PHOENIX — On October 10, 2018, ThermoLife International, LLC filed suit in Arizona Federal District Court against Vital Pharmaceuticals, Inc. (“VPX”). ThermoLife is a leading technology supplier in the sports nutrition and supplement industry. ThermoLife holds 17 patents with more than 450 claims related to novel uses of Nitrates and Amino Acid/nitrate compounds and compositions in Dietary Supplements and food products. ThermoLife is the market leader in nitrate/nitrite technology and the sole and exclusive distributor of its top-selling patented creatine nitrate.
As alleged in ThermoLife’s Complaint, VPX has waged a nationwide advertising and marketing campaign that falsely promotes the health benefits of its BANG energy drink. VPX’s advertising and marketing of BANG is fantastical. As just one example, VPX claims that BANG helps with “all forms of dementia, including Alzheimer’s, Parkinson’s, Huntington’s, and other forms of dementia.”
ThermoLife’s Complaint explains that VPX’s advertising distinguishes BANG from hundreds of energy drinks on the market by touting the benefits of what it calls “Super Creatine.” Creatine is the most popular performance enhancing dietary supplement ingredient. It has been proven to increase lean muscle mass, help muscles recover more quickly during and after exercise, and reduce protein breakdown. Seeking to take advantage of creatine’s popularity, VPX falsely claims that Super Creatine “is the world’s only water-stable creatine.”
As ThermoLife’s Complaint explains in detail however, Super Creatine is NOT creatine, and contrary to VPX’s false advertising, Super Creatine does NOT form creatine when ingested. The compound that VPX advertises as Super Creatine is actually a covalently bonded creatine dipeptide, NOT a bioavailable form of creatine. VPX deceptively takes advantage of the fact that consumers hearing the name Super Creatine are led to believe that Super Creatine has the same function and benefit of creatine in the body; i.e., Super Creatine is a source of creatine. But, as ThermoLife’s Complaint alleges, the data included in VPX’s own patent and the results of a study that VPX recently commissioned on Super Creatine in rodents proves that VPX knows that Super Creatine is not a source of creatine, and that VPX is fully aware that they are blatantly and intentionally lying to consumers.
ThermoLife’s lawsuit points to several studies that were recently conducted on the stability and toxicology of the compound that VPX terms Super Creatine. These studies show that the Super Creatine compound does not break down to creatine when ingested. Instead, the compound breaks down to creatinine, a compound which VPX has said is “a useless substance” that is potentially harmful.
As alleged by ThermoLife, VPX’s willful false advertising of its BANG product renders the product “misbranded” under Federal Law. Misbranded products, like BANG energy drink, are prohibited for sale in the United States. BANG is clearly misbranded because the BANG energy drink prominently states on every single product label that the product includes creatine. But, as explained above, VPX’s Super Creatine is not actually creatine and it does not breakdown to creatine in the body. As alleged, VPX knows this and it has intentionally included false information on BANG’s labels in an order to deceive consumers. Federal Law dictates that misbranded products are forbidden for sale in interstate commerce. Accordingly, as a misbranded product all BANG energy drinks should be recalled from the market immediately.
When reached for comment, ThermoLife’s founder, Ron Kramer, offered the following statement: “ThermoLife cannot stand by while VPX and Jack Owoc falsely tout ‘Super Creatine’ as superior to all other forms of creatine. First, as detailed in the complaint Super Creatine is NOT creatine, nor is it a source of creatine, and despite their intentional false advertising, VPX and Owoc know this. Second, ThermoLife has the exclusive rights to the ‘Super Creatine’ compounds in the USA and we already had the USPTO cancel ALL of Jack Owoc’s patent claims to the ‘Super Creatine’ compounds, because contrary to what Owoc tells people, Jack Owoc is NOT the inventor of the ‘Super Creatine’ compounds. Now, in filing this lawsuit, we seek to have the court hold VPX and Owoc responsible, and punish them for the lies they are intentionally telling to consumers.”
ThermoLife’s Complaint seeks an injunction, barring further false advertising by VPX and actual damages. As a result of VPX’s willfully false advertising, ThermoLife also seeks an order from the court disgorging VPX’s profits and an award of treble damages. Any Judgment against VPX here could exceed $50,000,000.00.
ThermoLife is represented in the matter by Gregory B. Collins of Kercsmar & Feltus PLLC.
About ThermoLife International
Founded in 1998, ThermoLife is a world leader in patented ingredients and technology for use in dietary supplements, specializing in sports nutrition. ThermoLife controls a global patent portfolio of 27 patents spanning more than 15 countries including more than 450 valid and issued claims on the use of nitrates in dietary supplements. ThermoLife collaborates with leading manufacturers in the sports nutrition and dietary supplement industry to provide innovative ingredients to help offer superior patent-protected products to end users.