Liability Could Follow Ties to Dangerous DMAA

SAN FRANCISCO (CN) - The maker of diet supplements must face class-action claims that its product contains a powerful stimulant banned in professional sports, a federal magistrate ruled.

In a March complaint , Stephen Rush said Nutrex Research and its founders violated California's fair business laws by marketing the supplements as safe muscle builders despite alleged knowledge that the products were both ineffective and dangerous because of the use of the chemical stimulant DMAA.

Several countries and Major League Baseball have banned DMAA or geranamine, which is growing in popularity among young people as a designer "party pill."

Rush and his girlfriend bought two of Nutrex's products - Hemo Black Rage Ultra Concentrate and Lipo 6 Black Hers Ultra Concentrate - and used them for a month and a half. The couple said they felt jittery, had feelings of anxiety and a racing pulse, and felt exhausted if they did not use the products.

Rush, who represents the class of Nutrex users, says he was unaware that the products contained DMAA and equally unaware that DMAA can cause stroke or death.

In refusing to dismiss the class action Wednesday, U.S. Magistrate Laurel Beeler pointed out that Nutrex failed to directly address any of Rush's claims, "which is the ordinary way of challenging claims in a complaint."

"If Nutrex has not challenged all theories supporting Rush's claims, then the claims survive and the court does not need to address Nutrex's arguments on the merits," Beeler wrote.

"The court's analysis here is sufficient," she added. "Nutrex's motion to dismiss fails because it does not challenge all theories supporting Rush's claims. Thus, the court need not address Nutrex's theory-based (or sometimes fact-based) challenges." (Parentheses in original.)

"Rush represented specifically in his complaint that he was not suing under the FDCA or doing anything other than availing himself of consumer protections available under California law," according to the decision, abbreviating the Food, Drug & Cosmetic Act. "In its motion, Nutrex either sets up narrow challenges ... or argues legal concepts like preemption and primary jurisdiction on a very high level with modest analysis."

"At oral argument, the court made these observations and asked whether - given Nutrex's challenge only to some allegations, and not to all cognizable theories underlying the claims - Nutrex's motion was intended to educate the court about legal issues that might arise," Beeler added. "Nutrex did not really dispute this characterization. In any event, the court concludes that Nutrex did not attack the 'false advertising/deceptive practices' theory that supports all claims. Thus, its motion to dismiss fails."

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