As reported by NutraIngredients-USA last year, Hi-Tech Pharmaceuticals, Inc, filed a suit against Pieter Cohen, Clayton Bloszies, Caleb Yee, and Roy Gerona alleging a study published in Drug Testing and Analysis and subsequent comments in the press were defamatory. Hi-Tech was seeking $50 million in compensatory damages and $150 million in punitive damages for libel and slander.
The paper reported that BMPEA (beta-methylphenylethylamine) was found in varying quantities in 11 of 21 dietary supplements tested whose formulations were listed as being based on Acacia ridigula extracts.
Following Cohen’s paper US Senators Dick Durbin, D-IL and Richard Blumenthal, D-CT and well as US Sen. Chuck Schurmer, D-NY, called on FDA to ban BMPEA.
In response, Hi-Tech alleged that the Defendants' public communications violated Georgia's Uniform Deceptive Trade Practices Act, because Cohen et al disparaged Hi-Tech and its products.
In a press release released by Hi-Tech on April 29, 2015, Jared Wheat, President of Hi-Tech Pharmaceuticals, stated: “Defendants Cohen, Bloszies, Yee, and Gerona have published and/or uttered multiple false and malicious statements about the safety of dietary supplements containing Acacia rigidula manufactured by Hi-Tech and others, with the intent to incite enforcement action against Hi-Tech from the FDA and to defame and disparage Hi-Tech's products and commercial reputation.”
Motion to dismiss
According to court documents, however, only Dr Cohen was ever served with Hi-Tech’s complaint, and that the plaintiff did not move for the Clerk of Court to enter default against any of the other defendants, leading the court to conclude that no other defendants were served.
District Court Judge Steve Jones granted Dr Cohen’s motion to dismiss the case because Dr Cohen’s actions do not come within Georgia's Long-Arm Statute.
“The uncontroverted evidence in the record is that the testing done for the article was conducted in California and the research and writing of the article took place in Massachusetts,” wrote Judge Jones. “Thus, any tort of disparagement would have potentially occurred in either of those locations and not in Georgia. Under Georgia law, the fact that Plaintiff claims it has suffered injury from the article in Georgia is not sufficient to establish contact under Georgia's Long Arm Statute.”
“The Court finds that none of Plaintiffs allegations show that Defendant Cohen either intentionally aimed any conduct toward the Georgia forum or that he purposefully availed himself of the Georgia forum,” added Judge Jones. “There are simply no contacts directed at the Georgia forum at all.
“Plaintiff also has not alleged any facts in the complaint to show that Defendant Cohen would have understood that the publication of the article or any comments he made would have an impact on a Georgia Plaintiff. ln fact, the specific statements to which Plaintiff takes umbrage never mention Plaintiff, but rather focus on beta-methylphenylethylamine ("BMPEA"). Plaintiff is mentioned as a manufacturer of certain products that were tested”
BMPEA & A. rigidula
Dr Cohen's paper built on a study by FDA scientists published in the in the Journal of Pharmaceutical and Biomedical Analysis (Jan 2014, Vol. 88, pp. 457-466), which concluded: “Given the low natural abundance of PEA it the plant materials, it appears nearly impossible to achieve the amounts of [BM]PEA found in the dietary supplements by formulating them with plant material or extracts of A. rigidula. [BM]PEA, a positional isomer of AMP, was found in 9 of 21 dietary supplements analyzed at levels ranging from 963 to 60,500 micrograms per gram. We found no safety data on the biological effects of this isomer in humans.”
The FDA has also taken a stance on BMPEA, sending warning letters to five companies over their use of the ingredient, including Hi-Tech. The Agency only sent letters to company with BMPEA listed on the products labels, because FDA considers BMPEA to not be a lawful dietary ingredient, and therefore products containing it are considered adulterated. However, the FDA warning letters do not address whether A. rigidula is a legal dietary ingredient.
The lawyers representing Hi-Tech Pharmaceuticals were contacted for comment but no response had been received prior to publication.