U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

83–482 PDF 2003

S. Hrg. 107–870

EPHEDRA: WHO IS PROTECTING THE AMERICAN

CONSUMERS?

HEARING

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT,

RESTRUCTURING, AND THE DISTRICT OF COLUMBIA

SUBCOMMITTEE

OF THE

COMMITTEE ON

GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 8, 2002

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

FRED THOMPSON, Tennessee

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

JIM BUNNING, Kentucky

PETER G. FITZGERALD, Illinois

JOYCE A. RECHTSCHAFFEN, Staff Director and Counsel

RICHARD A. HERTLING, Minority Staff Director

DARLA D. CASSELL, Chief Clerk

OVERSIGHT OF GOVERNMENT MANAGEMENT, RESTRUCTURING, AND

THE DISTRICT OF COLUMBIA SUBCOMMITTEE

RICHARD J. DURBIN, Illinois, Chairman

DANIEL K. AKAKA, Hawaii

ROBERT G. TORRICELLI, New Jersey

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

GEORGE V. VOINOVICH, Ohio

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

THAD COCHRAN, Mississippi

PETER G. FITZGERALD, Illinois

MARIANNE CLIFFORD UPTON, Staff Director and Chief Counsel

ANDREW RICHARDSON, Minority Staff Director

ANNE MARIE MURPHY, PH.D., Senator Durbin’s Staff

BRIAN MCLAUGHLIN, Staff Assistant

(III)

C O N T E N T S

Opening statement: Page

Senator Durbin ................................................................................................. 1

WITNESSES

TUESDAY, OCTOBER 8, 2002

Kevin Riggins, Lincoln, Illinois .............................................................................. 4

Debbie Riggins, Lincoln, Illinois ............................................................................. 6

Charles Fricke, Logan County Coroner, Lincoln, Illinois ..................................... 7

Lanny J. Davis, Esq., Counsel on behalf of David W. Brown, President and

Chief Executive Officer, Metabolife International, Inc., San Diego, California ..................................................................................................................... 15

J. Howard Beales, III, Ph.D., Director, Bureau of Consumer Protection, Federal Trade Commission ........................................................................................ 18

Bill Jeffery, L.LB., National Coordinator, Centre for Science in the Public

Interest (CSPI), Carleton University, Ottawa, Ontario, Canada ..................... 19

Ronald M. Davis, M.D., Board of Trustees, American Medical Association,

Chicago, Illinois .................................................................................................... 21

Sidney M. Wolfe, M.D., Director, Public Health Citizen Health Research

Group, Washington, DC ....................................................................................... 23

Frank D. Uryasz, President, National Center for Drug Free Sport, Kansas

City, Missouri on behalf of the National Collegiate Athletic Association ....... 26

Lester M. Crawford, D.V.M., Ph.D., Acting Commissioner, Food and Drug

Administration, U.S. Department of Health and Human Services ................. 39

ALPHABETICAL LIST OF WITNESSES

Beales, J. Howard, III, Ph.D.:

Testimony .......................................................................................................... 18

Prepared statement .......................................................................................... 79

Crawford, Lester M., D.V.M., Ph.D.:

Testimony .......................................................................................................... 39

Prepared statement .......................................................................................... 116

Davis, Lanny J., Esq.:

Testimony .......................................................................................................... 15

Prepared statement of David W. Brown with attachments submitted by

Mr. Lanny Davis ........................................................................................... 159

Davis, Ronald M., M.D.:

Testimony .......................................................................................................... 21

Prepared statement .......................................................................................... 96

Fricke, Charles:

Testimony .......................................................................................................... 7

Prepared statement .......................................................................................... 56

Jeffery, Bill, L.LB.:

Testimony .......................................................................................................... 19

Prepared statement .......................................................................................... 91

Riggins, Debbie:

Testimony .......................................................................................................... 6

Prepared statement .......................................................................................... 55

Riggins, Kevin:

Testimony .......................................................................................................... 4

Prepared statement .......................................................................................... 53

Uryasz, Frank D.:

Testimony .......................................................................................................... 26

Prepared statement .......................................................................................... 112

Page

IV

Wolfe, Sidney M., M.D.:

Testimony .......................................................................................................... 23

Prepared statement .......................................................................................... 104

APPENDIX

Congresswoman Susan Davis, from the State of California, prepared statement ...................................................................................................................... 141

Letter dated October 1, 2002 from Robert G. Peterson, M.D., Ph.D., M.P.H.,

Director General, Health Canada, with attachments ....................................... 144

Questions and responses from Mr. Lanny Davis .................................................. 166

Questions and responses from Mr. Crawford ........................................................ 172

Questions and responses from Ullman, Shapiro & Ullman, LLP, New York,

NY, for Robert Occhifinto of NVE Pharmaceuticals, the manufacturer of

Yellow Jackets, with an attachment .................................................................. 177

(1)

EPHEDRA: WHO IS PROTECTING THE

AMERICAN CONSUMERS?

TUESDAY, OCTOBER 8, 2002

U.S. SENATE, OVERSIGHT OF GOVERNMENT MANAGEMENT, RESTRUCTURING, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE, OF THE COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC.

The Subcommittee met, pursuant to notice, at 10 a.m., in room

SD–342, Dirksen Senate Office Building, Hon. Richard Durbin,

Chairman of the Subcommittee, presiding.

Present: Senator Durbin.

OPENING STATEMENT OF SENATOR DURBIN

Senator DURBIN. Good morning. This hearing will come to order.

I am pleased to welcome you to today’s hearing before the Senate

Subcommittee on Oversight of Government Management, Restructuring, and the District of Columbia, focusing on ‘‘Ephedra: Who is

Protecting the American Consumer?’’

Dietary supplements are safely consumed by millions of Americans every day. I, myself, take a variety of supplements, multi-vitamins, folic acid, all the things that I think are going to make me

live forever. I hope they do. For the vast majority of dietary supplements, there are few reports of harm. For some, there is strong scientific evidence that they provide a health benefit.

However, that is not the case for the supplement ephedra, which

is the focus of this hearing. The Food and Drug Administration reported that in the year 2001, 42 percent of the total number of adverse event reports, known as AERs, received for all dietary supplements by the agency were for one supplement, ephedra. In some

years, such as 1996, the percentage was as high as 70 percent, as

this chart indicates.

Particularly alarming was the fact that many of these ephedra

adverse events were suffered by young people. The HHS Inspector

General noted that 60 percent of the alleged injured parties by

ephedra were under the age of 40. Furthermore, if you look at some

of the most serious adverse events reported to the FDA for dietary

supplements, you find that ephedra is disproportionately represented, as the chart indicates. Seventy-eight percent of myocardial infarction AERs were for ephedra products. Eighty-one percent

of stroke AERs were for ephedra products. Sixty percent of the

deaths were for ephedra products.

Independent scientists without ties to the industry have analyzed

these adverse events and reached disturbing conclusions. A study

2

published in the well-respected New England Journal of Medicine

in the year 2000 reviewed ephedra AERs received by the FDA between June 1, 1997, and March 31, 1999. The study concluded that

31 percent of the reported adverse health outcomes were ‘‘definitely

or probably’’ related to ephedra use, and an additional 31 use were

deemed to be possibly related to ephedra use.

We are not necessarily talking here about people taking a higher

than industry recommended dose. A study in the Mayo Clinical

Proceedings in January 2002 reviewed the cases of 37 patients who

suffered adverse cardiovascular events, specifically sudden death,

myocardial infarction, or stroke, and found the cardiovascular toxic

effects of ephedra were not limited to massive doses. Of the 37 patients in the Mayo Clinic study who experienced one of the health

problems I mentioned earlier, 36 of the 37 were using amounts no

larger than what the manufacturer recommend—36 out of 37. That

means that over 97 percent of the adverse health events occurred

in individuals taking ephedra at or below the manufacturer’s suggested dose.

It is studies such as these that have led so many health professionals to conclude that ephedra is not a safe product and should

be taken off the market. We will hear later this morning from Dr.

Ron Davis, representing the American Medical Association. I do not

think anyone is going to suggest here the AMA is a radical group

with an axe to grind. They are known for championing causes

which are based on science. Yet, the AMA has forcefully called on

the U.S. Government to take ephedra-containing dietary supplements off the market.

We are also going to hear from a premier health consumer advocacy group Public Citizen. Dr. Sid Wolfe will discuss why Public

Citizen has also called on the government to protect the American

people from these dangerous ephedra products.

We will hear from those who have taken action to protect the

public. Dr. Howard Beales will testify on behalf of the Federal

Trade Commission about the enormous job the FTC is forced to do

to police deceptive advertising of ephedra products that some would

have you believe are natural and safe.

Bill Jeffery of CSPI in Canada will tell us about Canada’s efforts

to protect their own citizens. On January 9 of this year, the Canadian Government issued a warning, a warning which this government has never issued, about certain herbal ephedra products sold

for the purpose of weight loss, body building, or increased energy.

That warning urged Canadians to avoid the products because they

may cause ‘‘serious, possibly fatal adverse effects when combined

with caffeine or other stimulants.’’

When we hear from the first panel, when we hear from the parents of Sean Riggins, you are going to understand how children do

not have to drink coffee to get caffeine with these ephedra products.

Many of the ephedra supplements recalled by the Canadian

health authorities can be found on the shelves of stores across

America. These are examples right here of products containing

ephedra. I can tell you this. You go into any gas station where I

live in Central Illinois, where the Riggins family is from, and you

will find next to the cash register, there for kids to buy, all sorts

3

of ephedra products. You go into a convenience store, a gas station,

they are everywhere and kids are buying them, sometimes with

tragic results.

For the record, there are several other countries, such as Britain

and Germany, which have taken action to protect their citizens, as

Canada has. A variety of athletic organizations, the International

Olympic Committee, the National Football League, the National

Collegiate Athletic Association, have banned ephedra-containing dietary supplements.

We are going to hear from Frank Uryasz, representing the

NCAA. He will testify that in spite of this ban, a 2001 NCAA study

found 4 percent of 21,000 athletes, about 850 of them, who completed the confidential survey, had used ephedra in the past 12

months despite the ban. Even more disturbingly, this number has

increased since the ban at the NCAA went into effect in 1997, particularly among women’s teams. According to the study, most athletes, who reported using ephedra-containing products, started

using them in high school. The NCAA has also called on the FDA

to more tightly regulate ephedra products because of the harm they

can cause to athletes and others.

