A huge issue facing the health supplement industry is the frequency in which undeclared substances find their way into the products.
A study conducted by Informed-Choice indicates that approximately 25% of supplements in the market could be contaminated.
Some of the undeclared substances found in supplements could be deadly. Take, for example, the undeclared drug Sildenafil. It’s an active drug ingredient for erectile dysfunction that was found in the product STEAM, made by Nutracoastal Trading, LLC. When Sildenafil interacts with nitrates, lowering of blood pressure can result. People with diabetes, high blood pressure, high cholesterol or heart to disease often take nitrates. Combining them with STEAM could lead to life threatening consequences.
There could also be financial impacts to those who take supplements with undeclared substances. Too often we hear of athletes who claim they failed a drug test due to undeclared substances in the supplements they take. However, sometimes the athletes are right.
A good example is Rebeka Keat, a triathlete who tested positive for norandrostendione. She failed a drug test received a two-year suspension With help and support from her sister, her name was finally cleared when the World Anti-Doping Agency (WADA) laboratory tested the supplements she took and found them to be contaminated with norandrostenedione.
As an expert in Product Liability insurance, what I find most interesting is the question of whether or not Product Liability insurance would cover both of the supplement manufacturers/distributors in the above mentioned cases.
The first case Nutracoastal Trading, LLC is a slam dunk and should be covered by Product Liability insurance. However, the case involving Rebeka Keat is not so clear. The manufacture/distributor may not be fully covered by their Product Liability policy.
In the first case, the trigger for product liability coverage is bodily injury or property damage. The STEAM manufacture/distributor should be covered since the lawsuit is based on the interaction of Sildenfil with nitrates and likely led to bodily injury or death.
In the second case, it is not as clear whether bodily injury occurred. It possible Keat’s attorney claims emotional distress to trigger the bodily injury coverage of the Product Liability policy. This could result in judgment or settlement compensation.
However, much of the damage to Keat may be more economic in nature, such as the loss of current and future sponsors. The insurance carrier may have a duty to defend the manufacture/distributor of the supplement that caused her to be banned from competition. But economic losses likely aren’t covered by the policy since neither bodily injury or property damage triggered coverage.
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