An Exeter man is accused in a federal lawsuit of selling nutritional supplements that contain anabolic androgenic steroids that are illegal and harmful to users, while also casting “a black eye on the industry.”
The lawsuit was filed in the U.S. District Court of New Hampshire and alleges Keith Omerso of Exeter is distributing the supplements under the registered trade name “Tokkyo Nutrition.” The suit claims his supplements contain anabolic steroid chemicals, including dimethazine, also known as DMZ and dymethazine, which is classified as a controlled substance and banned by many international sports agencies. Alleging those chemicals cause a range of health problems, the suit claims Tokkyo Nutrition products promise health benefits and are marketed to “body builders, gym users, fitness enthusiasts and athletes.”
But Portsmouth attorney Alec McEachern, who represents Omerso, said his client is “on the record saying he does not sell steroids and it’s not in his products.” Omerso is being sued by the Arizona-based company Nutrition Distribution which, McEachern said, has filed lawsuits against no fewer than 95 other nutritional supplement companies with allegations similar to those made against his Exeter client.
“It appears they are in the business of suing other people in the industry,” he said.
McEachern also reports, in an answer filed with the federal court, that a representative of the company suing his client pleaded guilty in 2011 to distributing supplements that did contain synthetic steroids. Manchester attorney Mark Dell’Orfano filed the lawsuit for Nutrition Distribution against Omerso and informed the court a copy was also filed with the New Hampshire attorney general’s office.
Dell’Orfano said he was not authorized to discuss the case for this article.
The lawsuit against Omerso reports that sales of nutritional supplements in 2012 totaled $32 billion and cites a Forbes magazine article projecting sales to reach $60 billion. Nutrition Distribution makes and markets its own supplements, “specifically for body builders,” under the name Mass FX Black. It claims its products provide users more aerobic power, greater muscular endurance and faster recovery.
Nutrition Distribution claims in court that Omerso’s supplements make the same claims, but contain dimethazine, an illegal substance which, if consumed, would lead to disqualification from “any competition using the World Anti-Doping Agency’s standards.”
But McEachern said his client denies that and is unaware of any labeling or testing that would prove otherwise.
“So we’ll have to see what happens in court,” he said.
The 2-count federal suit alleges Omerso and his company, BTE Wholesalers, violated federal law by falsely advertising its supplements and it asks a judge to prohibit the marketing and sales of them. Nutrition Distribution seeks restitution for “ill-gotten gains,” monetary awards, court costs and double or triple its damages.
McEachern said his client received a letter about a year ago from someone telling him he was going to be sued and seeking a cash payment to avoid it. He said Omerso never responded and now finds himself “on the long list of people being sued.”
The lawsuit claims Omerso is the sole owner of the company distributing Tokkyo Nutrition supplements and “is exposing its customers to extreme health risks through its false and misleading advertising” about its supplements.
“Although (Omerso and his company) know, or should have known that their Prohormone Products are dangerous, illegal and banned by sports agencies, defendants’ marketing and advertising with respect to such products suggests the exact opposite,” the federal suit claims. Nutrition Distribution claims that has led to unjust enrichment of its competitor, which came at its expense, because it is “a legitimate sport supplement manufacturer.”
McEachern reiterated his client is not selling supplements with steroids and noted his suit includes information about the Nutrition Distribution president having prior convictions for selling steroid products. McEachern’s answer to the suit states Kevin Smith, president of two companies including Nutrition Distribution, pleaded guilty in 2011 to a felony for knowingly causing an anabolic steroid to be made and distributed as a supplement, while intending to deceive consumers. Smith was fined $100,000, according to a Food and Drug Administration press release.
Also according to the FDA release, the company now suing Omerso, Nutrition Distribution, was found to have sold supplements containing steroids and was also fined $1,000.
McEachern said he plans to file a motion with the federal court asking a judge to dismiss the suit against his Exeter client. A 2-week jury trial is scheduled to commence Aug. 6, 2019.