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GNC to Defend Oregon AG Lawsuit in State Court

<p>GNC wanted the case to remain in federal court, arguing that state attorneys general did not have the right to enforce provisions of the Federal Food, Drug &amp; Cosmetic Act (FDCA) that Attorney General Ellen Rosenblum&#8217;s office alleged the sports nutrition company violated.</p>

Oregon Attorney General Ellen Rosenblum won a procedural fight to press her lawsuit against General Nutrition Corp. (GNC) in state court.

On June 14, U.S. District Judge Marco Hernandez adopted the findings and recommendations of a magistrate and remanded the case to Multnomah County Circuit Court. The sports nutrition company wanted the case to remain in federal court.

U.S. Magistrate Judge Paul Papak rejected GNC’s contention that Oregon’s claims under state law marked a proscribed effort to enforce the Federal Food, Drug & Cosmetic Act (FDCA).

“We are pleased this is back in state circuit court, where we have always believed this case belongs," Kristina Edmunson, a spokeswoman for Rosenblum, said Tuesday in an emailed statement.

GNC declined to comment.

In October, Rosenblum alleged GNC sold unlawful ingredients—namely picamilon and β-methylphenylethylamine (BMPEA)—in its dietary supplements in violation of Oregon’s Unlawful Trade Practices Act (UTPA). After GNC received an FDA official’s affidavit last year that picamilon didn’t qualify as a dietary ingredient, the retailer immediately pulled products containing the substance from its stores. Separately, FDA concluded more than a year ago in warning letters that BMPEA didn’t meet the definition of a dietary ingredient and cannot legally be sold in dietary supplements.

GNC hasn’t conceded FDA’s conclusions are correct. “If picamilon and BMPEA were, in fact, lawful dietary ingredients during the time that GNC sold products containing those ingredients, then the entirety of the State’s case disappears," GNC’s counsel wrote in Dec. 23, 2015 court papers.

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