By Attorney Jonathan Emord
March 8, 2010
It is a common political strategy in Washington, when a member’s pet bill is in trouble, to signal an interest in accepting “reasonable” changes. Aware that John McCain’s Dietary Supplement Safety Act will not move without significant change, he now aims to save the awful measure, quell the loud opposition. and invite greater support by suggesting that he would entertain a lot of changes. The bill, however, is a disaster from beginning to end. The harm it is advertised to address (the sale of supplements as steroids) is already illegal. In short, there is no room for compromise on this bad bill. It needs to go to the dust bin.McCain’s bill has hit a wall of opposition, a wall constructed by significant protests from consumers, physicians, and industry, precisely because it invites FDA to remove supplements from the market and it regulates down to the grandmother who distributes supplements from her basement. The bill is the political equivalent of a loathsome, contagious disease. Those who sign onto it will likely suffer the same rebuke as Senator McCain. Consequently, weeks after its introduction, it still has only one co-sponsor, the original one, the retiring liberal Democratic Senator Byron Dorgan.
While Senator McCain claims the bill is designed to protect consumer interests, his claim is belied not only by the bill’s terms but also by the fact that he introduced it on behalf of lobbyists for the major national baseball leagues, themselves representatives of corporate interests. As Congressman Ron Paul has astutely pointed out, the bill favors the pharmaceutical industry and threatens consumer access to supplements.
Senator McCain’s bill was advertised as a means to stop steroids from being sold as supplements, but instead the bill gives FDA broad new powers to ban all manner of supplements other than those sold as steroids, to require new registration and reporting by all who sell supplements, and to cause simple distributors of supplements to be open to FDA inspections, even civil penalties and fines, for the first time. In short, McCain’s bill greatly expands FDA discretionary power to remove a wide variety of safely consumed dietary supplements from the market and to cause presently law abiding citizens to become law violators for failing to file registration forms and keep records (neither of which are remotely needed to protect the public from supplements sold as steroids).
The bill shocks the conscience because it comes from a man who has said many times he is not a friend to government regulation. The bill also shocks the conscience because while it gives FDA extensive new powers, it includes not a single provision to protect Americans from FDA abuse of its powers. The measure should be renamed the “In FDA We Trust” bill because it trusts one of the most corrupt and abusive agencies of the government to expand its authority over law abiding citizens. It also suggests that Senator McCain is deaf and dumb to the congressional record. The bill follows years of Congressional testimony revealing abuses of power by the FDA (from the knowing approval of unsafe drugs, like Vioxx, to the exercise of undue influence over agency decision-making by representatives of drug companies). The bill follows the U.S. Senate’s findings that FDA harbors an unscientific bias against dietary supplements (recorded in the Senate’s legislative history for the Dietary Supplement Health and Education Act). The bill follows proof that FDA unlawfully refused to implement provisions of the DSHEA to which Commissioner Kessler objected. The bill follows proof that FDA openly refused to abide by numerous federal court orders against its actions. The bill follows proof that FDA censors truthful supplement claims. The bill follows proof that FDA routinely places people with conflicts of interest on drug review panels to ensure that drugs would be approved despite serious safety questions.
The bill invites the FDA to ban supplements sold before October 15, 1994, unless the FDA Commissioner in her sole discretion deems them safe and posts them on a list of “Accepted Dietary Ingredients.” Hundreds of dietary supplements now lawfully sold and safely consumed in the market could suddenly be deemed unlawful to sell. The FDA Commissioner, no friend of supplements, could pick and choose with no defined standard what she wished to have in the market and what she wished to remove.
Moreover, the bill forces for the first time every distributor, including every multi-level marketer in the United States, to register with the agency, identify all products, list all ingredients in those products, and retain records for FDA inspection. In his heart of hearts McCain does love regulation. He would take the Avon lady, who sells supplements, and regulate her with the same tenacity as the largest dietary supplement company. He would permit FDA investigators to visit her home to inspect her supplements and verify her recordkeeping was in order. He would permit FDA to charge her with civil law violations and fine her if her records were not in order or if she failed to file registration papers. McCain must be entirely comfortable with these intrusions because his bill would make them the law.
In an earlier article, I lampooned the bill with a Joe the Plumber example. I said Joe probably has to sell supplements in this bad economy, was promised by Candidate McCain regulatory relief, but would find himself now the victim of extensive new federal regulation visited upon him at the request of John McCain. Joe, you’ve been betrayed (again).
Some on the Hill and in the trade associations are now playing the field for McCain, telling the supplement industry that a compromise bill can be crafted. This is to lessen the ire against the bill. The problem with accepting that compromise approach is that it increases the likelihood that some part of this bad bill will make it into the law. If a version of McCain’s bill ever passes the Senate and another version of it the House, it would be negotiated in conference where supplement haters like Henry Waxman would do FDA’s bidding and add into the bill loose language to permit a gross expansion in FDA regulatory power.
Going part way down the slope gets you to the bottom faster than if you refuse to get on the slope at all. Remember the only legitimate thing the bill could do (render unlawful the sale of supplements as steroids) is already the law. In short, there is no sound reason for enacting any part of the McCain bill. There is no such thing as irrelevant legislation. If you give FDA a new law, FDA will interpret it to provide the agency with new powers. Better to legislate only when essential, at least that is the political lesson of our Founding Fathers and one learned by those who are sincere in their respect for limited government. John McCain, while claiming to fit within this tradition, does not. He has flunked the limited government test. He is a friend of energetic government. He trusts more in regulation and in the discretion of regulators than he does in the American people.
The good news is that Congressman J.D. Hayworth is giving McCain a run for the money. He is running against McCain for the Republican Party nomination for the U.S. Senate. I urge those who read this column in Arizona to jump on the Hayworth band wagon. Hayworth would never support an awful bill like this. You will not find Hayworth trusting in government regulators more than he does in the liberty of the American people. Its time for McCain to try a new line of work that does not involve the privilege of exercising power to restrict other people’s freedoms.#Additional good news comes in the form of action by the Alliance for Natural Health-USA (WWW.ANH-USA.ORG). I am deeply impressed by that group’s national campaign against the bill (a campaign that in its first call to action caused 46,000 people to email their U.S. Senators against the bill). ANH-USA is organizing a rally against the bill in McCain’s home state. If you want to help make a big difference against this bill, I urge you to send an email against the bill to your U.S. Senators through the ANH web site. If you can, send a financial contribution to that group (also through its web site) to help wage this battle. The bill has no momentum. Its time to send a resounding message that it must be withdrawn, not revised.