How "Cobra Sexual Energy" Got the US Supreme Court All Hot and Bothered

On Monday, the United States Supreme Court heard arguments regarding a class action lawsuit against Nutraceutical Corp, the company responsible for a sexual enhancement supplement called “Cobra Sexual Energy.” The dramatically named supplement recently fell so short of its promise to enhance “animal magnetism” that the plaintiffs think they they deserve some hefty financial compensation for their woes.

The case began in 2013, when Troy Lambert, a resident of Long Beach, California, first encountered the bright red “Cobra Sexual Energy” supplement. The packaging states: “perform your best with animal magnetism,” according to STAT. Lambert, taking that phrase quite literally, expected the supplement to help him perform better in bed.

After repeated doses, Cobra Sexual Energy did not rise to that occasion. Lambert and others who claim to be frustrated with their poor results sought $210,000 in compensation, claiming that Nutraceuticals “violated California consumer fraud law with the sale of its Cobra Sexual Energy pill,” according to court documents. The bizarre event shines a light on the contentious issue at the heart of supplement regulation, Pieter Cohen, M.D., an associate professor at Harvard Medical School, tells Inverse.

"“…we don’t know of any legitimate, legal supplement ingredient that’s going to have a large effect on helping people have stronger erections or effects on their sex life."

“The challenge here with sexual enhancement supplements is that we don’t know of any legitimate, legal supplement ingredient that’s going to have a large effect on helping people have stronger erections or effects on their sex life,” Cohen says.

In line with this, Lambert alleged that Nutraceutical is “seeking to profit from male vulnerability to false or deceptive virility or aphrodisiac claims.” There’s a good chance that the supplement doesn’t do what it says it does, but Cohen adds that there’s probably a good reason for that.

Botanicals like yohimbe (used in this supplement, along with ginseng, horny goat weed and muira puama) have been used as aphrodisiacs in the past. The problem with these, Cohen says, is that is they’re not potent enough to live up to the promises of enhancing sexual function unless individual chemicals within those botanicals are isolated.

"“…there’s nothing you can legitimately put in it that’s going to have a big effect on your sex life."

“So we have this tension [about] this ability to advertise these products as if they can improve your sex life, but there’s nothing you can legitimately put in it that’s going to have a big effect on your sex life,” Cohen says.

This summer, a JAMA Open Network report highlighted that some supplements listed in the FDA databases contained prescription drugs, like Viagra, though they weren’t listed on the label. An FDA investigation in 2015 also warned that sexual enhancement supplements might contain drugs.

Seeing as the Cobra pills didn’t appear to appease these plaintiffs, the issue being debated here doesn’t center on the contents of the supplements. Rather, it’s more about the claims that the company can make, and who evaluates them.

Cohen, who has written extensively on the FDA oversight of the supplement industry, explains that this conflict of interest arises largely from requirements, established in the 1994 Dietary Supplement Health and Education Act of 1994 (DSHEA), that outline the FDA’s role in the oversight of dietary supplement. Specifically, there’s a clause that deals with the types of claims these supplements can make. Called “structure-function claims,” these are statements like “calcium helps build strong bones,” or “fiber maintains bowel regularity.”

“These structure function claims can be anything the manufacturer wishes them to be, so you can say ‘this will maintain a healthy sex life for example,’ as long as you avoid specific words claiming that the supplement is going to be curing or treating a disease” Cohen says. “If you say this ‘is good for maintaining a healthy sex life’ or healthy erections even, you can use that language.”

Importantly, because the FDA doesn’t oversee supplements pre-market, they don’t “pre-approve” these claims before supplements hit shelves. Instead, the text is submitted to the agency 30 days after marketing the product to the public. A supplement company is free to make these claims, as long as there is an FDA disclaimer on the box.

Unfortunately for Lambert, the lawsuit looks like it’ll be thrown out, according to a report from Bloomberg Law on Tuesday. The case reached the Supreme Court largely because of a legal technicality when it comes to class action lawsuits — Lambert missed a key deadline in 2015. Had the case been allowed to continue, it would have been kicked back to a lower court, in which Lambert’s legal team would have had the chance to prove that the misleading statements caused damages on a class-wide basis because the Cobras didn’t live up to their promises. Once again, the opportunity to tackle this issue has slithered away.