Court Orders Ohio Direct Marketing Company to Cease Sales of Medical Device

OAKLAND -- The Alameda County Superior Court has ordered an Ohio direct marketing company to stop the sales and deliveries of a medical device (called the DPL Therapy System) in California for unauthorized uses. The Preliminary Injunction issued by Judge Robert Freedman will enjoin Suarez Corporation Industries (SCI) during the pending civil law enforcement action filed by Alameda County District Attorney Nancy E. O’Malley, along with the District Attorneys for the Counties Marin, Monterey, Napa, Orange, Santa Clara, Santa Cruz, Shasta, Solano, and Sonoma, against SCI and Benjamin D. Suarez (Suarez), an officer of SCI and resident of Canton, Ohio.

SCI is a direct-to-consumer marketing company operating under the fictitious business name of BioTech Research that sells dietary supplements and medical devices to California residents primarily through advertising on the Internet, in newspapers and direct mailers to targeted customers.

The District Attorneys’ lawsuit alleges that the defendants “made unsubstantiated, false and/or misleading claims, explicitly and implicitly” in the sales of eighteen different health related products. The civil complaint additionally alleges that defendants violated California law by “selling, delivering and/or giving away new drugs or devices without having first obtained approval by the California Department of Health Services.”

The civil action follows a multi-year investigation of Suarez and SCI and is just the latest in a series of lawsuits filed against these defendants for false and deceptive advertising. The lawsuit references that the “defendants have an extensive history with law enforcement as a result of defendants’ use and employment of deceptive advertising” including cases prosecuted by the U.S. Food and Drug Administration (FDA), the Attorney Generals of Indiana, Ohio, Washington and West Virginia, the United States Postal Service, the New Jersey Bureau of Securities and California District Attorneys. (The filed complaint has a listing of previous law enforcement actions prosecuted against SCI.) One such action, according to the complaint, brought by the Ohio Attorney General was “for false labeling and advertising in selling No-Hunger Bread, a diet-aid product SCI also claimed could cure cancer.”

The District Attorneys’ request for a Preliminary Injunction argued that SCI’s advertising claims concerning the attributes and capabilities of the DPL Therapy System went “significantly beyond those intended uses allowed” by the FDA and hence the device was not cleared for sale and was misbranded under both California and Federal law. Judge Freedman agreed as he issued a Preliminary Injunction prohibiting defendant Suarez Corporation Industries (SCI) “from selling, delivering, proffering for delivery, offering for sale or giving away the DPL Therapy System to any person or entity in California unless SCI does so in conformity” with the FDA’s regulatory approval of the DPL device. Judge Freedman concluded that it was reasonably probable that the People would prevail at trail on this issue.

In 2006, several California District Attorneys obtained a judgment in Sonoma County Superior Court against SCI for deceptive marketing and Prop 65 violations regarding a dietary supplement called AbGone. That judgment enjoined SCI from selling the original AbGone product in California, and from engaging in false or deceptive advertising. The judgment also ordered SCI to pay $150,000 in civil penalties and $125,000 in costs. The new complaint filed in Alameda, alleges that Defendant SCI is in violation of the stipulated judgment from 2006 by making “statements concerning any dietary supplement product marketed or sold by SCI which is untrue or misleading, and which is known, or which with the exercise of reasonable care should be known, to be true or misleading.”

The District Attorneys are seeking a permanent injunction against Suarez and SCI to protect California consumers and prohibit future violations of California law; additionally, the complaint requests six million dollars in restitution and civil penalties.

Posted on Sep 28, 2011