Flavia Oliveira, the Brazilian cyclist who recently won a sentence reduction in a doping case, has filed suit against the supplement manufacturer who she says caused the violation.
Oliveira, who lives and races in the United States, was originally suspended for two years after testing positive for oxilofrine, an amphetamine class stimulant, at the Giro del Trentino Donne in July of 2009. Earlier this month, the International Court of Arbitration for Sport reduced her suspension to 18 months after finding that she had unintentionally ingested mythelsynephrine – the chemical equivalent of oxilofrine – while using a supplement marketed as Hyperdrive 3.0+.
While the World Anti-Doping Code places responsibility on athletes to know the ingredients of food supplements and other products, the panel found sufficient evidence to support Oliveira’s claim that the bottle of Hyperdrive 3.0+ she had used in 2009 did not list mythelsynephrine on its label. While the panel still found that a suspension was appropriate, it also ruled that the producer’s failure to accurately list its ingredients was enough of a mitigating factor to warrant a reduction in her penalty.
On Friday, Oliveira’s lawyers – California attorney Howard Jacobs and Dan Fleck of Wyoming – filed suit in Federal Court in the Northern District of California, seeking damages from ALR Industries, the company that produced and sold Hyperdrive 3.0+.
“I filed suit because … well, it’s not fair,” Oliveira told VeloNews. “It’s not fair that they (ALR) can sell something that doesn’t honestly say what is in it. It obviously caused me a direct problem, but there are a lot of people out there who don’t have to pee in a cup … they should be able to eat or drink something knowing that it doesn’t have something extra – even potentially dangerous – in it if it doesn’t say so on the label. Maybe this will send a message.”
Oliveira, the suit noted, is seeking unspecified general, special and punitive damages for the company’s alleged negligence, its breach of an implied warranty, intentional misrepresentation, negligent misrepresentation and the sale of a defective product.
In the 13-page complaint, Oliveira’s attorneys allege that the company made inaccurate representations about the “safety and quality” of its product on the label and but for that assurance, Oliveira would never have consumed it.
The suit contends that the manufacturer either knew or should have known that Hyperdrive 3.0+ contained substances that were not listed on the label.
While the supplement industry is not subject to strict Food and Drug Administration regulation, users of defective products have, in the past, successfully sued manufacturers on grounds similar to those outlined in Oliveira’s suit.
While much of the suit focuses on the manufacturer and its failings, perhaps the easiest claim to prove is that the company released a defective product into the stream of commerce. Known as a “strict liability” offense, plaintiffs need not prove negligence, recklessness or malice, but simply that the product was defective, or wasn’t what they said it was when it was sold.
Oliveira claims that the doping violation is a direct result of the company’s failure to properly label its product.
While Oliveira said she was pleased with the recent CAS ruling, she remains bothered by the reason she encountered the problem in the first place.
“I think the big thing is that I managed to show that I never intended to break the rules; that I’m not a doper,” she said. “I missed a lot of time, though. I only started racing in 2006 and I was just finding my stride. This completely threw a wrench into my progress and I pretty much have to start over.”
Oliveira said she had even sought ALR’s assistance during her appeal to CAS, asking for examples of past product labels in order to bolster her defense.
“They never responded; we’d call or write again and they never responded,” she said. “Finally, they came back to us the day before the hearing and said they would help out … as long as I signed a waiver, promising I’d never sue them.
“As you might have guessed, I didn’t sign it,” said Oliveira. “I think they picked the wrong little person to fight with.”
Author L. Rea, CEO of ALR Industries, acknowledged that Hyperdrive 3.0+ did, indeed, contain methylsynephrine, but added that has been included on the dietary supplement’s label.
“Methylsynephrine is a beta agonistic agent, which supports fatty acid release and its utilization for energy positively impacts mood and helps control hunger,” he write in an email submitted by his attorney to VeloNews. adding that all of ALR Industries’ supplements have been labeled in accordance with federal and state law.
“Hyperdrive 3.0+ states on its warning label that ‘(t)his product may contain substance(s) which are banned by various sports organizations,'” he said. “ALR Industries intends to vigorously defend this lawsuit and vindicate themselves from any alleged wrongdoing.”