The New York Personal Injury Blog

Will Your Erectile Dysfunction Supplements Harm You?

Thinking about clicking on those seven emails you got this morning? You know, the ones with "performance enhancement" promises? Think twice. There seems to be a growing problem with herbal supplements being labeled as such, but actually containing prescription drugs or their chemical analogs.

Just on Friday alone, the FDA released the names of three supplements that contained hidden drugs, including "Instant Hard Rod," "ZenMaxx," and "RigiRX Plus." Since the beginning of the year, there have been nine names released in total. The first three contain a chemical analog of tadalafil, also known as Cialis. Others contain sildenafil, also known under the brand name Viagra.

These tainted supplements, which are a booming area of class-action law right now, are especially dangerous because users often turn to them in their time of need when they are unable to obtain the prescription alternatives through a doctor due to health reasons. These consumers then end up taking the exact same chemicals, or similar ones, without knowing it. Heart complications are the most common issue with the prescription drugs, and probably with the bootleg supplements, but what about the healthy user that is simply mad that he was deceived?

RigiRx Plus

Images courtesy of the FDA

Two possible legal theories to pursue are breach of contract and fraud. The contract claim is a basic textbook case. A supplement maker promised an herbal product, the user paid and then the pill maker did not deliver what was promised. The only problem with contract actions is that they almost always do not allow for punitive damages. That means the customer who just unknowingly ingested a prescription drug only gets their $10.76 back.

Fraud, however, is another workable remedy for those who took one of these "mislabeled" supplements, as fraud allows the judge or jury to assign punitive damages. This is where those big money verdicts come in. The exact requirements of fraud vary according to state and federal law, but were stated with flair in the New York case Orlando v. Kukielka.

"The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury ."

Yeah. That's lawyer speak. It can be translated as the manufacturer knowingly lied about what was in the pills and did so in order to deceive the desperate man seeking to spice up his love life. The desperate man must have also relied upon the labeling of the product as "all natural" or "herbal" reasonably and was injured as a result.

For the injury provision, actual medical complications are not a prerequisite. Merely ingesting prescription drugs without consent and knowledge should suffice.

The one issue with these lawsuits is the matter of collecting the judgment. These supplements are usually made in foreign countries under a variety of trade names and tiny corporations. If you sue one, they'll go bankrupt and disappear. Seven more will pop up. For now, those seeking sex life enhancement might want to order American made supplements, as they are easier to collect from when they sell something that has been "accidently mislabeled."

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