One young athlete who started using ephedra products in high

school is tragically no longer with us today. You see his photograph

here. Kevin and Debbie Riggins of Lincoln, Illinois, are going to

testify about the tragic death of their 16-year-old son, Sean, who

died on September 3, just over a month ago, of a heart attack after

taking an ephedra product known as ‘‘Yellow Jacket.’’ Yellow Jacket, incidentally, is also the street name for a narcotic. Coincidence?

My heart goes out to them. When I read this in the local newspaper, the State Journal Register, about the loss to their family, I

could not believe it. We just had a hearing on this issue, and here

it was hitting close to home with a healthy young man, just starting his high school year, looking forward to wrestling and football

and all of those sports. I want to thank them for coming here. It

takes real courage for them to stand up and tell their story so soon

after their loss.

But we need to remove these products from the market so other

families like theirs do not see their loved ones’ lives cut short for

the sake of an energy buzz or the loss of a few pounds. I am looking forward to today’s testimony to help us better understand this

issue and the responsibility we have to the American people.

After the last hearing, I sent a letter to Secretary Thompson at

the Department of Health and Human Services. I have spoken to

him on the phone several times about this issue. He has assured

me he is looking at it seriously. Unfortunately, he could not be here

today because of a trip to Afghanistan, which he had promised long

ago, and I understand those things. Conflicts are inevitable for

busy people like the Secretary. But I can tell you that letters are

not enough, and telephone conversations are not enough. We want

to find out today whether our government is going to take any action to protect the people who are being victimized by this drug

across America.

Our first panel of witnesses are Kevin and Debbie Riggins of Lincoln, Illinois, parents of Sean, and also joining them is Charles

Fricke, who is the Coroner for Logan County.

4

1The prepared statement of Mr. Riggins appears in the Appendix on page 53.

Mr. and Mrs. Riggins, I appreciate your willingness to appear

today and publicly share your personal experience. It is customary

in this Subcommittee to swear in the witnesses, so if you would not

mind, remain standing.

Do you solemnly swear the testimony you are about to give is the

truth, the whole truth, and nothing but the truth, so help you,

God?

Mr. RIGGINS. I do.

Mrs. RIGGINS. I do.

Mr. FRICKE. I do.

Senator DURBIN. Thank you very much, and the record will indicate that the entire panel has answered in the affirmative.

Mr. Riggins, would you like to begin?

TESTIMONY OF KEVIN RIGGINS,1 LINCOLN, ILLINOIS

Mr. RIGGINS. Yes. I just wanted to thank you, Senator, for bringing us to Washington so we can tell this story. I greatly appreciate

it.

I will begin by introducing myself. My name is Kevin Riggins.

This is my wife, Debbie, and the young man in the picture is our

son, Sean. We are here to tell his story. You have my written statement. I am not going to read that word for word. I just want to

tell you a little bit about my boy.

Sean was a very healthy young man. He started playing hockey

when he was 7 years old, first grade, when we lived in Peoria after

I separated from the service. He then got into the martial arts and

he was quite the martial artist. We attended tournaments all over

the Midwest, Indianapolis, Wisconsin, Peoria, Decatur, Bloomington, Springfield, all over the place. He has a stack of trophies

at home in his room. He achieved the rank of red black belt.

Later on, though, his passion turned to team sports, wrestling

and especially football. He was quite passionate about the game of

football. Again, my son was in outstanding condition. He lifted

weights. He exercised constantly. He would ride his bike, before he

got his driver’s license, all over Lincoln, down to the creek to go

fishing and swimming and that sort of thing, and that is why when

my son passed away and they told us that he had died of a heart

attack, I had no idea what to think. How does a 16-year-old boy

that active die of a heart attack?

That is when we spoke to Chuck Fricke. He called us after the

visitation and told us that they had found a substance known as

ephedrine in Sean’s system, or that the indications pointed toward

that being the case.

We started doing some investigating, along with Mr. Fricke. The

Lincoln Police Department started investigating with some of the

kids, Sean’s friends, his teammates, and we found out he was taking what is known as Yellow Jackets, which is an ephedrine product. This is over-the-counter. You can buy it in the gas station.

They are about $1.50 for three pills. That is pocket change for

these boys.

They are using it on the football team to enhance their performance, as it claims in the ads and what not. They are using it, the

5

wrestlers are using it and basketball players. We have got young

girls who are using it to try and help them lose weight.

None of these kids that we have talked to—and I know my son

never used drugs—none of these kids use drugs. They are not drug

users. They are not abusers. They do not smoke cigarettes. Sean

never smoked cigarettes. He never smoked marijuana. He did not

take drugs. Mr. Fricke can bear that out. He was passionate about

not taking drugs. He had a couple of friends that did smoke pot

and he was constantly after them about stopping, because he saw

his grandfather die of lung cancer and he did not want to see that

happen to anyone else.

The problem with ephedra, in my opinion, is that these kids do

not realize that it is a harmful drug. Whether they call it an herbal

supplement or a dietary supplement, that is just semantics. It is

a drug. Garlic is an herb. Bay leaf is an herb. But I have never

heard of someone dying from bay leaf. This herbal supplement

killed my son and I am just afraid that this can happen again if

these kids have access to this kind of stuff on a daily basis at the

gas station for a buck-and-a-half.

They put it in flashy packages. They have flashy advertising.

They gear it toward young people. It is not geared toward a 40-

year-old man that works 40 hours a week. This is geared towards

younger people.

What I think is that we need some type of regulation regarding

ephedra and like products because, again, this can happen again.

If a 16-year-old cannot get to it, it is not going to happen. They

cannot take it. So we should make it, at least I think where if you

are 18 and younger, you cannot get to this product. If a grown man

wants to take it, that is his choice. If a grown woman wants to take

it, that is her choice. But a child should not be able to make that

choice.

These companies that market this should have to be held accountable, because I do not feel that you should aim something at

a child. You can put all the warning labels you want on them, but

cigarettes have had warning labels on them for how many years

and people still smoke.

It is very simple. We can just effect a regulation making it illegal

to sell to kids. We enforce that regulation and we do not have to

go through this again, because I do not think that I could do it

again.

Senator DURBIN. Thank you, sir. Kevin, you made a point of

pointing with pride to this jersey that you brought from Lincoln.

Why don’t you tell me a little bit about the jersey.

Mr. RIGGINS. Sure. This was my son’s practice jersey. Obviously,

he was number 51. We put this out at the suggestion of one of his

friends at his visitation and all the kids and teammates and what

not came and signed this jersey. A good friend of mine is going to

build a display case for it so we can have this displayed in our

home. We also have big posterboards that the kids signed because

the shirt was not enough. We had close to 600 people come to our

visitation to see my son. That is a testimony to him, not to me, and

a testimony to the people that cared enough. That is what this jersey is.

6

1The prepared statement of Mrs. Riggins appears in the Appendix on page 55.

Senator DURBIN. Thank you. Debbie, can you tell us a little bit

about your thoughts on this?

TESTIMONY OF DEBBIE RIGGINS,1 LINCOLN, ILLINOIS

Mrs. RIGGINS. My feelings on the subject. I did not know the dangers of this product until September 3. I did not realize what it

could do, what its potential was, and it is being mismarketed in a

way that it is only there for somebody to make money and they do

not seem to care who they are hurting.

I brought a couple of letters from some of the students who went

to school with Sean.

Senator DURBIN. You might describe for the record here, Lincoln,

Illinois, the size of the town, so people get an idea of where we are

talking about—I know the answer, but I am going to ask you to

put it on the record. We are not talking about big city here, are

we? What is the population of Lincoln?

Mrs. RIGGINS. About 17,000.

Senator DURBIN. Seventeen-thousand.

Mrs. RIGGINS. We live about three blocks from the high school

and on the other side of the high school, there are corn fields.

Senator DURBIN. Small town America.

Mrs. RIGGINS. A small town. People ride bikes. Even the

grownups ride bikes everywhere. We have one theater. It is a place

where everybody can go to the store and they know somebody

there.

Senator DURBIN. So I just want to make the point that this product, this type of product is reaching down to all levels of America.

This is everywhere.

Mrs. RIGGINS. Oh, yes. It is right at their eye level. As soon as

they are standing in line for something, they see it right there and

they are going to pick it up and they are going to look at it. As

long as it has got the flashy colors on it, and they test market those

colors to see who is attracted to them. If they are going to spend

that kind of money on advertising and displaying it, they have got

to make some money—replace that money somehow. Kids apparently are easy targets.

Kids take it to get hyper so that they can stay up late, so that

they can stay awake the next day, some of them to study late because they have got a big test the next day, or they just did not

get enough sleep the previous night. This one kid stated that anybody can do it and it is cool to hear a friend say, ‘‘Hey, feel my

heart. I am speeding right now.’’ One of the students actually wrote

that. This other student says, ‘‘I have had experience with Yellow

Jackets and Stackers in the past years,’’ as a sophomore.

Students told us that at the end of eighth grade, it became popular, even more so with the freshmen year. One said, ‘‘Most people

and my friends took them because it gave them enough energy to

sit in a desk all day without feeling really tired or bored. It made

the day go faster.’’ Another reason given for using ephedra, a more

serious one was that it made them feel as if they were on speed.

People would take several at a time to keep them wired and

7

1The prepared statement of Mr. Fricke appears in the Appendix on page 56.

pumped up all day long, and I know or have heard some people

went as far as snorting them.

Another student wrote: ‘‘I took one pill before each meal and I

took these for about a week and then I quit. I wasn’t losing any

weight and I was always sick. I had terrible headaches that took

forever to go away, and in a while, I would be short of breath or

I would have this pain that hurt in my chest. After I stopped, I

tried the Stacker, too, and it had the same effects, but with more

pain.’’

So even the kids are learning, but unfortunately, they are learning at a price. We do not know yet if it is a long-term effect, if it

is one dose that is too much, is damaging them. But we need to

find out. We need to find out what is safe, and if it is safe. I do

not think it is. They took my only son and won’t bring him back.

Senator DURBIN. Debbie, thank you for being here. Chuck Fricke,

you have the responsibility as Logan County Coroner. You might

tell us a little bit about what that responsibility is for those who

are not familiar with the office and then tell us what you found in

this case.

