regarding the safety and efficacy of Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products") to Plaintiff, the agent of Plaintiff, the medical comnunity, and the members of the general public who were ignorant of the falsity of said Defendants' representation and reasonably believed them to be true. In reliance upon these representations, Plaintiff was induced to, and did, take Formula 1 Nutritional Shake Mix, Formula 2 Multivitamin Complex, Cell Activator, Snack Defense, Total Control, Cell-V-Loss, Herbal Concentrate, Aminogen, Thermo-Bond, N-R-G Nature's Raw Guarana, Niteworks Powder Mix, Tri-Shield, HerbaIifeIine, Mega Garlic Plus, Xtra-Cal, Tang Kuei Plus, Triple Berry Complex, Ocular Defense Formula, Herbal Aloe Drink Concentrate, Active Fiber Drink Mix, Florafiber, 21-Day Herbal Cleansing, Garden 7, Schizandra Plus, RoseOx, Best Defense, Bulk & Muscle Formula Protein Drink Mix and their component ingredients ("The Products"). Had Plaintiff known the actual facts, she would not have ingested The Products and their component ingredients. The reliance of Plaintiff, the agents of Plaintiffs, the medical community and the members of the general public upon Defendants' representation was justified because the representations were made by individuals and entities who appeared to be or were in a superior position to know the true facts.
57. As a proximate and direct result of Defendants' fraud and deceit and the facts alleged herein, Plaintiff was caused to sustain the injuries and damages herein set forth.
58. By reason of said Defendants' fraud, malice, oppression, willful and wanton misconduct with conscious and reckless disregard of Plaintiff and the general public's well-being, Plaintiff is entitled tc exemplary damages.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, in the First through Fifth Causes of Action as follows:
- For general damages in an amount well in excess of the minimum jurisdictional amount required by this Court;
- For exemplary damages;
- For special damages according to proof;
- For interest at the rate of 10% per annum from the date of filing the complaint until judgment is paid; and
- For such other and further relief as the Court may deem just and proper.
LAW OFFICES OF CHRISTOPHER E. GRELL
The Broadlake Plaza
Christopher E. Grell (SBN. 88498)
Richard F. Rescho (SEN 108086)
360 22ND Street, Suite 320
Oakland, CA 94612
Telephone: (510) 832-2980
Attorneys for Plaintiff
PHILLIS CHEN
