The Department of Health wound up not destroying $250,000 worth of voluntarily forfeited OxyELITE Pro products as planned because a local attorney asked the state to spare the dietary supplement bottles to potentially be used as evidence in future litigation, the department announced in a news release Tuesday this afternoon.

State environmental health staff members visited 20 retailers on Oahu and nine neighbor island stores Monday to collect a total of 329,509 OxyELITE Pro capsules and 83,000 ounces of the supplement in powder. The DOH had announced plans to deliver the products to the HPOWER waste-to-energy plant in Campbell Industrial Park today for incineration.

DOH said a local attorney sent a letter to the state Department of the Attorney General shortly after the department announced its intent to destroy the embargoed supplements requesting suspension of the planned disposal.

The Attorney General then informed DOH of the request and took possession of the products that were voluntarily given up by retailers with the understanding that they would be destroyed, DOH said in a news release.

Retailers with questions about the seized products are being instructed to call Anne Lopez, special assistant to the Attorney General, at 587-1284 for more information.

Products in the OxyELITE Pro line have been embargoed from sale in Hawaii since Oct. 9. The Health Department first notified the public Sept. 26 that it suspected dietary supplements were linked to cases of severe liver damage and failure and didn’t officially name OxyELITE Pro as a likely suspect until Oct. 8.

On Nov. 9, USPlabs officially recalled the questionable OxyELITE Pro products under pressure from the U.S. Food and Drug Administration, which contends there is a reasonable probability that the products were adulterated because they contain aegeline, an herbal extract that doesn’t have a history of use in the United States or evidence of safety. The FDA first asked the manufacturer to stop distributing the products on Oct. 11. 

So far, state and federal investigators have associated OxyELITE Pro with 36 cases of liver damage and acute hepatitis in Hawaii, including two people who needed liver transplants and a Maui woman who died.