TESTIMONY OF CHARLES FRICKE,1 LOGAN COUNTY CORONER,

LINCOLN, ILLINOIS

Mr. FRICKE. First of all, the coroner investigates any death that

is not a natural cause of death and he determines with his investigations the cause and manner of an individual’s death. Cause of

death in most instances is determined by a forensic pathologist

that does toxicology studies as well as external examinations of the

individual.

In this particular case, we were notified by the emergency hospital, Abraham Lincoln Memorial Hospital, that a 16-year-old boy

had died. You do not hear about 16-year-olds dying of myocardial

infarctions. At that time, we did not know what it was, but upon

examination by the pathologist, he came back with that, and I

says, ‘‘due to what? I mean, over-exertion? What is it?’’ He says,

‘‘Well, please, help us out in your examination externally by investigating.’’

I had the Logan Mason Health Department do an investigation

where the boys had been on the weekend, over at Clinton nuclear

power plant. We thought maybe something was in the water that

he had drunk or been exposed to. One of their witnesses told us

that he was Yellow Jacketing and the group was jointing. We

asked what that was. I had to investigate, like the family and most

people, to know what that was.

They told me that Yellow Jackets, as you have pointed out, come

in small little packages, or in this particular case, ephedrine is in

a pack of 60. The label tells you that it should not be sold to minors, that selling to a minor is prohibited. It is a dietary supplement and extreme energizer. This particular product says, ‘‘Do not

sell to minors. Distribution of this product requires a DEA license.’’

I asked the distributors at the Quick and Easy what that meant,

how they enforced it. They did not know. They did not have a license for it. They do not prohibit sales to minors. In fact, I had a

8

12-year-old go in and buy these products for me. My State’s Attorney says that we cannot prohibit the sale of these products even

if the warning says so. It is a manufacturer’s label, mislabeling, to

me. They think they are buying something illegal.

In the testimonies that Debbie has, it says that they would go

in and steal them because they did not think that they could buy

them, so they were starting to steal them. Then they found out

they could buy them legally. Now they are buying them in threes.

Some are buying them in groups of 60.

We had the city detectives, police department of Lincoln go out

to the high school to do investigations with the superintendent, the

principal, the athletic department and all sports. It was a shock to

them, because they did not know what ephedrine was. Only one of

the coaches understood what it was. They wrote a nice letter on behalf of the children, the consumers at the high school. They have

started a program and have made brochures about the ill effects

of ephedrine. They are trying to get the word out, because as you

and I were novices in this just weeks ago, we are finding out that

the schools and the kids are not novices in this.

How does a 16-year-old die of myocardial infarction? It was not

just a mild myocardial infarction. I had to ask the pathologist what

that meant. Troponin, which is an enzyme, a specific marker to the

heart, was at 100 level, the number 100. You and I as adults have

troponin levels of one or two on a normal day. The troponin in your

heart tells it to keep beating. When you are having a heart attack

at 50, 60 years old, 70 years old, it would be marked at four to five.

Think about it. Sean’s was at 100. The heart is racing so fast, it

just kind of could not do anything. He could not pump the blood

fast enough and that is the way he had a heart attack.

We have put out warnings in the newspapers. We have contacted

the schools. The schools have done their part about notifying their

athletes. We want to notify athletes and consumers everywhere,

not only in Central Illinois, all of Illinois, and the entire Nation so

that you can regulate this product more tightly so that the consumers understand what they are buying when they buy it.

The doctors that I have contact with, not one of them had a good

word—I am sure there are always therapeutic values that ephedrine is used for under controlled circumstances, under doctors’ care,

but we cannot take the 99 percent of the kids that are using this

and use them as examples for the one or two times that it is

healthful under a doctor’s supervision.

Senator DURBIN. Thank you very much. Let me ask you this, Mr.

Fricke. You stated this in your written testimony, but I want to

make sure it is a matter of the spoken record, as well. Do you believe that the death of Sean Riggins is consistent with his having

taken these ephedra products?

Mr. FRICKE. Let me read exactly, word for word, from the forensic pathologist. ‘‘It is our opinion that the acute myocardial infarction in this individual is consistent with the effects of ephedrine.

No other anatomic, structural abnormalities of the coronary arteries sufficient to cause myocardial infarction was identified in the

autopsy.’’ And with his health records and our investigations, it

proves that out.

9

Senator DURBIN. Of course, Kevin and Debbie have made that

case, too. This was not only a healthy young man, an active, athletic, vigorous person who was leading a very active life. So that

certainly bears it out.

You have the smaller version of Yellow Jackets with you, and as

I said earlier, you can just walk into any gas station in our part

of the world and you are going to find these hanging all over the

cash register for the kids to see. Then you take a look at one of

these. Now, this is their big deal. This is their $31.95 jar of Yellow

Jackets that they have for sale.

Do you know where they put the warning label on this, incidentally? You think it might be out here where you would see it. No.

You have to strip back the label and you have to read the back of

the label, and I am sure a lot of 14-year-old kids are doing this,

right, stripping this label back so that they can read this faded

printing on here that says, ‘‘Keep out of reach of children.’’ What

a joke!

We asked the people from this company to come forward today.

You will be shocked to know they could not make it. We do have

a representative from the industry here, and he will be speaking

to us later.

But I have to go back to Debbie’s point. At what point do you

draw the line here at making money? If you are peddling a product

to kids and you know it, and incidentally, this warning label says,

‘‘Sale to persons 17 years of age or younger is prohibited in Texas.’’

Do you know why? Because 20 States, I guess roughly 20 States

have decided the Federal Government is ignoring this problem and

the States are starting to impose standards because our Federal

Government, our FDA is ignoring this problem.

Canada has responded. The AMA has responded. Sports organizations have responded. But the American Government has not responded. And despite letter after letter, we have no action on this.

So the States are taking it in their own hands. I cannot think of

another time when we have dealt with this, where States have decided they have to regulate the sale of a product because the Federal Government is so much in the grips of this industry that they

are afraid to protect the American consumer.

Kevin, did you and Debbie see any indications of this heartbeat,

this racing, the speeding up of his heart? Did Sean ever talk to you

about this at any time?

Mr. RIGGINS. No, never. In fact, Sean was the type of boy—he

was a typical teenager. If he felt bad and he had something he

wanted to do, he probably wouldn’t tell you about it. If he had a

little bit of a cold or a stomach virus, if he wanted to go out and

go fishing that day, he was going to go fishing. He would not tell

you about that sort of thing.

A lot of these kids that we have talked to, they did not attribute

their symptoms initially to what they had taken. They just thought

that they were tired or they were catching a cold or a flu or something like that. They had—most of them had, no idea that this

product was what was making them feel bad.

Senator DURBIN. On the day of his death or the day before, was

there anything unusual about his behavior or anything he said to

you that, now that you look back on it, was a warning sign?

10

Mr. RIGGINS. There was nothing more than he had a headache—

and this is prior to our investigation of this product and this type

of thing—he had a headache and his stomach was bothering him.

That has happened, in 16 years, that happened who knows how

many times.

Senator DURBIN. Debbie, do you know anything——

Mr. RIGGINS. He went to the football game the night before, on

Monday night, and like Kevin said, he had to go to the football

game and he slept underneath the bench. How many times do you

know kids that would do that at a football game? Something was

happening, but we didn’t know. We just thought it was bronchitis

or some flu going on. He laid down during the game, or at least

in the first half. He got up the second half and met with—when

they go during the halftime—and he met with the team and then

he came back and sat on the bench.

He had his car with him at the time, so he wanted to drive home,

so he drove home, said his head hurt, his stomach was a little

upset, so he was going to go to bed. He took a Tylenol, I believe

he took a Tums for his stomach, and he went to bed that night.

I had to work the next morning. That is the last time I saw him.

Senator DURBIN. Chuck, you have gone around the community

there now and I know you have done an awful lot, and thank you

for that, because your speaking out has made a difference. It is

starting to get the word out, at least in our part of the world, about

the danger of these products. What is the prevalence? How frequently do you find that young people are using these?

Mr. FRICKE. WAND, a TV station out of Decatur, did a survey

and I called them this morning. They said they had 250 calls in

3 days regarding this and it was two-to-one that had ill effects with

ephedrine.

They also had a young lady that had taken it just one time, from

Effingham, and she went to bed and she woke up 4 days later at

Carl Clinic at Champaign. She had seizures and had gone into a

coma for 4 days, and her mother stood there and helped her get

through this. She was lucky to survive. She sent a note to us, Ms.

Spitz, wanting us to tell her story and to say that it does not take

a multiple of this drug. It does not take an active athlete running

in the 90- and 100-degree temperature. It was a house mother that

went to work, went to the grocery store, came home, went to bed

not feeling well, and had taken just one of these supplements.

Senator DURBIN. Now, if you take one of these with caffeine, it

really just aggravates it, doesn’t it, makes it worse.

Mr. FRICKE. If you look on the Yellow Jackets, it has 300 milligrams of caffeine. A Stackers has 200 milligrams. Some of these

children that I talked to in my investigation, they are tired, they

are exhausted, they have gone through 6, 7 hours of school. They

have had a school lunch. They have gone through 3 hours of football practice. They are tired. They are exhausted. And now they

have activities, they have homework at night. They are too tired

to eat.

They go to the local Quick and Easy. They pick one of these up.

They buy a product, if I may mention, products that contain caffeine in them that compounds the injury.

Senator DURBIN. Mountain Dew.

11

Mr. FRICKE. Mountain Dew, Code Reds, and I am not trying to

be negative to those products. I have drank those products, too. But

in combination with ephedra, and these children do not know it,

adds to the dangers. There is also an adrenaline rush drink out

there that they use.

The young lady that prohibits them in Mount Pulaski is on a voluntary basis, says that—and she knows that she has to tell these

to anyone, but she used these products herself in college and she

knows the ill effect. But her company tells her to put it out front,

so she has taken it from the front cash register and put it behind

her. Now you have to ask her to get it. And she puts out a warning

label that says on these warning labels that you can only sell two

per person per day, and she makes them show their ID, so it is

very inhibiting when you do that.

But other places that I have been, five, six different places, 12-

year-olds go up and buy this, and I think it is a big rush because

they get their heart racing. They do not know the dangers—when

you are 16, you do not think you can die until you are 60, 70, 80,

of old age. They become bulletproof and they think they are. And

unfortunately, I have the unfortunate task of going up to families

like the Riggins and telling them that their son died of a myocardial infarction due to a product that this government does not regulate, and we need to.

