Topic: News: Advocare implicated in tainted supplements, positive drug test

[Chris Ⓐ LeRoux]

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Swimmer's fight with Carrollton nutrition firm AdvoCare makes waves
By GARY JACOBSON

A heated legal battle has erupted between AdvoCare International, a Carrollton nutrition company, and world-class swimmer Jessica Hardy over allegedly contaminated dietary supplements.

Hardy, a four-time world champion from California, says an AdvoCare product caused her to test positive for a banned performance-enhancing substance at last summer's Olympic trials, costing her a spot on the U.S. team in Beijing and derailing her career.

AdvoCare says that Hardy, in her effort to save her good name, is hurting its business by making false claims. Its products do not contain banned substances, AdvoCare says.

It's not unusual for an athlete to blame a supplement for a positive test and even sue. But it is unusual for a company to sue an athlete for defamation, especially one who used to endorse the company's products.

The high stakes of the dispute could extend beyond the reputations and economic standing of the principals to the multibillion-dollar supplement industry and two of the foremost testing facilities in the country. In the lawsuits, one lab says there was contamination, while the other says there wasn't.

The case also comes as issues of sports doping move back into the national spotlight with allegations surrounding baseball greats Alex Rodriguez, Barry Bonds and Roger Clemens.

AdvoCare filed its defamation complaint in federal court in Dallas on Jan. 16, saying it believed that Hardy was preparing to publicly blame the company. Hardy filed her negligence and product liability claim six days later in state court in Los Angeles. She is from Long Beach, Calif.

Based on the performances of the swimmers who replaced her in Beijing , Hardy contends that the positive test deprived her of at least three Olympic silver medals, including relay events. It also cost her endorsement opportunities and prize money, she claims.

Hardy, 21, competed at the University of California at Berkeley for two years before turning professional. At last summer's trials, she finished first in the 100-meter breaststroke, second in the 50-meter freestyle and fourth in the 100-meter freestyle.

Her attorney is Howard Jacobs, who has represented defrocked Tour de France champ Floyd Landis, as well as track stars Marion Jones and Tim Montgomery, all tarnished by doping scandals. Jacobs has also filed successful product liability claims against supplement companies.

Hardy's complaint says that her urine sample, which was taken July 4 at the Omaha, Neb., trials, tested positive for a "very low level" of the banned substance clenbuterol.

Clenbuterol is an anti-asthma medication similar to albuterol, which is commonly available in inhalers. Both substances can boost breathing capability for limited periods. Clenbuterol is also used to stimulate fat loss.

None of the other samples taken from Hardy at the trials tested positive.

In an Aug. 1 arbitration decision agreed to with the U.S. Anti-Doping Agency, Hardy did not contest the positive test, which brought an automatic two-year ban on competition. But she was granted extra time to investigate whether the result was caused by "exceptional circumstances" – either contamination or sabotage. Such a determination could shorten her penalty.

A spokeswoman for the anti-doping agency said the arbitration process is confidential and declined to comment. Jacobs declined to comment and said his client would not comment.

Standard of evidence

Some experts on legal and doping issues say that the drug testing system in sports is stacked against athletes and often presumes guilt instead of innocence. The standard of evidence is "comfortable satisfaction" rather than "beyond a reasonable doubt." Athletes have strict liability for anything that shows up in their tests, regardless of how it got there.

If AdvoCare prevails in the dispute, the case could deprive athletes of a ready scapegoat – blame the supplements – when they test positive, some legal and doping experts say.

If Hardy prevails and there are other high-profile cases, it could rekindle an interest in more regulation of the supplement industry, says Southern Methodist University law professor Nathan Cortez, who is an expert on U.S. Food and Drug Administration matters.

"It's kind of the Wild West out there," Cortez said of the supplement industry. So far, he says, the FDA has taken a hands-off approach.

AdvoCare says that it follows strict quality control and manufacturing standards.

Steve Mister, head of the Council for Responsible Nutrition, a trade group, says the supplement industry will be "very interested" in the outcome of the legal dispute. These kinds of cases show the high stakes involved for athletes and companies, he said.

Big industry

In the U.S., sales of dietary supplements totaled $23.7 billion in 2007, according to Nutrition Business Journal, with $2.5 billion of that for sports supplements.

AdvoCare general counsel Allison Levy said her company had revenue of $86 million last year with about 18 percent of that from sports performance products. Founded in 1993, AdvoCare was for several years one of the fastest-growing privately held companies in the area. It is a direct marketing firm and has about 50,000 independent distributors, Levy said.

The Hardy case, Levy said, has caused AdvoCare to lose some Olympic athlete endorsers and complicated its ability to attract new endorsers, especially swimmers. Former Cowboys running back Julius Jones is among more than 70 prominent athletic endorsers listed on AdvoCare's Web site.

"We want our name to be cleared," Levy said.

Drug testing labs

In an article he wrote for a legal publication last year, Jacobs, Hardy's attorney, said supplement contamination is common and "can vary from lot to lot, from bottle to bottle, and even from pill to pill."

The suit against AdvoCare says that "almost immediately" after she learned of the positive test, Hardy retained Don Catlin's Anti-Doping Research in Los Angeles. Catlin is one of the foremost sports doping experts in the world.

