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The recent recalls of peanuts and pistachios brings to mind public concerns about the safety of all foods, including nutritional supplements. There’s good reason to be worried, if a recent report on Chinese slimming capsules is accurate. A study by German scientists found that the product contained sibutramine, which is banned for use as a dietary supplement in the United States.

The danger is only partly the ingredient; the FDA does approve the use of sibutramine as an appetite suppressant for weight loss. The greater worry is that the substance was not listed on the product label.  And sibutramine is the culprit du jour; there may be other undeclared — and possibly more harmful — ingredients that unwitting distributors and retailers are today offering to their American customers as being natural and supporting good health.

The research scientists warned in their report: “Products available without a prescription whose contents are claimed to be purely herbal may nonetheless contain synthetic substances in concentrations far above the therapeutic range and may be a cause of poisoning.”


The researchers found anecdotal evidence of people becoming ill in Germany and Poland. On Jan. 27, the FDA warned consumers not to take a dietary supplement called Venom Hyperdrive 3.0 because it contained sibutramine. The agency said in a statement that “the pills can substantially increase blood pressure and heart rate (pulse), and may present a significant risk for people with a history of heart disease, heart failure, irregular heart beats or stroke.”

Such is the stuff that lawsuits and stronger regulations are made of. The food poisoning incidents involving nuts are leading to civil and criminal action, multi-million dollar fines, and congressional calls for tighter regulation. The peanut recall could cost its industry as much as $1 billion, according to one estimate. The damage is bleeding into health food industry. An Oregon company that emphasizes healthful products, Paley’s, recalled some products because they might be tainted.

High-profile incidents with untested dietary supplements might lead to court and legislative action. At least dietary supplement one company recalled some of its stock of Venom because of safety concerns.

The German scientists formulated their solution in their report: “It would be desirable to implement the obligation to declare ingredients and dose. The marketability of the product must be checked, particularly in countries in which the ingredients are classified as prescription drugs and in which a pharmaceutically defined medicine is available.”

The U.S. system does not work that way. At present, self-reporting is more the norm.  That could change given consumer suspicions about food safety and the pressure on government to respond quickly and severely to the next food scare.


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.