Senator DURBIN. Chuck, when it comes to activities in your community and nearby, public education is part of this, but is there

going to be any kind of follow-up effort at the schools to talk about

this problem?

Mr. FRICKE. I have talked to the superintendent of the Lincoln

Community High School and he has invited the parents and myself

to come out and not only just give an assembly to the entire school,

but I thought that on an individual basis or on a smaller scale, it

would be better. So I want to take the days and take the opportunity to talk to the gym classes so that you can break that 1,200

students down to 30 and 40 at a time, talk to them individually,

the athletic departments.

I want to talk and educate the coaches on this, and not only in

Lincoln, but I have to know that it is happening in Springfield at

the schools, at Litchfield, at Bloomington, at the small school levels, so that the athletic directors do not wake up themselves in the

community and find out and then they have to start where we

started. We started as novices and we are not going to let things

sit and go unabated.

We are going to reach out to these people. We have interviews

when we get back because we feel very strongly that we want to

get the word out. We do not mean to have an overkill on this, but

the more we can do it—this has been in the paper almost every

day, trying to put warnings out. We are putting it out on TVs, on

radios, and in the newspapers, and anything you can do to help us

on a local basis would be appreciated.

Senator DURBIN. This is a sad thing for me to say, but I am

going to say it. You are doing more to protect the people that you

represent than our Federal Government is doing to protect people

across America.

12

Mr. FRICKE. We speak for Sean today because he can’t speak,

and as the coroner, we investigate those things. He told us a story.

We had to listen to him. Not many people take that time to listen,

and we listened to what he had to say, and these are his words.

Today, this is for him.

Senator DURBIN. Thank you.

Kevin and Debbie, this had to be tough. When we invited you,

we didn’t know if you would do it, but as you said to me before this

hearing, you have got to do this for Sean, got to get that message

out so that some other family does not lose their only son, as you

have. I hope that your being here today and I hope that fact that

some people are watching this and following it will mean that they

may tonight pull their daughter or son aside and say, have you

ever heard of these things, Yellow Jackets or ephedra? Are any of

your friends involved with them? I mean, this is as insidious and

harmful and dangerous as a lot of drugs that are on the street that

we are warning kids, to just say no to. It is time for them to just

say no to Yellow Jackets and just say no to these products because

it can kill them.

Your coming here today drove that point home in a way that all

the witnesses in the world couldn’t. I am saddened for your loss,

but I admire your courage that you can tell this story and try to

save some other lives across America. Thank you for being here.

Mr. FRICKE. Thank you, Senator, very much.

Senator DURBIN. I now want to just take a few minutes as this

panel is leaving the table to review an interesting report that Congressman Henry Waxman’s Special Investigations Division staff

prepared, working with my own staff. This is the first independent

analysis of the adverse event reports that Metabolife finally has

given over to the Food and Drug Administration.

Chart 1 here, the Durbin-Waxman staff reviewed all 14,459 computer images that Metabolife provided us. This constitutes all the

adverse event report records that Metabolife, and I have some of

their product here before us, received since 1997, over the last 5

years. A new, database was created for analysis and staff individually reviewed each record. Records that indicated that consumers

had suffered a particular serious health problem were put into this

database.

The serious health problems analyzed were those already identified as being caused by ephedrine. They included cardiac symptoms, including heart attack, chest pain, arrythmia, racing heart,

high blood pressure; neurological symptoms, including stroke and

seizures; psychiatric symptoms, including psychosis, anxiety, and

mood changes.

The Metabolife records include over 1,900 reports of significant

adverse reactions to Metabolife products. Second chart here,

Metabolife’s adverse event reports. What we see is that they include 3 deaths, 20 heart attacks, 24 strokes, 40 seizures, 465 episodes of chest pain, 966 reports of heart rhythm disturbances. In

addition, the reports contain hundreds of consumer complaints of

high blood pressure and disturbing psychiatric symptoms, such as

anxiety, mood change, or psychosis.

In at least 46 instances, consumers reported that they required

hospitalization following use of Metabolife products. In at least 82

13

additional incidents, consumers reported they needed emergency

room care after using these products. In numerous adverse event

reports, consumers told Metabolife their doctors had determined

that Metabolife’s products had caused the adverse health effects

complained of.

The Metabolife records indicate that many of the significant adverse events involve consumers who were young, in good health,

and taking the recommended dosages. The next chart, this relates

to adverse effects reported by healthy young people at recommended doses. Metabolife has asserted that adverse events don’t

occur when healthy individuals follow their recommended doses.

The actual adverse event reports, however, include many reports of

significant health effects in healthy consumers taking recommended doses. Among the most significant are heart attacks,

seizures, strokes, and psychosis.

Over 90 percent of the reports where dosage information is

noted, consumers were taking the dosage recommended by

Metabolife and still suffered these results. Among the significant

adverse event reports where age is noted, over 50 percent of the reports involved consumers under the age of 35. In hundreds of cases

of significant adverse events, the consumers involved reported they

had no prior medical problems.

Metabolife’s handling of adverse event reports exhibits callous indifference to the health of their consumers. Fourth chart shows

careless handling of consumer complaints. Nearly 90 percent of the

reports of adverse event reports submitted by Metabolife omit basic

information, such as the age and gender of the consumer or the

date of the incident. Nearly one-third of the reports of adverse

events are handwritten with notes that are almost illegible. The

recordkeeping is chaotic. Chart 5, I think, shows that.

This is the company receiving reports from their consumers

about deadly symptoms, and look at the records that they are keeping on these. Here, we have a good example of a totally chaotic adverse event report. Looking at the record, you have no idea whether this is one caller or many callers, yet this person reported having a stroke. This is a very serious event, yet this is the level of

care that Metabolife gave to noting that event, this from a company

that claims their consumers’ health is their No. 1 priority.

The next chart is another example. A 25-year-old reports having

a stroke, yet Metabolife has no information on this report, just

three handwritten lines. In over 99 percent of the significant adverse event reports, there is no mention of Metabolife requesting

additional medical records needed for Metabolife to evaluate the

role of its product in this adverse events.

FDA regulations require drug manufacturers to report adverse

events including hospitalization, life-threatening adverse reactions,

or death within 15 days of receipt. In no instance did Metabolife

report adverse events involving hospitalization, adverse life-threatening adverse reactions, or death to FDA prior to its August 2002

submission. The Metabolife records contradict Metabolife’s claims

that it was unaware of consumer complaints of adverse health effects.

When we had our last hearing, we asked them how many adverse events had been reported to them and they only identified 78

14

adverse health effects. Now we all know better. They turned over

thousands of records to the FDA and we have taken the time to

go through them.

The next chart is a quote from Metabolife saying they did not

have adverse event reports against an example of a report that

they had received prior to their statement that they had none. On

repeated occasions, Metabolife told Federal regulators it never received reports of adverse health effects from its consumers. In February 1999, for example, Metabolife informed the Food and Drug

Administration, ‘‘Metabolife has never been made aware of any adverse health events by consumers of its products. Metabolife has

never received a notice from a consumer that any serious adverse

health event has occurred.’’

You have just seen them, charts with people who have reported

strokes, and Metabolife said they were never reported. They never

received such a report. Metabolife had received over 100 reports of

significant adverse events before these statements were made, including reports of heart attacks, strokes, seizures, and psychosis

that were received prior to the February 1999 statement to the

FDA.

The case of a 25-year-old female stroke victim that I mentioned

earlier was reported to Metabolife in 1998, and on this chart, here

we have a consumer reporting that in September 1997, they suffered heart damage that their doctor says was caused by

Metabolife. The record here is damning for Metabolife. They can

try to skip around their own words and disavow the common meanings of an adverse event in the English language, but I think it is

clear to any reasonable person that suffering a heart problem or a

stroke and reporting it to Metabolife is clearly the reporting of an

event that adversely affected the customer.

Finally, I want to point out one further item not mentioned in

the report but I think it bears on Metabolife’s real intentions to

avoid reporting. In Texas, there is a law that requires Federal

manufacturers to put the FDA MedWatch number on their products so that consumers suffering an illness that they believe may

be related to the product can report it to the FDA. While

Metabolife does comply with the law by putting the number on the

bottle, they failed to identify what the number is for. They failed

to identify it as FDA MedWatch.

The label reads, ‘‘TX:1–800–332–1088.’’ Below this number is the

phrase, ‘‘Health questions 800–490–5222.’’ That number is

Metabolife’s own call center, the last one I read. So Metabolife has

set up a system to divert people with health problems away from

the FDA and to their own call center, where the adverse event report may sit for years and years and years without any action.

Actions speak louder than words, and Metabolife’s own actions

contradict their glossy PR statements.

I would now like to call the second panel for testimony this

morning, if they would please come to the table. We have on this

panel Lanny Davis, counsel, on behalf of David Brown, the President and CEO of Metabolife International, Incorporated, a company

in the business of manufacturing dietary supplements; Dr. Howard

Beales, III, Ph.D., Director of the Bureau of Consumer Protection

at the Federal Trade Commission; Bill Jeffery, the National CoordiVerDate 11-MAY-2000 15:05 Apr 14, 2003 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 83482.TXT SAFFAIRS PsN: SAFFAIRS
15

1Question and response from Ullman, Shapiro & Ullman, LLP, New York, NY, for Mr.

Occhifinto appears in the Appendix on page 177. 2Questions and responses of Mr. Lanny Davis appears in the Appendix on page 166.

3The prepared statement of Mr. Brown submitted by Mr. Lanny Davis appears in the Appendix on page 59.

nator for the Centre for Science in the Public Interest at Carleton

University in Ottawa, Ontario, Canada; Dr. Ron Davis, a member

of the Board of Trustees at the American Medical Association based

in Chicago, and if I am not mistaken, I saw Ron Davis a week or

two ago in Chicago, is that correct?

Dr. RONALD DAVIS. Yes.

Senator DURBIN. Ron Davis is also, if I am not mistaken, a medical advisor to the Chicago Cubs. Did you not tell me that?

Dr. RONALD DAVIS. No, that is not me.

Senator DURBIN. Oh, I am sorry. Steve Adams, I think, came up

to me at a restaurant in Chicago and said, ‘‘I am the medical advisor to the Chicago Cubs and you are right on on ephedra. This is

dangerous.’’ Thank you for being here, Ron.