ADR tested the AdvoCare products Hardy used – either remaining samples from products she had with her at the trials or samples from the same product lots. The firm found clenbuterol in samples of Arginine Extreme and Nighttime Recovery.

AdvoCare's Web site says Arginine Extreme is a drink mix that contains amino acids and vitamins. Nighttime Recovery comes in caplets that contain amino acid and herbal compounds. The products are for those wanting to increase muscle endurance and improve training routines.

In its complaint, AdvoCare said it spent more than $60,000 on testing in the case, including samples from the same product lots used by Hardy, which were stored at AdvoCare and at manufacturers. Raw materials were also tested, Levy said. Testing was done by NSF International, a Michigan firm that certifies supplements for use in the National Football League.

Brent Kugler, AdvoCare's outside counsel, said Informed-Choice, another company that certifies supplements, also tested the same products and found no trace of clenbuterol.

"This brings into question the validity of the testing methods employed by ADR," Kugler wrote in an e-mail.

If there is no quick settlement to the dispute, legal experts anticipate that there could be a move to combine the two cases with both sides pushing for their most advantageous forum.

"Like sports, home field advantage counts for a great deal," says Michael Vitiello, a professor at McGeorge School of Law in Sacramento.

[Chris Ⓐ LeRoux]

Bump as a reminder. Don't risk your career for useless supplements. NONE can be trusted.

[Mike Cook]

Here is a link to the Arbitration Ruling between Jessica Hardy and the US Anti Doping Agency.

http://www.usantidoping.org/files/active/arbitration_rulings/AAA_CAS%20Decision%20-%20Hardy%20-%20May%202009.pdf

According to the ruling, Ms. Hardy tested positive for a prohibited substance, clenbuterol.  The normal penalty for testing positive for a prohibited substance is a 2 year suspension.  Ms. Hardy was able to reduce the normal 2 year penalty to a 1 year penalty by proving how the prohibited substance entered her body, and by showing that she bore no significant fault or negligence.  She presented evidence that the supplements she had been taking had tested positive for the presence of clenbuterol. 


Merely alleging that the positive test is the result of a contaminated substance is not sufficient to prove how the prohibited substance entered the athletes body and will not result in a reduction of the usual 2 year penalty.

[Chris Ⓐ LeRoux]

Thanks for the link Mike. LOL at USADA et al reducing the penalty. So much for 'take at your own risk.'

[Mike Cook]

The reduction from 2 years to 1 year is what is called for in the World Anti Doping Code, and so the USADA was just following the rules provided for in the WADC.

Compare the Hardy case to the recent case of Josephine Onyia.  Ms. Onyia, a Spanish hurdler tested positive for clenbuterol in a couple of world cup track and field competitions.  The Real Federacion Espanola de Atletismo (“RFEA”), the national governing body of the sport of athletics in Spain ruled that she had not committed a doping offense because the positive result might have been caused by contaminated meat and because they believed that ms. Onyia did not intentionally use a prohibited substance to enhance her performance.

The WADA appealed the RFEA decision to the Court for Arbitration of Sport.
Here is the link to that decision:
http://www.tas-cas.org/d2wfiles/document/3578/5048/0/Award%201805%20internet.pdf

The CAS overruled the RFEA decision and disqualified Ms. Onyia for 2 years.  The CAS ruled, as it has consistently done in the past, that there does not need to be a proven intent to ingest prohibited substances, nor does  it need to be proven that the prohibited substances enhanced performance.  They also held, consistent with prior rulings, that in order to reduce the 2 year DQ penalty, the athelete would need to show how the prohibited substance got into his or her body, and that she bore no significant fault or negligence.  Ms. Onyia's allegation that her positive clenbuterol result might have resulted from contiminated meat weren't enough to reduce the 2 year DQ penalty.

[Chris Ⓐ LeRoux]

The reduction from 2 years to 1 year is what is called for in the World Anti Doping Code

Really? Not doubting you since the various rules are too long and spread out to really read, if you have a life. But, how does that jibe with the 'at your own risk' policy? It doesn't. Intentions have nothing to do with it IMO. Take at your own risk says it all, or should. Pathetic system. IMO, the Olympic should just give up on drug testing. It causes more problems than it solves, i.e., those with money for lawyers can get their suspension reduced.

[Mike Cook]

I don't believe that if you have money for lawyers you can get your suspension reduced.  At least, it doesn't always work that way.  Ask Floyd Landis, the cyclist who won the 2006 Tour de France, then tested positive and had his results annulled and was suspended for 2 years. 

He had a bunch of lawyers in his appeals of the USADA decision and the CAS decision.  He made all kinds of challenges to the testing, without any factual basis for his arguments.  The CAS rejected his appeal and - in an unusual move for the CAS ordered that Landis pay $100,000 for the cost of litigation to the USADA - in addition to upholding the 2 year suspension.

Here is the Landis decision from the CAS

http://jurisprudence.tas-cas.org/sites/CaseLaw/Shared%20Documents/1394.pdf

[Chris Ⓐ LeRoux]

I am just referring to the Advocare supplement issue. Obviously, this athlete was able to have her suspension reduced without even a protestation of innocence. Do you think she would have got the reduction without a lawyer? Having dealt with USADA, I find that laughable. They don't even return phone calls if it isn't from a lawyer.