Supplement liability could hinge on athlete’s lawsuit

A swimmer who missed the Olympics says she doesn’t have a drug problem: A Texas supplement company does.  Jessica Hardy claims in a lawsuit that AdvoCare International Co. caused her to be disqualified from the U.S. team because the products Arginine Extreme and Nighttime Recovery were contaminated with clenbuterol, an anti-asthma medication similar to albuterol, that is banned. The legal battle could have far-reaching effects on company liability.

Advocare has taken the unusual step of suing Hardy for defamation, saying that her claims are infringing on the company’s ability to do business, especially with swimmers. In an article in the Dallas Morning News, company attorney Allison Levy says that Advocare wants to clear its name.

The two sides have conducted laboratory tests with conflicting results. Informed-Choice says Advocare’s products are clean; Anti-Doping Research says that the products contain clenbuterol. The back and forth in court could take years. If there is a trial, the outcome could have a ripple effect on the supplement industry. A win by Advocare might help companies that face civil charges from other athletes who claim that poor manufacturing practices damaged their careers and incomes.

If Hardy prevails, supplement makers might face higher product-liability insurance costs. They may also have to shy away from lucrative athlete markets and could lose valuable endorsements. Even if the matter is privately settled, the legal entanglement again highlights the need for have a good manufacturing process. Advocare’s defense could depend mightily on demonstrating that it took appropriate care.

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.

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4 Comments

  1. zylonet said:

    Where is a manufacturer supposed to buy his raw materials? Everything comes from China which is the wild west. A difficult position for everyone. What are the odds that Advocare would have spiked such an low power product: none.

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