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Court: “Evidence of widespread advertising scheme”

Orange County, California – Lawyers appointed by a Federal Judge to represent tens of thousands of consumers allegedly defrauded by supplement maker Bio-Engineered Supplements and Nutrition (“BSN”) announced today that will ask the Judge to order BSN to stop its false advertising and require BSN to immediately recall all BSN products promoted through false advertising. Class counsel also announced that they will ask the Court to schedule a hearing on their injunction request at the Court’s earliest convenience.

Specifically, the consumer class will ask the Court to: (1) enjoin BSN and its agents from any further advertising of “CEM3” or any corollary representations; (2) compel BSN to immediately recall all falsely advertised products; (3) compel BSN to inform all product vendors of the existence of and requirements set forth in the injunction; and (4) compel BSN to either produce competent evidence to support its claims regarding CEM3 or engage in appropriate corrective advertising.

In late 2008, a California Federal Judge certified a nationwide and statewide class action against BSN. That lawsuit alleges that BSN sold tens of thousands of bottles of its products Cellmass, Nitrix, and N.O.-Explode based upon false labels and false advertising. Specifically, the suit alleges that BSN falsely claims that its products contain a new form of creatine called “Creatine Ethyl Ester Malate”, or “CEM3.” The suit claims that not only did BSN’s products not contain CEM3, but that CEM3 does not exist and is impossible to manufacture.

In certifying the class, U.S. District Judge James V. Selna concluded that the plaintiffs had “provided sufficient evidence to demonstrate that they may be able to prove the false representations at trial.” The Court further concluded that the evidence presented by the Plaintiffs show “evidence of a wide-spread advertising campaign which claims that CEM3 is a superior form of creatine” and that the same evidence “tends to indicate that the representations were made.” Finally, the Court ruled that “Rivera has provided sufficient evidence that the products did not contain CEM3” and that BSN improperly engaged in an “underlying scheme of promoting CEM3 as a superior form of creatine” to allow the case to proceed to trial as a class action.

Class counsel Scott J. Ferrell of the law firm Call, Jensen & Ferrell offered the following statement: “BSN’s ongoing fraud must stop now. BSN has had over a year to provide any evidence to support its claims about CEM3, but its silence is deafening: BSN has not produced a single persuasive document. Now, if BSN does have any evidence, we expect that they’ll turn it over to the Court and to the class.”

Scott Ferrell, Esq. 949.717.3000 sferrell@calljensen.com
James Hardin, Esq. 949.717.3000 jhardin@calljensen.com