LG Sciences Planning "Other Actions" Against FDA Officers

LAS VEGAS LG Sciences, LLC, the bodybuilding supplement distributor, will not appeal a court decision that found the company was barred from suing an FDA officer under a so-called Bivens action.

But a source close to the company, who agreed to speak on condition of anonymity, said LG Sciences plans to take "some other actions" against FDA officers.

LG Sciences had sought to sue Judith Putz, an FDA compliance officer, who had verified a forfeiture complaint against more than 26,000 bottles of products belonging to the company.

Writing for the U.S. Court of Appeals for the Fifth Circuit, Circuit Judge Jeffrey Sutton ruled the action was barred by claim preclusion, a doctrine that prohibits a lawsuit that could have been brought in an earlier case.

The dispute dates back to April 2008 when FDA filed a forfeiture complaint against LG Sciences' products and U.S. Marshals seized them from the company's headquarters in Michigan. FDA had declared lab tests showed the bodybuilding products worth $1.3 million contained one or more unapproved food additives and/or new dietary ingredients and lacked scientific support for safe use.

FDA's action significantly harmed a company that was on track to post at least $9 million in 2008 sales and now is struggling to stay in business, the source said.

"If no one is: getting sick, dying, injured or ill, there is no reason to publicize an action until the company has their day in court," this person said. "By publicizing it, the damage is already done and the business is ruined."

LG Sciences had opposed FDA's seizure and filed a counterclaim but eventually entered into a consent decree, promising to destroy the products under the agency's supervision, according to Sutton's opinion. Two years later, LG Sciences filed the Bivens claim against Putz, claiming she conspired with other FDA officials to falsify information in the forfeiture complaint, violating the company's Fourth Amendment rights. Bivens is a 1971 decision from the U.S. Supreme Court that has been interpreted to allow for a cause of action against federal employees for constitutional violations.

"We believe that we had just cause to bring this action," LG Sciences said in a statement." The esteemed court felt that we should have raised this argument during the initial action.  While we respectfully disagree, we certainly support and thank the court for their opinion."

Las Vegas-based LG Sciences sells a number of bodybuilding products, including "andro supplements", "bodybuilding stacks", "testosterone boosters" and "weight control products". "LG Sciences believes that all men over 21 should be able to supplement their diet with health promoting hormones especially in light of the chemical estrogens and endocrine disrupting chemicals in our diet," the company said.

U.S. regulators and lawmakers have viewed bodybuilding products a multi-billion dollar industry with skepticism. In 2009, FDA issued a public health advisory, warning consumers to avoid bodybuilding products that are marketed as containing steroids or steroid-like substances. In a Sept. 29, 2009 hearing before the Senate Judiciary's Subcommittee on Crime and Drugs, an FDA official Michael Levy said the agency had sent 28 warning letters over the past five years to firms that were illegally marketing products that contained steroids.

"Currently the agency struggles to provide effective civil and criminal deterrents to prevent unscrupulous firms from fraudulently marketing these products," Levy testified.