There seems to be a growing trend amongst herbal supplement makers. Perhaps realizing that goat weed isn't exactly good at anything, manufacturers in foreign countries are now lacing the drugs with prescription medication. Or to put it in their more polite terms, "accidentally mislabeling" their products.
Since January 2011, the FDA has released the names of twenty-seven herbal weight loss supplements, sold online or sometimes even in stores, that are laced with prescription drugs. The most common drug is Sibutramine, also known as Meridia, which is an appetite suppressant. The drug was banned in the United States and many other countries because of increased amounts of heart complications versus patients using a placebo.
Tainted supplements is a hot class-action lawsuit area right now, due to the sheer number of supplements coming out of foreign countries that are not checked before being sold online or in small corner stores. Should the supplement cause cardiac complications, a personal injury claim could easily be maintained, but what about the general public that is simply mad that they were deceived?
Japan Rapid Weight Loss Diet Pills Yellow - Courtesy of the FDA
Fraud and breach of contract are two possibilities. The contract claim is simple. Manufacturer promised an herbal product, customer paid and then the manufacturer did not deliver what was promised. The only problem with contract actions is that they usually do not allow for punitive damages. That would most likely mean the customer who just ingested a banned drug only gets their $3.84 back via PayPal.
Fraud, however, is a beautiful remedy for those who took one of these "mislabeled" supplements, as fraud allows you to potentially receive punitive damages. Punitive damages are where those $30 million verdicts come from. The exact requirements of fraud vary according to state and federal law, but are generally that (1) there was a misrepresentation of a material fact, (2) by a person or entity who knows it to be false, (3) to a person who justifiably relies upon the misrepresentation and (4) is injured as a result.
Obviously, labeling a product as "all natural" or "herbal" and then lacing it with Sibutramine is a misrepresentation of a material fact. It can also be assumed, for the sake of argument, that it would be difficult to accidently lace an herbal weight loss supplement with a weight loss drug, so they probably knew that they were "mislabeling" their packages. It is also reasonable for a person to rely on the fact that an herbal supplement, sold as such, won't contain a deadly banned drug.
As for injury, an actual cardiac event is not necessary. The greater the harm suffered, the greater the damages, but merely ingesting a controlled substance without your knowledge should suffice on this requirement.
The one practical consideration left is, can your lawyer collect? Many of these supplement manufacturers are located abroad, selling online, and are impossible to track down and would be equally hard to collect your damages from. In the meantime, consumers might want to consider avoiding nutritional supplements from countries where the laws are not as strict as those at home. Maybe you should stick to American made products, as they are easier to sue should you get something that was "mislabeled."
- Find a Philadelphia Personal Injury Attorney (FindLaw)
- Meridia - Frequently Asked Questions (FindLaw's Learn About the Law)
- FDA: Stop Using Hydroxycut Weight Loss Products (FindLaw's Injured Blog)
- Public Notification: "Japan Rapid Weight Loss Diet Pills Yellow" Contains Hidden Drug Ingredient (FDA)