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Prop 65 Andro Settlements Include “Corrective Advertising” Provision

This article was originally published in The Tan Sheet

Executive Summary

Settling defendants in California's Prop 65 litigation against androstenedione supplement marketers would pay from $1,341 to $4,546 each to fund "corrective advertising" programs, according to proposed consent judgments filed in Oakland state court

Settling defendants in California's Prop 65 litigation against androstenedione supplement marketers would pay from $1,341 to $4,546 each to fund "corrective advertising" programs, according to proposed consent judgments filed in Oakland state court.

The proposed settlements call for Universal Protein Supplements, Champion Nutrition, Met-Rx and Twinlab to contribute "toward the cost of a corrective advertising program to be administered by the Attorney General."

"Warnings shall be published in magazines or other publications targeting bodybuilders or fitness enthusiasts, as determined by the AG," the filings state. "The warnings shall contain the same language as is specified for the label warning, plus any additional language determined appropriate by the AG."

Under the settlements, labeling for defendants' andro products sold in California in the future must contain one of two warnings. The Prop 65 "safe harbor" warning states: "This product contains androstenedione, a chemical known to the State of California to harm your reproductive system."

Alternatively, andro supplements may carry the warning included in Federal Trade Commission settlements that states, in part: "This product contains steroid hormones." The language was part of an FTC settlement with Met-Rx and AST Sports Science in 1999 (1 (Also see "Met-Rx, AST To Place Warnings On "Andro" Products Under FTC Settlement" - Pink Sheet, 22 Nov, 1999.), p. 12).

Some of the settling parties have indicated they are getting out of the andro business. For instance, Met-Rx has said it no longer makes or sells such supplements.

The corrective ad warnings would not identify individual companies or their products specifically by name, according to the settlements. Details of the ads, including when they will start and the number of publications in which they will appear, will depend on the number of defendants who ultimately settle.

Total costs for the four consent judgments - including penalties, fees and corrective ads - is $127,602. A hearing on the proposed settlements is set for June 28 before Judge Ronald Sabraw, who oversees the litigation and is expected to eventually rule on the issue of whether andro is an anabolic steroid (2 (Also see "Prop 65 Andro Litigation Could Include Mini-Trial On Anabolic Steroid Status" - Pink Sheet, 20 May, 2002.), p. 20).

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