San Diego Union-Tribune
May 31, 2003
Author: Penni Crabtree

Judge tells N.J. diet pill firm to pay restitution

The New Jersey company whose herbal diet pill contributed to the death of a Baltimore Orioles pitcher earlier this year falsely marketed the product as safe and effective to California consumers, a San Diego judge ruled yesterday.

Superior Court Judge Ronald Styn ordered Cytodyne Technologies to pay $12.5 million in restitution to consumers who purchased Cytodyne's flagship ephedra product, Xenadrine RFA-1, between 1997 and June 2001, when the class-action lawsuit was filed.

The verdict is the latest in a series of setbacks for the multi-million dollar ephedra industry and the controversial herbal stimulant that has been linked to more than 100 deaths and thousands of serious side effects.

Earlier this week, Illinois became the first state to ban ephedra supplements, and other states, including California, are considering similar laws. Meanwhile, several companies have already exited the ephedra market and switched to ephedra-free products, including Cytodyne.

San Diego-based Metabolife International continues to market the nation's top-selling ephedra product, Metabolife 356. But the company also faces numerous personal injury and fraudulent advertising lawsuits, and in November was ordered to pay $4.1 million to four people who had strokes or heart attacks after taking Metabolife 356.

In a written statement, Cytodyne said yesterday's ruling is a "severe and inappropriate blow to the First Amendment rights of all companies which advertise their products in the state of California." The company said it will appeal the decision.

James Frantz, one of a team of attorneys who represented California consumers in the lawsuit, said the take-home message for ephedra companies is "you cant make safety and benefit claims unless you can back them up == and these claims aren't backed up."

Though much of the national scrutiny surrounding ephedra has been focused on safety concerns, yesterday's court decision takes aim at dubious advertising and marketing ploys that some diet supplement companies use to lure customers.

Yet the marketing practices used by Cytodyne to sell its Xenadrine RFA-1 also go to the heart of the larger ephedra safety issue, say ephedra critics. That's because the company's advertising claims of safety and weight loss benefits were based on the deceptive manipulation of data from scientific studies, some of which were paid for by Cytodyne.

In addition to the misleading use of scientific studies, Cytodyne also used professional models and bodybuilders to temporarily gain weight and then slim down for "before and after" photographs designed to mislead consumers. As with the research studies, the company also made false or exaggerated claims about the weight loss experienced by its models.

In his ruling, Judge Styn took particular aim at a Cytodyne-sponsored clinical study conducted by Dr. Carlon Colker of Peak Wellness, a Greenwich, Conn. based research company. Colker has been named in lawsuits in other states for allegedly conspiring with another ephedra company to produce deceptive ephedra research data.

In reality, the Peak Wellness study did not prove safety, according to Styn. And Cytodyne manipulated data and used percentages to exaggerate differences of little statistical importance between test subjects who took the diet pills and those who did not.

Styn called Cytodyne's most important witness Cytodyne president and founder Robert Chinery, as well as others on Cytodyne's payroll, including Colker, "not credible."

"Mr. Chinery's lack of candor can be seen throughout the trial," Styn said. "Cytodyne has consistently failed to produce documents that could have explained things, pushed researchers to make studies come out favorable to them and paid money to key people involved in providing information to them to ensure the information was favorable to them."

With Styn's ruling, Cytodyne's Robert Chinery follows in the footsteps of his late elder brother, Scott Chinery, who founded a now defunct New Jersey diet supplement company called L&S Research Corp.

The company and Scott Chinery, who died in October 2000 at the age of 40 from a heart attack, were ordered by the Federal Trade Commission in 1994 to pay a $1.45 million fine because of similar advertising shenanigans, including misrepresenting studies and using bogus "before and after: pictures in its advertising.

Cytodyne gained national notoriety in February when 23-year-old Baltimore Orioles pitcher Steve Bechler collapsed during practice. In March, toxicology tests confirmed Cytodyne's Xenadrine contributed to the athlete's death, according to a Florida medical examiner.