Dr. Sid Wolfe, the Director of the Health Research Group at Public Citizen; and Dr. Frank Uryasz, the Director of the National

Center for Drug-Free Sport in Kansas City, Missouri, for the National Collegiate Athletic Association.

Thank you all for coming, and I would like to note for the record

I invited Robert Occhifinto of NVE Pharmaceuticals, the manufacturer of Yellow Jackets, to testify. We were apprised late last week

he is on trial in New York and could not be here. Counsel for the

company has advised my staff that answers to any questions

should be sent in letter and they will try to respond.1 I am disappointed that Mr. Occhifinto couldn’t be here because I would like

to have him explain to us and to the Riggins family and others

about the product that he is selling.

It is customary to swear in the witnesses, so if you do not mind

rising again. Do you solemnly swear the testimony you are about

to give is the truth, the whole truth, and nothing but the truth, so

help you, God?

Mr. LANNY DAVIS. I do.

Mr. BEALES. I do.

Mr. JEFFERY. I do.

Dr. RONALD DAVIS. I do.

Dr. WOLFE. I do.

Mr. URYASZ. I do.

Senator DURBIN. The record indicates that all witnesses answered in the affirmative.

I would like you all to try to make your oral statements in the

neighborhood of 5 minutes and then I will ask some questions. Mr.

Davis, would you please begin?

TESTIMONY OF LANNY J. DAVIS, ESQ.,2 COUNSEL ON BEHALF

OF DAVID W. BROWN,3 PRESIDENT AND CHIEF EXECUTIVE

OFFICER, METABOLIFE INTERNATIONAL, INC., SAN DIEGO,

CALIFORNIA

Mr. LANNY DAVIS. Thank you, Senator, and thanks for giving me

the opportunity on behalf of Metabolife to present perhaps some

other perspectives.

16

But let me start by expressing personal, as well as a message on

behalf of Metabolife, to the Riggins family and to Mr. and Mrs. Riggins. We denounce and we condemn the abusive marketing practices of this company that resulted in the tragic death of this young

man. We denounce companies, such as the company that is responsible for Yellow Jackets, who aim at marketing these products to

young people, to athletes, who tempt them into abusive conduct

and who hide the dangers of misuse of these products from young

people.

And I am, unfortunately, with Metabolife associated with these

characters and we want to do whatever we can do, as you will hear

from my testimony, to clean the situation up in the industry and

to work with you and the FDA. You will have our wholehearted

support.

I would like to make three brief points, Senator Durbin, and I

hope even though I am outnumbered at the table that you will give

me an opportunity to speak once or twice again, if you think it is

appropriate.

The first point I would like to make, Senator, is that our product

is for weight control purposes and only marketed for weight control

purposes and only marketed for adults. Our label says, consult a

physician before you use our product for weight control. Whether

you go to a gym or take SlimFast or take Metabolife, our label says

consult a physician.

We also ask people to read our label carefully. We do not expect

young people to read the fine print, but we ask adults who take our

product under the supervision of a physician to read the label carefully. Dosage limitations are important. To those with preexisting

medical conditions, such as heart disease or high blood pressure,

we say, don’t take Metabolife. We want an educated public to deal

with the problem of obesity, which is the second biggest killer, next

to cancer, in America. But we don’t want people taking this product

who are not supervised by a physician and who don’t read our label

carefully.

We are even willing to pay for a public education campaign, in

light of some of these tragic results, to be sure that people under

the age of 18 are banned from using our product. We would urge

the Congress and State legislatures to require IDs and driver’s licenses before anybody under the age of 18 is allowed to use the

product. We do that for alcohol. Why not do it for ephedrine products?

Senator you have referred to the adverse event reports, and in

retrospect, there is certainly a lot that we could have done differently over the years and I have no problem conceding to you

that. But I would at least commend to you that when you use the

word ‘‘cause,’’ when you suggest causation, at least read the very

authorities that you have cited to raise a question whether these

anecdotal telephone calls constitute any evidence of anything.

The General Accounting Office would disagree with every word

in Congressman Waxman’s staff’s document that suggests causation. In fact, the Food and Drug Administration in their adverse

event reports was criticized by the GAO because of the unreliability

of some of these telephone calls.

17

One of the many adverse event reports that is relied upon by my

friends in the media and by my friends in the Congress when they

criticize ephedra and one of the numbers that you have used was

a 78-year-old woman who called the FDA and said Metabolife

caused her to menstruate. That is one of the adverse event reports

that is being relied on on that chart, at least the 1,400 number that

your staff and others have relied on from the FDA, not on the ones

that we gave to your Subcommittee, include that one. Another one

of the 80 deaths that you often hear about is somebody who died

in a car accident.

So all we are suggesting is, read the GAO report. The FDA on

its website says you cannot rely on these AERs for causation.

You cited the New England Journal of Medicine study and the

Mayo Clinic study. Both of those studies, Senator, are based upon

the very same AERs that the GAO said are not to be relied on.

They are not based upon clinical trials. They are based upon telephone call data that the GAO said is unreliable.

I suggest to you, respectfully, that when the New England Journal of Medicine was used by critics such as Dr. Wolfe in his Public

Citizen petition as a basis for asking for a ban, read the letter from

the authors of the New England Journal of Medicine report, Drs.

Haller and Benowitz, in a letter to the editor, who said you cannot

rely on our report as evidence of causation, the very same report

that the Mayo Clinic and everyone is citing.

So to conclude, Senator, let me tell you what we are for and let

me tell you what we at Metabolife would like to do. We applaud

your concerns and we applaud what you are saying about the FDA.

We have been asking the FDA to regulate this industry. We have

asked the FDA to ban 18-year-olds and under. We have asked the

FDA to set dosage limits based upon clinical trial results. We have

asked the FDA to impose national standards for manufacturing

practices.

And with respect to some of the unfortunate examples that have

been cited to criticize Metabolife on our voluntary recordkeeping,

unlike anyone else in the industry, we did this voluntarily. Nobody

required us to keep these records. The system evolved over the

years. We are not proud of some of those early years where we

were very haphazard about the records we kept, but we certainly

did include and we did voluntarily turn these over.

But we will say this to you, Senator, on and off the record—we

will support legislation imposing a national mandatory call reporting system to the FDA, with a consistent questionnaire, with required follow-up so that we have a database, a national database

that we can look at to achieve results. We also would certainly

work with your Subcommittee on anything that constitutes a

science-based regulation that would be aimed at adults who want

to deal with the problems of weight control.

I would also like to just finally ask you, as a matter of fairness,

Senator, I have known you for many years and you are one of the

most fair people that I have ever known, at 8:15 p.m. last night,

I received a fax of Congressman Waxman’s staff report. We turned

over these records to you and your staff almost 2 months ago. I understand and I certainly appreciate how hard your staff has been

working, but to hand over a report at 8 p.m. at night and then

18

1The prepared statement of Mr. Beales appears in the Appendix on page 79.

hand it out to the press in the morning, without my even having

had a chance to read it and observe it, is just unfortunate, and I

would at least appreciate your consideration to give us an opportunity, perhaps in another public setting with equal attention by

my friends in the media, to give us an opportunity to respond to

a report that we got in almost the middle of the night.

Thank you, sir.

Senator DURBIN. You went to bed early if 8:15 is the middle of

the night.

Mr. LANNY DAVIS. Well, I actually was up for most of the night

trying to read it, but I didn’t have any help, so——

Senator DURBIN. Thank you. Mr. Beales.

TESTIMONY OF J. HOWARD BEALES, III, PH.D.,1 DIRECTOR, BUREAU OF CONSUMER PROTECTION, FEDERAL TRADE COMMISSION

Mr. BEALES. Mr. Chairman, I am Howard Beales, Director of the

Bureau of Consumer Protection, Federal Trade Commission. The

Commission is pleased to have this opportunity to provide information concerning our efforts to ensure the truthfulness and accuracy

of marketing for dietary supplements, including weight loss products and other supplements containing the herbal ingredient

ephedra. Let me discuss the Commission’s mission and our latest

activities in the weight loss area, in particular. Please note that my

oral remarks and the answers to questions represent my own views

and do not necessarily represent the views of the Commission.

The mission of the Federal Trade Commission is to prevent unfair competition and to protect consumers from unfair or deceptive

practices in the marketplace. As part of this mission, the Commission has a longstanding and active program to combat fraudulent

and deceptive advertising claims about either the health benefits or

the safety of dietary supplements.

As the Subcommittee is aware, the dietary supplement industry

represents a substantial and growing segment of the consumer

health care market. It encompasses a broad range of products, from

vitamins and minerals to herbals and hormones.

There is no question that some of these products offer the potential for real health benefits to consumers. The scientific research on

the associations between supplements and health is accumulating

rapidly. Unfortunately, unfounded or exaggerated claims in the

marketplace have also proliferated.

The FTC Act prohibits unfair or deceptive practices, including

deceptive advertising claims made for dietary supplements. In addition, FTC law requires advertisers to have a reasonable basis for

advertising claims before they are made. We filed more than 80 law

enforcement actions over the past decade challenging false or unsubstantiated claims about the efficacy or safety of a wide range of

dietary supplements.

Included in these actions are four cases challenging unqualified

safety claims for supplements containing ephedra. These actions

have included products marketed as alternatives to street drugs,

such as Ecstasy, as well as body building supplements and energy

19

1The prepared statement of Mr. Jeffery appears in the Appendix on page 91.

supplements. We have additional non-public investigations pending

that include both safety and efficacy claims for ephedra products.

Under the FTC Act, an advertiser is required to have competent

and reliable scientific evidence supporting claims made in advertising before they are made. Thus, where advertising makes unqualified safety claims for ephedra products, we have challenged

those claims as deceptive.

The orders that we have obtained in these cases both prohibit

unsubstantiated safety claims and require a strong warning about

safety risks in all future advertising and labeling by those companies. In addition, the order against Global World Media Corporation for its marketing of ephedra as a street drug alternative includes a prohibition against marketing in media targeted at young

audiences.

Ephedra, of course, is frequently marketed as a weight loss product. We recently completed an analysis of weight loss product advertising. Our analysis found that 23 ads, or about 8 percent of the

300 ads we sampled, identified ephedra, ephedrine, or ma huang

as an ingredient. Of these, 11 made safety claims, or 48 percent.

Seven, or 30 percent, included a specific health warning about

ephedra’s potential adverse effects.

It is important to understand that these numbers almost certainly understate the prevalence of ephedra product advertising.

