Elysium has filed a letter in New York responding to ChromaDex's proof that it never sold toluene directly to consumers. You can read Elysium's letter here:
At this point we're getting used to the perpetual bombast from the Elysium side, but I can't help but wonder if Judge McMahon will be getting impatient with this particular filing.
So here's what happened:
ChromaDex complained (to the FDA) that Elysium had toluene in its product.
Elysium said so do you.
ChromaDex said not in any direct-to-consumer product.
Elysium said yu-huh, you sold pterostilbene to consumers five years ago, and we know your pterostilbene has toluene in it.
Then ChromaDex this week submitted 300+ pages of evidence to the Court proving that its BluScience product never contained toluene.
The 300+ pages purport to be the certificates of analysis from all 19 lots of BluScience product and purport to show that toluene was not present.
Now Elysium says, nu-uh, we read the 300+ pages, and it doesn't say that at all. In fact, it says just the opposite, that BlueScience DID contain toluene, and now Judge McMahon knows you are a liar.
Or these are Elysium's exact words:
"In the Supplemental Declaration, Rhonemus...claims [that] none of the samples contained detectible amounts of toluene...Exhibit 2...appears on its face to refute that assertion, because on its seventh page it reveals the presence of toluene in the tested sample...Even more damning, however,...is a certificate of Analysis...[that] reveals that toluene was detected in the sample at 5 parts per million...This COA puts the lie to Rhonemus' claim...And it demolishes ChromaDex's argument in its letter motion...Moreover...that same exhibit raises serious doubts about the reliability of the gas chromatography results in each of the other exhibits..."
I find this kind of thing especially tiresome, and a misuse of the judicial process.
The measured toluene in Basis was around 100 ppm (96-144 mg/kg, according to the FDA Petition)
ChromaDex said there was none detectible in BluScience, and submitted 19 COAs, most of which show none detected. Like this:
Or, more specifically, like this: Exhibit 1:
There. Tolune: 0, 0, and 0.
But Elysium says, Keep reading! In Exhibit 2, it looks different!
Look at that! Toluene! 6.937, 610.85, and 0! See the toluene WAS detected!
And now let's go to the "even more damning" part. On page 321, in the 19th sample, it says that toluene was detected at 5ppm:
This is just puerile sophistry.
The thing we are trying to track is whether ChromaDex did the same thing that it alleged Elysium to have done.
Elysium is alleged to have included toluene at about 100 ppm in its consumer product.
ChromaDex has submitted 19 reports. Seventeen of the 19 show no detectible toluene. One of the reports shows detectible toluene, but seems to put the amount as 0.0000%, which I think is less than one part per million. Another report shows toluene detected at 5 ppm.
If 17 out of 19 reports are showing none, and the remaining two are showing exceedingly tiny amounts -- 1/20th of what Elysium is alleged to have done -- then a normal rational person would say, "That is about as close to zero as you can get: 90% of the time it's an actual zero, and the remaining two times it is very close to zero. If you add them all up and average them, it's zero. If you take the single very worst example, Elysium's alleged behavior is 20 times worse than that.
But that's not what Elysium says. Elysium says that what a normal person might assume were trace contaminants in the two outlier tests "demolish" ChromaDex's argument, and cast doubt on the other 17 tests.
Meanwhile, back in the fact-based, reality-based world, there is absolutely no possible argument based on the data that Elysium has brought to the courts attention that ChromaDex is complaining about the same thing that it did.
The data Elysium is flagging in the BluScience COAs is orders of magnitude different from what ChromaDex is complaining about in the FDA petition. It is substantially consistent with ChromaDex's claims, and it is substantially different from what Elysium appears to have done.
I don't like Elysium wasting my time to sort through this nonsense. We'll see how the Court responds.