Millions of Americans use dietary supplements, which can be sold without prior approval by the U.S. Food and Drug Administration. But so-called “adverse events” tied to some supplements — deaths and other serious health problems — have raised concerns about the policing of the industry. Some supplement makers also have come under scrutiny for making false claims about the health effects of their products and for use of banned ingredients, such as prescription medicines.
Such concerns have led the FDA to crack down on companies selling products with the stimulant DMAA, which has been linked to heart attacks, strokes and other illnesses. That prompted the Atlanta Journal-Constitution in 2013 to look at products of a Norcross supplement company that federal authorities have had their eye on for years.
That AJC investigation found that Hi-Tech Pharmaceuticals had continued to sell DMAA products after the crackdown. The newspaper’s coverage of the issue prompted several retailers to immediately pull the Hi-Tech products from their shelves. Following the story, the FDA also seized more than $2 million worth of supplements from company warehouses.
This is the latest of the AJC’s continuing coverage of cases involving the company and its owner, Jared Wheat.
Norcross dietary supplement company owner Jared Wheat, apparently the subject of a broad criminal investigation, collapsed and was taken from the federal courthouse by paramedics Friday after invoking his Fifth Amendment right against self-incrimination during a civil case against him.
Wheat was found on the floor of the men’s room outside U.S. District Judge Charles A. Pannell Jr.’s court room shortly after he had taken the stand. Wheat had taken the Fifth to 19 questions asked by an attorney for the Federal Trade Commission in a hearing aimed at determining whether he and an associate at Hi-Tech Pharmaceuticals Inc. should be jailed for failing to implement a product recall.
Friday’s proceedings went on for more than two hours after Wheat was removed from the courthouse. At the end of the day, Pannell said he would not order Wheat, 42, nor his associate, Stephen Smith, to jail immediately. Instead, the judge said, he will craft a ruling ordering their incarceration but wait nine days before filing it.
The recall was among the sanctions Pannell ordered in May after he found Wheat and his company in contempt of a 2008 order enjoining them from making unsubstantiated claims about their weight-loss products. The sanctions also included a $40 million judgment, one of the largest imposed on a supplement company in an FTC case.
Wheat’s attorneys said they believe Pannell will set a date on which Wheat and Smith must report to jail unless a more focused and efficient recall has been carried out. That will require both sides to set new parameters that must be met so the pair can avoid incarceration, the attorneys said.
“I’m pleased he did not order that Jared be incarcerated, and we are going to work really hard to comply with the court’s order,” said Wheat’s long-time attorney, Art Leach.
FTC attorneys declined comment, citing agency regulations.
The FTC argues that Hi-Tech dragged its feet, issued an ambiguous recall letter, understated its customer base and failed to keep records of its efforts. On Thursday, three FTC investigators testified that they were able to buy some of the products with prohibited packaging in three cities, including one bottle purchased Monday at a GNC in Washington, D.C.
“You have given the defendants chance after chance after chance,” FTC attorney Amanda Basta told Pannell during her closing statement Friday. “There’s only one tool left — to actually incarcerate.”
Leach, in his closing statement, said the recall wasn’t perfect, but Hi-Tech can’t be held accountable for what GNC and other retailers do after learning there’s a recall.
“We were certainly trying to get these letters out and do the best we could,” he said.
Leach suggested that the judge put an independent third party in place to “help facilitate the process.”
Earlier Friday, Leach asked the court to allow Wheat to avoid testifying altogether. He told Pannell that Wheat is the subject of a federal criminal investigation that includes the contempt issue and therefore would invoke his Fifth Amendment right during the FTC proceeding.
“This case is now part of a grand jury inquiry,” Leach told Pannell Friday, noting that anything his client said might later be used against him.
But Pannell refused the request and allowed Wheat to be questioned.
During 36 minutes on the stand, Wheat repeatedly invoked his Fifth Amendment right when questioned by Basta. Finally, Panell said, “I think we’ve gone far enough,” and ended the questioning.
Two workers who had been removing portraits from another court room later found Wheat, who a day earlier had complained of chest pains, and summoned help. Wheat was conscious and responding to questions when he removed from the courthouse.
Wheat remained hospitalized late Friday afternoon, according to one of his attorneys. The attorney, Vaughn Dunnigan, would only say Wheat was being hospitalized for “undisclosed health reasons” and is expected to recover.
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