Sixty percent of the sampled ads that made a safety claim didn’t

identify ingredients, so we are not sure whether they were ephedra

products or not.

Finally, I would emphasize that in all of our dietary supplement

cases and particularly in cases raising safety concerns, we work

closely with and receive excellent support from the staff of the Food

and Drug Administration. The FDA has both the expertise and the

principal statutory authority to oversee the safety of dietary supplements. We view our activities on supplement safety as playing

an important supporting role to FDA’s more comprehensive efforts

to ensure the safety of dietary supplements.

In conclusion, I would like to thank the Subcommittee for focusing attention on this important consumer health issue and for giving the FTC an opportunity to discuss its role. The Commission

looks forward to working with the Subcommittee on initiatives concerning our dietary supplement program and our activities involving weight loss product advertising. Thank you.

Senator DURBIN. Thank you, Mr. Beales.

Mr. Jeffery, thank you for coming to this hearing from Canada.

We made reference at an earlier hearing to action taken by the Canadian Government involving this product and I am glad that you

are here today to tell us a little bit about that decision and about

your views on this important health issue.

TESTIMONY OF BILL JEFFERY, L.LB.,1 NATIONAL COORDINATOR, CENTRE FOR SCIENCE IN THE PUBLIC INTEREST

(CSPI), CARLETON UNIVERSITY, OTTAWA, ONTARIO, CANADA

Mr. JEFFERY. Thank you, Senator Durbin. My name is Bill Jeffery. I am the National Coordinator for the Centre for Science and

20

the Public Interest in Canada. CSPI is an independent health advocacy organization that is funded entirely by 125,000 subscribers to

our Nutrition Action Healthletter in Canada. CSPI does not accept

funding from industry or government.

I am pleased to have the opportunity today to address the issue

of how ephedra and other dietary supplements, or what we call

natural health products in Canada, are regulated. I was specifically

asked to address seven questions and my written statement contains full answers to all of those and I would ask that it be incorporated into the public record.

Senator DURBIN. Without objection.

Mr. JEFFERY. I will summarize my responses here. Following two

prior public advisories concerning health risks associated with

ephedra and ephedrine, Health Canada determined that, on the

basis of at least 60 adverse reaction reports and one death in Canada, and on the basis of similar international evidence, these products constituted a class one health risk for some vulnerable population groups. A class one health risk is defined by Health Canada

as ‘‘a situation where there is a reasonable probability that the use

of or exposure to the product will cause serious adverse health consequences or death.’’

Accordingly, Health Canada issued a voluntary recall of the offending products—I will describe what a voluntary recall is more

later—on January 8, 2002. CSPI supports the recall because the

small benefit of taking ephedra to lose weight, about one or two additional pounds per month for up to 4 months, is not worth the risk

of stroke, cerebral hemorrhage, heart attack, and death. Experts

may quibble over individual reports of adverse reactions, as Mr.

Davis has on behalf of Metabolife, but it is beyond dispute that

ephedra has triggered many serious complications and deaths in

the United States and Canada.

At least nine organizations in Canada issued notices of Health

Canada’s voluntary recall on their websites, including the Canadian Medical Association and the Canadian Pharmacists Association. In addition, the Canadian Health Coalition and the British

Columbia Medical Association publicly criticized Health Canada for

not taking even stronger steps to prevent the sale of ephedra-containing products.

Currently, the Canadian Food and Drugs Act and regulations do

not include a special regulatory category for herbal remedies. Accordingly, they are technically considered to be drugs and could be

regulated as such by Health Canada. However, until forthcoming

natural health product regulations are in place, Health Canada has

decided only to take regulatory action against natural health products posing health risks or making claims about the health benefits

in relation to 40 million diseases and health conditions specified in

the act.

On December 22, 2001, the Federal Government proposed a set

of regulations that, if approved, would establish a regulatory

framework for issuing revokable licenses for natural health products and for production facilities and for setting standards for good

manufacturing practices, speedy mandatory adverse reaction reporting, and labeling disclosures.

21

1The prepared statement of Dr. Ronald Davis appears in the Appendix on page 96

Currently, the Food and Drugs Act does not technically empower

the Minister of Health to issue mandatory recalls for either drugs

or natural health products. However, Health Canada’s experience

is that requests for recalls are almost universally respected, making it virtually unnecessary to resort to more rigorous enforcement

powers authorized in the act, such as seizing products or obtaining

injunctions against sale.

Health Canada also issued a voluntary recall and stop-sale directive for products containing the herb Kava on August 21 of this

year after receiving reports of four non-fatal liver toxicity cases in

Canada. Since November 1999, Health Canada has issued at least

11 other voluntary recalls involving 38 natural health products.

That is the essence of my submission, Mr. Chair. I would be

happy to entertain any questions you may have.

Senator DURBIN. Thank you very much, Mr. Jeffery. Dr. Ronald

Davis.

TESTIMONY OF RONALD M. DAVIS, M.D.,1 BOARD OF TRUSTEES, AMERICAN MEDICAL ASSOCIATION, CHICAGO, ILLINOIS

Dr. RONALD DAVIS. Good morning, Senator Durbin. You mentioned the Chicago Cubs when you introduced me, so perhaps I

should mention that I was born and raised in Chicago.

Senator DURBIN. Close enough.

Dr. RONALD DAVIS. I went to a lot of Chicago Cubs games when

I was growing up, and despite their lack of success through the

years, I do have a special place in my heart for the Chicago Cubs.

So if they do need some sort of consultation, I would be glad to

oblige.

Senator DURBIN. They need something, that is for sure. [Laughter.]

Dr. RONALD DAVIS. Consultation about health matters, not how

to play baseball.

I am Ron Davis. I am a member of the American Medical Association Board of Trustees and I am pleased to be able to testify

here today on behalf of the AMA, and I would like to thank you

and the Subcommittee for holding this hearing. As a preventive

medicine physician, I work at the Henry Ford Health System in

Detroit as Director of the Center for Health Promotion and Disease

Prevention.

The physician members of the AMA are very concerned about the

quality, safety, and efficacy of dietary supplements. The AMA believes that the Dietary Supplement Health and Education Act of

1994, or DSHEA, fails to provide for adequate Food and Drug Administration oversight of dietary supplements. We have urged Congress to amend DSHEA to require that dietary supplements be regulated the same way as are prescription and over-the-counter medications.

To respond to the six questions the Subcommittee has asked us

to answer, it may take a little bit longer than the 5 minutes allotted, but I will be as concise as I can.

Question one was, why has the AMA asked FDA to remove dietary supplement products containing ephedrine alkaloids from the

22

U.S. market? The AMA has encouraged the FDA to remove dietary

supplement products containing ephedrine alkaloids from the U.S.

market. We believe the FDA has sufficient cause to take action

under Section 402 of the Federal Food, Drug, and Cosmetic Act.

Under the FDCA, these products should be deemed adulterated.

They pose an unreasonable risk of illness or injury under conditions of recommended use in the labeling.

The AMA’s position is based on several considerations. The FDA

has received more than 1,000 voluntarily submitted adverse event

reports, or AERs, for ephedrine alkaloids. Some of these reports, as

has been mentioned already, describe death or serious injury in

young, presumably healthy adults. There are many, many more actual adverse events. In fact, one company alone recently admitted

to having received more than 14,000 AERs for dietary supplements

containing ephedrine alkaloids since 1995.

In 1996, after reviewing over 800 AERs, the majority of members

of the FDA’s own Food Advisory Committee reported that, ‘‘based

on the available data, no safe level of ephedrine alkaloids could be

identified for use in dietary supplements.’’ The Advisory Committee

recommended that the FDA remove ephedrine alkaloids from the

market. In 2000, FDA-commissioned outside experts reviewed another 140 AERs and reached similar conclusions. Unfortunately,

the FDA has not taken the advice of these experts.

It is difficult, we acknowledge, to prove cause-and-effect relationships based on voluntary AERs. However, we believe the FDA must

consider whether manufacturers’ claims of benefits outweigh the

products’ risks. Purported uses for ephedrine-containing dietary

supplements include weight loss, energy enhancement, athletic performance improvement, body building, and euphoria. The AMA

strongly believes that these uses are of questionable benefit, with

little, if any, clinical data to support efficacy. With the high number of AERs and the extremely questionable uses of ephedrine

alkaloids, the benefit-risk ratio of these products is unacceptable.

The second question was, do ephedrine alkaloids pose the same

risk for hemorrhagic stroke as phenylpropanolamine, or PPA.

Ephedrine alkaloids and PPA are sympathomimetic amines. Since

there have been no controlled clinical trials comparing ephedrine

alkaloids to PPA, we do not know if ephedrine alkaloids pose the

same increased risk for hemorrhagic stroke as PPA. While the

AMA supports controlled clinical studies on the serious adverse

events related to ephedrine alkaloids, these studies are not necessary to remove ephedrine alkaloids from the market immediately.

Question three, should herbal ephedra be available by prescription only in the United States? The AMA strongly supports the removal of dietary supplements containing ephedrine alkaloids from

the U.S. market. Whether ephedrine alkaloids that are regulated

as drugs should be available in the United States is an open question. The manufacturer would have to submit safety and efficacy

evidence to the FDA for pre-market review. If the evidence shows

a benefit-risk ratio that justifies approval for marketing, then the

products could be marketed as drugs.

Question four, what are the dangers of taking ephedra-containing products without medical supervision? Because of ephedra’s

effects on the cardiovascular and central nervous systems, it may

23

1The prepared statement of Dr. Wolfe appears in the Appendix on page 104.

cause arrhythmias or disturbances in the heart rhythm, heart attacks, sudden death, stroke, and seizures. These can occur in both

healthy individuals and in those with risk factors for these conditions. The risk of adverse events may increase when ephedrine is

combined with other stimulants, such as caffeine. The risk may

also increase depending on the content of ephedrine alkaloids,

which varies considerably from product to product and within different lots of the same product.

Question five, explain the difference between a patient taking a

prescription drug for obesity under a physician’s supervision and a

consumer taking an ephedra product for obesity without any

screening for medical conditions that would suggest that the consumer was a poor candidate. Obesity is a significant public health

problem in the United States. It should be categorized as a disease.

Appropriate treatment of obese patients requires a comprehensive

approach involving diet and nutrition, regular physical activity,

and behavior change. Emphasis should be placed on long-term

weight management rather than short-term extreme weight reduction. Physicians play an important role in promoting preventive

measures and encouraging positive lifestyles, as well as identifying

and treating obesity-related diseases.

