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N.J. Agencies To Sue Diet-Pill Maker

AG says Cytodyne Technologies' ads were deceptive

Jul 14, 2003 | The Star-Ledger

The New Jersey Attorney General's Office and the state's Division of Consumer Affairs will file a lawsuit today against Cytodyne Technologies for deceptively marketing two dietary supplements.

One of the products, Xenadrine RFA-1, was a top-selling weight-loss pill until it was yanked from the market earlier this year because of a controversy over ephedra, its main ingredient. The other supplement, Xenadrine EFX, does not contain ephedra.

The two agencies allege Cytodyne Technologies violated the state's consumer fraud act by using false and misleading advertisements that exaggerated benefits and downplayed risks of the pills.

The lawsuit, a copy of which was obtained by The Star-Ledger, also alleges five New Jersey doctors, paid to endorse the products, deceived consumers by giving the products a false legitimacy.

"The data we have examined tells us ephedra is dangerous, and those health risks are not being disclosed by the manufacturers," state Attorney General Peter Harvey said in an interview late Friday.

Ephedra is derived from the Chinese herb ma huang and has come under fire by critics who say it causes strokes and heart problems. It was named by authorities as a factor in the death of a Baltimore Orioles pitcher in February.

The lawsuit, which authorities intend to file today in state Superior Court in Monmouth County, seeks to stop the marketing of Xenadrine EFX, which Cytodyne began selling a year ago.

The case could mark the start of a more aggressive monitoring of New Jersey's dietary supplement industry. Many supplement makers are widely criticized for outlandish marketing claims.

An executive for Cytodyne declined to respond to specific allegations because he had not seen the complaint.

"Cytodyne stands behind the truthfulness of our advertising claims and the quality of our products," said Stephen Stern, executive vice president and general counsel of Phoenix Laboratories and Cytodyne LLC.

Last month, Cytodyne Technologies sold its licensing and marketing rights to Phoenix Laboratories, a contract manufacturer in Hicksville, N.Y. Cytodyne LLC distributes the company's products, which include sports bars.

Cytodyne Technologies was located in Manasquan until last month. Cytodyne LLC is operating out of Hicksville.

The lawsuit alleges Cytodyne misled consumers about the possibility of adverse side effects from Xenadrine RFA-1 and continues to use the same marketing tactics with the new version. Harvey said Xenadrine EFX contains ingredients that may cause the same effects as the ephedra-based predecessor.

Part of the suit focuses on magazine and Internet advertising that occurred between 1997 and this year. The suit also accuses Cytodyne of omitting and concealing information in its advertising for the new Xenadrine product.

It is not the first time advertising has landed the company in court.

Earlier this year, a California court ordered the company to pay in excess of $12.5 million to consumers who had purchased its weight-loss supplements. The court said the company's before-and-after testimonials were false and that certain studies Cytodyne used to market its products were misrepresented.

Cytodyne is just one of the companies that have profited from sales of the ephedra-based pills. In New Jersey, NVE Pharmaceuticals and TrimSpa also have heavily marketed diet pills containing ephedra.

Some estimates have put the business generated by such supplements at $3 billion a year. But ephedra has become increasingly controversial.

Baltimore Orioles pitcher Steve Bechler, 23, was using Xenadrine RFA-1 when he died during spring training in February. His body temperature had reached 108 degrees.

Bechler's death unleashed criticism of the dietary supplement companies using ephedra and the Food and Drug Administration for a lack of action to protect consumers.

The agency has maintained it does not have the power to pull dietary supplements from the market unless it can prove they are unsafe.

"We can't, in New Jersey, wait for the FDA to act," Harvey said. "The FDA has a myriad of rules and regulations. It could take years for them to take action."

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