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An internationally ranked tennis player is suing a Boca Raton, Fla., vitamin distributor, blaming his drug-related suspension from the pro tour on an herbal sleep-aid product that he says contained the tranquilizer Librium and a diuretic. In a negligence suit filed Oct. 1 in Palm Beach Circuit Court, Graydon Oliver of Coral Springs, Fla., claims that early in 2003, he purchased Relax-Aid from the defendant, Keimke Inc., doing business as Barry’s Vitamins and Herbs. He bought the product to treat sleep disturbances caused by his extensive air travel on the tennis tour. Located on Federal Highway in Boca Raton, Barry’s Vitamins manufactures and sells what it describes in advertising as “unique pharmaceuticals.” Oliver claims that the defendant “carelessly and negligently” offered for sale a contaminated product, “although it knew or should have known” of the contamination. Barry Nevins, president of Keimke, said that he was unaware of the lawsuit. “People do drugs all the time and then try to blame it on us,” he said in an interview. “That’s how lawyers get rich. As far as I know, none of our products have any medical drugs.” The case spotlights concerns about the lack of government regulation of dietary and herbal supplements, which were deregulated by Congress in 1994. Under the Dietary Supplement Health and Education Act, as long as makers and marketers of such products do not claim their products treat a particular disease, they can legally make generalized claims of beneficial effects. The problem is that consumers often have no way of knowing the active ingredients and what the potential health risks are. The Relax-Aid label lists the names of various herbs but does not describe their chemistry. Oliver, 26, is a graduate of Westminster Academy, a Christian high school in Fort Lauderdale, Fla. At the University of Illinois, he was a two-time tennis All-American and 2000 NCAA doubles champion. Since turning pro in 2002, he has been ranked as high as 37th in the world in doubles play. Like other professional sports governing bodies, the ATP, which oversees the men’s pro tour, requires drug testing of its athletes to ensure a level playing field and for public relations reasons. But in recent years, pro players in many sports in search of a competitive edge have experimented with unregulated herbal supplements. That has led to suspensions in which players have later been exonerated after additional, independent testing. Oliver’s attorneys are shareholder Douglas Reynolds and associate Sean Collin of Adorno & Yoss in Fort Lauderdale. Co-counsel is California lawyer Howard Jacobs, who frequently represents athletes in doping hearings before sports oversight bodies. He is a member at Forgie Jacobs & Leonard, in Thousand Oaks, Calif. Reynolds said that in addition to recovering damages for economic and noneconomic losses, Oliver is suing to force changes in the dietary supplement industry. He “wants to assist in the process of holding the manufacturers and retailers of these questionable products to account — for the benefit of athletes and the general public alike,” Reynolds said. VIOLATION INADVERTENT In March 2003, Oliver failed a mandatory drug test before the Nasdaq-100 Open in Miami. A diuretic, hydrochlorothiazide, was detected in his urine. Diuretics are prohibited because they can be used to disguise the use of other banned, performance-enhancing substances. The finding resulted in Oliver being suspended for two months from the ATP tour and having to forfeit $5,000 in prize money. In his lawsuit, he also claims other economic and noneconomic losses, including a “permanently tarnished reputation. The ATP — formerly the Association of Tennis Professionals — tribunal that sanctioned Oliver found that the sleeping aid product, Relax-Aid, was the source of the diuretic and that the violation was inadvertent. So it meted out relatively light punishment. But Oliver argues that the stigma of the doping charge will impact his future earnings. Oliver is asking for lost past wages and future earning capacity, as well as for the costs of his defense in the ATP proceedings and for past and future “pain, suffering and humiliation.” According to the ATP, when Oliver’s urine sample was tested at an internationally recognized laboratory in Switzerland, the analysis revealed the presence of hydrochlorothiazide, which is used to treat high blood pressure. Hydrochlorothiazide is a Class 1 prohibited substance under ATP rules. In August 2003, after Oliver was notified of the test results, he had a sample of Relax-Aid, the Keimke herbal product, tested by Nashville-based Aegis Sciences Corp., a federally certified forensic toxicology laboratory. According to the ATP, those tests revealed a concentration of hydrochlorothiazide consistent with those found in Oliver’s urine test. In his lawsuit, Oliver alleges that the Aegis lab also detected several other prescription medications in the herbal product, including chlordiazepoxide, the active ingredient in the sedative Librium. At a hearing in Fort Lauderdale last January, an ATP tribunal found that Oliver had “established the source of the prohibited substance as the herbal sleep aid.” The panel noted that the substance is “a medical drug that may only be obtained by a medical prescription issued by a licensed medical practitioner.” Oliver could have been suspended for up to one year, which would have effectively ended his career. But the tribunal used its discretionary powers to make a finding of “exceptional circumstances.” “A reasonably prudent person would not expect a prescription medicine to be present when it is not legal for it to be in the relevant substance,” the tribunal concluded. The tribunal was “absolutely satisfied” that the drug violation was “inadvertent” and “not intended to enhance sport performance.” But the panel also found that Oliver was aware of ATP training and warnings on the use of herbal supplements and failed to investigate the sleep aid as thoroughly as possible. For that, it ordered the reduced sanctions, including the two-month suspension. ‘CERTIFIED HERBOLOGIST’ On its Internet site, Barry’s Vitamins claims that “the Federal Government of the State of Florida [sic] has licensed the company as a clinical laboratory where today the professional staff performs FDA-cleared heart attack and stroke risk screening.” A Food and Drug Administration spokesman declined to interpret the meaning of the company’s claim. On the firm’s Internet site, Nevins, who is not a physician, claims that his “medical career” began in New York in 1977. He describes himself as a “certified natural health care practitioner” and “certified herbologist” who in 1999 “obtained a doctorate in divinity.” Graydon Oliver alleges that his purchase of Relax-Aid was made by his mother, Marie Oliver, acting as his personal representative, who visited Barry’s Vitamins and sought advice and treatment for his sleep problem from Nevins and store employee Robert Berger. Neither is a named defendant in Oliver’s suit. But in addition to Barry’s Vitamins, the defendants include “Does 1-3.” Berger claims to hold doctorates in biochemistry and biochemical pharmacology from the University of Tennessee and the University of Pennsylvania. The Daily Business Review was unable to confirm either claim. When she visited the store, according to the lawsuit, Marie Oliver explained to Nevins and Berger that her son was a pro athlete subject to mandatory drug testing. They allegedly recommended one of the store’s products, Relax-Aid, and assured her that the product contained no ingredients banned by any sports organizations. They allegedly described the product as “all natural, formulated by a physician, and bottled in an FDA-approved lab.” Nevins told the Review that his company sells Relax-Aid but denied that his company manufactures it. He described it as a widely sold herbal treatment made in China. Joanne Carrin, a spokeswoman for Attorney General Charlie Crist, said the AG’s office, which has jurisdiction over consumer fraud, has not brought any cases for consumer fraud against distributors of herbal or nutritional supplements. She said Crist has investigated sellers of herbal supplements for regulatory violations. But Oliver’s case involves allegations of contamination of herbal products with FDA-regulated drugs. Therefore, she said, the case falls under FDA jurisdiction; any state action would be pre-empted. An FDA spokesman said that the agency also has investigated the marketers of herbal supplements, typically for labeling violations. He said that civil and criminal penalties can follow. But he declined to comment on Barry’s Vitamins.

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