The AMA concurs with the National Institutes of Health drug

treatment recommendations for adult obesity and believes that prescription anti-obesity drugs, such as Orlistat and Sibutramine, may

be given as an adjunct to nutrition therapy and exercise. Ephedracontaining dietary supplements should not be used for weight loss.

And finally, question six, has the AMA taken initiatives to ensure that, in discussing weight loss with their patients, physicians

explain the possible dangers of ephedra-containing products? The

AMA is currently developing a primer for physicians on assessment

and management of adult obesity for release next year. We would

be pleased to share this primer with Members of the Subcommittee

at that time.

In conclusion, because dietary supplements are classified as foods

under Federal law, they are assumed to be safe and are subject to

limited regulatory oversight. However, dietary supplements containing ephedrine alkaloids have significant risks which may be serious or fatal and far outweigh any benefit from the product. These

significant side effects, regardless how rare they may be, are unacceptable in the absence of proven benefits. For these reasons, we

urge the FDA to initiate proceedings to remove dietary supplements containing ephedrine alkaloids from the U.S. market.

Thank you again for the opportunity to testify before the Subcommittee and we would be happy to answer questions.

Senator DURBIN. Thank you very much. Dr. Wolfe.

TESTIMONY OF SIDNEY M. WOLFE, M.D.,1 DIRECTOR, PUBLIC

CITIZEN HEALTH RESEARCH GROUP, WASHINGTON, DC

Dr. WOLFE. Again, thank you and your staff for all the work that

went into this hearing. There has been a notable absence in the

last 12 years of constructive oversight such as this hearing, I think,

is attempting and succeeding in doing, of the FDA. One of the reaVerDate 11-MAY-2000 15:05 Apr 14, 2003 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 83482.TXT SAFFAIRS PsN: SAFFAIRS
24

sons, I think, that the FDA has run amok so much in the last 12

years has been not enough oversight.

This hearing is especially essential because of the extreme reckless negligence exhibited by dietary supplement companies who

continue to sell ephedra-containing products and because of the industry enfeebled Department of Health and Human Services, including the FDA, that has thus far allowed the companies to get

away with continuing to manufacture and push these deadly drugs.

The next minute or two of information, I confirmed yesterday

after I turned in the testimony, so it is something that is not in

the version you have, but I think it is probably as important as

anything I have to say. It has to do with the fact that the U.S. military, in a way, is putting HHS and FDA to shame.

I have learned from a fairly high-ranking military health professional that from 1997 through 2001, there were 30 deaths among

active duty personnel in the Armed Forces—Army, Air Force,

Navy, and Marines—in people who were using ephedra alkaloids.

All were between the ages of their early 20’s and early 40’s. All had

been in good health prior to their deaths. There was no other explanation for their deaths.

Since then, there have been three additional deaths associated

with the use of ephedra products in the Army alone, so we are talking about 33 deaths in about 1.4 million active duty personnel. To

be sure, the reporting is much better in the Army, Navy, Air Force,

and Marines than it is in the general population, but if this is any

glimpse as to what the problem nationally would be if we had better reporting, we are talking about hundreds, if not over 1,000

deaths that may well have occurred in people using these products.

The history of medicine precedes the more recent science of epidemiology. Most of the associations and causations that we know

between products, environmental, occupational exposures, and disease are from case reports, case reports looked at very carefully in

which you could not find any other explanation.

Partly as a result of these 33 deaths and other serious non-fatal

adverse events in military personnel associated with ephedrine, in

July of this year, memos were sent to all Army and Air Force military exchanges and commissaries worldwide stating that by the

end of August, just a month-plus ago, all ephedra-containing products should be removed from the shelves in these military posts for

6 months until the results of the HHS ephedra review are released.

One of the most interesting statements I found in conjunction

with this ban in the military bases—the Marines had banned it

last year on their bases—was a statement by an Army physician,

Dr. DeKonning, and it really speaks again to the whole existence

of these products anywhere. He is talking about them on military

bases. ‘‘The sale of ephedra-containing products by these military

facilities is seen by our soldiers as an affirmation that their use is

safe and acceptable,’’ and I think that generally the country believes that the existence of these on the market, in supermarkets,

gas stations, anywhere else, is an affirmation by the government

that the use is safe and acceptable, and it is not.

I will now again, as Dr. Davis did, get to some of the questions

that you would ask. One, you asked for the basis for our September

5, 2001, petition with Dr. Ray Woosley of the University of Arizona

25

to ban the manufacture and sale of all ephedra-containing supplements. Two questions need to be asked before answering this. One

is, do drugs which are related to epinephrine, or adrenaline, such

as ephedrine, phenylpropanolamine, amphetamines, and similar

drugs, cause an increase in blood pressure, constriction of blood

vessels, an increase in heart rate, or an increase in cardiac arrhythmias? The answer is unequivocally yes, and this has been

known and published about for decades.

The second question is, is there evidence that these drugs can

cause stroke and heart attacks in people because of causing an increase in blood pressure, constriction of blood vessels, heart rate,

or cardiac arrhythmias? Again, the answer is unequivocally yes for

all these drugs.

We discovered, in a document that I don’t believe your Subcommittee staff had seen before, a memo from the head of drugs

at the FDA, from 21⁄2 years ago, on a request from the Food Safety

Division of FDA to do a thorough look at all these case reports, and

Dr. Woodcock, in concluding what her own epidemiologists had

found in reviewing these reports, stated that ‘‘at least 108 of the

reports’’—these were clinically significant cardiovascular and central nervous system reports—‘‘that were analyzed provide very

strong evidence in support of a causal relationship between

ephedra alkaloid-containing dietary supplements and the adverse

events, particularly in light of the known pharmacodynamic effects

of these alkaloids, such as increased pulse, blood pressure, and arrhythmias.’’

Again, the question that you asked Dr. Davis, is there some incongruity between what happened with phenylpropanolamine and

what has not happened with ephedra? There clearly is. This is a

dangerous deja vu to where we were 10 or 12 years ago with phenylpropanolamine. There were far fewer reports of death and these

serious problems with phenylpropanolamine than we now have

with ephedra, and yet the FDA bought into an industry-hatched

scheme to do a study and thereby delay taking this off the market.

With PPA, dozens or more lives were lost and many people permanently damaged between the time FDA clearly should have

acted and when they finally got the drug off the market. To repeat

this fatal mistake with ephedra is to fail to learn the lessons of history.

Another question had to do with how do you look at the benefitrisk analysis for these products. Thirty years ago—more than 30

years ago—an FDA physician was removed from his post because

he said obesity is a chronic disease and there is no evidence that

these drugs affect the course of the disease over the long term. He

used this logic to reject the FDA approval then of a drug called

Pondimin, or fenfluramine, the same kind of chemical that was in

the noted notorious fen/phen and which has now been taken off the

market. I think the statement is still true. In the long term, as Dr.

Davis said, the policy has to focus entirely, I believe, not just largely, on diet and exercise kinds of approaches as opposed to drugs.

You also asked us about our own petition earlier this year to ban

Meridia Sibutramine, which again has some properties that are

amphetamine-like. At the time that we filed our petition in March,

there were 19 reported cardiovascular deaths in people using the

26

1The prepared statement of Mr. Uryasz appears in the Appendix on page 112.

drug, far fewer than with ephedra. The fact that there is no evidence of long-term benefit with either Meridia or ephedra means

that the benefit-risk ratio is completely unfavorable, or as Dr.

Davis said, unacceptable.

Senator DURBIN. Dr. Wolfe, if you could wrap up, please.

Dr. WOLFE. I can. I just have one or two more points to make

and I will.

You already have gone over the issue of the Mayo Clinic study,

where most of the people were taking the recommended dose, sort

of disproving the idea that you have to have high doses.

The final thing I want to say is this is not really a question of

scientific or medical evidence. It is a question of politics and the

extraordinarily dangerous political cowardice of the FDA and Secretary Thompson in the face of massive lobbying by ephedra makers, such as Metabolife, in Washington. Is the FDA still part of the

Public Health Service or is it a drug sales promoting adjunct to the

pharmaceutical and dietary supplements industries? De facto drug

pushers include those who refuse to use their legal authority to remove a well-documented, unequivocal hazard to the public from the

market.

There is no doubt that these products will be banned in the

United States. The question is not whether, but when. Delaying

tactics, such as the RAND review that the government asked for,

are costing lives as the day of reckoning for ephedra is thereby delayed. There are few issues that the AMA and Public Citizen agree

upon. Tobacco and ephedra, which Ron and I have worked on together for a long time, are two of these. The FDA has been rejecting the opinions of its own consultants and staff, such as Dr.

Woodcock, on the dangers of ephedra alkaloids.

Senator DURBIN. Thank you very much, Dr. Wolfe.

Mr. Uryasz, thank you for being here.

TESTIMONY OF FRANK D. URYASZ,1 PRESIDENT, NATIONAL

CENTER FOR DRUG FREE SPORT, INC., KANSAS CITY, MISSOURI ON BEHALF OF THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

Mr. URYASZ. Thank you, Senator Durbin, for allowing the NCAA

to inform you of the Association’s work in the area of deterring the

use of ephedrine. I am Frank Uryasz. I am President of the National Center for Drug Free Sport, a private company in Kansas

City, Missouri. We provide drug testing and drug education programs for athletic organizations and our clients include the National Football League, the NCAA, and many colleges and universities.

Drug Free Sport administers the drug testing program for the

NCAA, and accordingly, the NCAA asked me here to represent it

today. Joining with me are Mary Wilfert and Abe Frank from the

NCAA national and Washington offices. I am representing about

1,200 colleges and universities, 360,000 student athletes who are

competing at these schools.

One of the principles that guides the NCAA is that the NCAA

and its member institutions have a responsibility to protect the

27

health and safety of the student athletes, and the NCAA commits

significant resources to meet that principle. Those resources include a full standing committee of medical experts, the NCAA Committee on Competitive Safeguards and Medical Aspects of Sport.

They issue sports medicine guidelines on educating athletes about

dietary supplements. The NCAA employs health and safety staff in

their national office in Indianapolis. They have national drug testing programs, educational seminars, and they conduct national research regarding drug and supplement use among athletes.

Since 1985, the NCAA has conducted a national drug and supplement use survey. It has been replicated every 4 years. Over 21,000

student athletes participated in the most recent survey in 2001.

Prior to the 1997 replication, the NCAA Competitive Safeguards

Committee, their medical committee, was monitoring the growing

use of dietary supplements, and accordingly, on the 1997 study included questions for the athletes about their supplement use and

specifically ephedrine use. Three-point-five percent of the athletes

surveyed reported that they had used ephedrine within the last

year, and the highest use was in the sport of wrestling, at 10.4 percent. Fifty-one percent of users said they used ephedrine primarily

to improve their athletic performance, and many used right before

or during practice or competition.

The NCAA was concerned that the use of ephedrine was being

so closely linked to athletic performance and the committee recommended in July 1997 that ephedrine be added to the list of

banned drugs. The NCAA has two national drug testing programs,

and accordingly, has a list of banned substances and ephedrine has

been included in that list since 1997.

The NCAA instituted drug testing at its championships in 1986

and any NCAA athlete competing at those championships and bowl

games is subject to the strict drug testing rules of those events. Approximately 1,500 athletes are tested at those events each year and

any who test positive, including those who test positive for ephedrine, lose their collegiate eligibility for at least 1 year.

The second drug testing program was implemented by the NCAA

in August 1990. It applies to about 10,000 student athletes each

year and its focus was to deter the use of anabolic steroids.

In 2001, the NCAA replicated its national drug use study and

found that the use of ephedrine had actually increased and that 24

percent of the athletes said they used it to improve performance,

22 percent used it as an appetite suppressant, 22 percent for health

reasons, and 20 percent said to improve their appearance. Due in

large part to the 2001 survey findings, the NCAA decided to add

ephedrine to its year-round drug testing program, and accordingly,

about 10,000 athletes will be tested for ephedrine this year.

The NCAA’s prevention efforts are significant. The NCAA funds

the Dietary Supplement Resource Exchange Center. The REC provides a toll-free number and website for student athletes to get reliable information about the effects of supplement use. Any reports

of health effects are automatically reported to the FDA MedWatch

program. The NCAA has educational programs. They publish posters deterring the use of supplements, including ephedrine, sponsor

educational conferences, has a national speakers’ bureau of experts

to talk about supplement use, and has issued a number of reports

28

in The NCAA News and even sent an advisory to all NCAA schools

in the summer of 2001 about supplements.

All of the NCAA schools have agreed to legislation not to distribute supplements that fall outside specific restricted categories

and ephedrine is prohibited under any circumstances.

Ephedrine, as you know, is contained in a multitude of sports

supplements, energy bars, power drinks, and supplement pills. It

is fair to say those of us who educate young people on the dangers

of supplement use feel like the proverbial lone voice in the wilderness of supplement marketing.

The NCAA is committed to reducing the demand side of the dietary supplement problem in sports. The organization wishes to

make known today that it is willing to partner in any national effort that will enhance student athlete health and safety. Thank

you.

Senator DURBIN. Thank you, Mr. Uryasz.

I thank the entire panel. I would like to ask a few questions.

There, incidentally, is going to be testimony this afternoon from Dr.

Lester Crawford from the FDA.

Let us have this as a starting point. Most people are surprised

when I talk to them about this issue because they think, mistakenly believe, that when it comes to a lot of these products, the Federal Government is in on this, that we are doing things to protect

consumers. They mistakenly assume that when it comes to products like dietary supplements with ephedra or ephedrine, that the

Federal Government, the Food and Drug Administration have

watched it carefully all the way through the process.

Now, when it comes to drugs, and I defer to Dr. Davis or anyone

else here who would like to step in if I miss a point here, the Food

and Drug Administration has a responsibility to determine that

drugs are safe and effective, two very basic but important standards, and to establish their safety and efficacy, they go through

clinical trials for years to make certain that they are safe and effective, and once having been approved by the FDA, they are carefully

monitored as to the way that they are manufactured so that it is

done in a healthy and safe way, and then carefully monitored in

terms of the impact they have on the general population once released for sale.

This applies to over-the-counter drugs as well as pharmaceutical

drugs, and as a result, adverse event reports become very important, because if you start learning that thalidomide is causing

genetic problems and birth defects in babies, this otherwise what

appeared to be safe drug is going to be studied more carefully or

removed from the market, which happened.

Mr. LANNY DAVIS. Senator, may I try to answer that one?

Senator DURBIN. When I get finished, you may.

Mr. LANNY DAVIS. I am sorry. I thought you were done.

Senator DURBIN. And then, of course, the question is whether or

not these adverse event reports are accumulated and reviewed by

the government to see if something is happening about a drug that

they otherwise thought might have been safe, and if that conclusion is reached, it might be removed from the market, as thalidomide was removed.

29

In the situation here when we are dealing with dietary supplements, the only prohibition is from making any explicit health

claim related to treating a disease. Good manufacturing practices

as to how Yellow Jackets or Metabolife are being made are in the

process of being established. We passed this law 7 or 8 years ago,

1994, if I am not mistaken, but it really is a totally different situation.

The government’s involvement in the approval, review, and monitoring of this particular product is virtually zero, negligible. The

government’s approval of Yellow Jackets, same thing, not involved

in it, really. If they don’t make a health claim that brings in the

FTC, they do what they want to do, and that is what leads us to

this hearing today and what leads me, Mr. Davis, to ask you, did

Metabolife mislead the Food and Drug Administration in 1999

when it informed them, ‘‘Metabolife has never been made aware of

any adverse health events by consumers of its products’’?

Mr. LANNY DAVIS. Senator, I will answer that question, and

then, if you would give me an opportunity, I would like to also address your earlier comments and some of my prior colleagues’ comments.

First of all, it is my understanding this matter is under investigation by the authorities. The sentence expressed by the individual that you have mentioned expressed the understanding that

adverse event reports meant some link to a causation analysis.

That is what I have been told was the understanding, and beyond

that, since this is under investigation, it is just not possible for me

to comment any further.

Senator I know I am outnumbered and I know there is a very

powerful set of colleagues and persuasive colleagues sitting next to

me, but——

Senator DURBIN. Mr. Davis, I might add that if Mr. Occhifinto

of NVE had accepted our invitation, you would not be so outnumbered.

Mr. LANNY DAVIS. But we are here and we are here to respond

and, gratefully, to be allowed to respond to your concerns and the

concerns expressed here. I would like to raise, in response to your

inquiry about the Food and Drug Administration and what it does

or does not do, that it does regulate over-the-counter drugs. I would

like to make four points here.

First, it does regulate over-the-counter drugs. There is an overthe-counter drug called Primatene Mist. Primatene Mist has 150

milligrams of ephedra in it. It is used for therapeutic purposes as

a bronchodilator. There is no restriction on having a cup of coffee

with Primatene Mist and we, in fact, on Metabolife’s label restrict

use to less than 150 milligrams for an entire——

Senator DURBIN. I am going to stop you right there, because let

me ask you this question. Metabolife 356, does it contain both

ephedra and caffeine?

Mr. LANNY DAVIS. Correct.

Senator DURBIN. Is there any over-the-counter drug approved by

the Food and Drug Administration which contains both ephedrine

and caffeine?

Mr. LANNY DAVIS. I am not aware of any, but I would ask——

30

Senator DURBIN. As a matter of fact, before you go further, it has

been banned since 1983. So this product could not be sold over-thecounter under FDA approval. So you may talk about Primatene

Mist, but there was a decision made 20 years ago that the combination that you have in this drug is not safe enough to be sold to

Americans, and yet you continue to sell it as Metabolife 356. Please

proceed.

Mr. LANNY DAVIS. Senator, I think you——

Dr. WOLFE. Can I respond, because he has made a very misleading statement.

Senator DURBIN. I will let him finish.

Mr. LANNY DAVIS. Senator, I think in fairness, I do not think it

is fair if I do not have a chance to finish my point.

Senator DURBIN. You are being given plenty of time, Mr. Davis.

Mr. LANNY DAVIS. All right, thank you, and I know that you will

allow me, and I am sure that there are responses to everything I

have to say.

Regarding your comment on an over-the-counter drug, you are

absolutely correct, but there is nothing that the FDA has ever imposed as a restriction on taking caffeine along with Primatene

Mist, is my only point, and if there were a danger, one would think

that the FDA would provide that.

The three facts that I want to bring to your attention, fact No.

1, Senator, there are 30 studies over the last 15 years, many of

them involving clinical trials of human beings taking ephedra-caffeine combinations similar to Metabolife and placebo, double-blind,

peer reviewed, published studies, one recently by Harvard and Columbia University that has been published, and many others that

have shown that when dosage limitations similar to our label and

other preexisting medical conditions are avoided, that we tell people not to take our product if you have the preexisting medical conditions listed on our label, clinical trials involving human beings,

there has never been a single instance where the placebo group

showed more significantly fewer or less severe adverse events than

the group using Metabolife and caffeine. That is over 15 years and

30 such studies.

Now, I ask you to ask any colleague here, I asked Dr. Davis, my

counterpart with the great last name, on national television, can

you cite a single clinical trial involving human beings, supervised

by a scientist and published anywhere, that has shown a significant difference in adverse events between the placebo group and

the——

Senator DURBIN. I think you have been given ample opportunity.

Before I ask Dr. Davis to testify, pause and reflect a moment what

the industry is saying. The government has to prove that there is

something wrong with the product. This is exactly the opposite of

what happens with the Food and Drug Administration in terms of

drugs sold by prescription and over-the-counter in America. When

it comes to these drugs, the companies have to prove first that they

are safe instead of the government proving that they are unsafe,

and that really is why we have created, I guess why some voted

to create this exception here.

Dr. Davis, if you would like to respond.

31

Dr. RONALD DAVIS. Senator Durbin, you have really struck at the

crux of the issue just a moment ago, an issue that we believe is

central to this whole debate, and that is, should dietary supplements be exempted from the normal regulatory procedures that are

outlined in law for over-the-counter and prescription medications.

An exemption written into the DSHEA law in 1994, we think was

a mistake. As a result, as you pointed out, prescription and overthe-counter medications have to be shown pre-market to be safe

and effective, underscoring the word ‘‘pre-market.’’ That is No. 1.

No. 2, the burden of proof for prescription and over-the-counter

medications is on the manufacturer to establish safety and efficacy

based on valid scientific studies. But for dietary supplements, instead, companies are allowed to manufacture and market these

products and you get to a point where thousands or millions of people are using them without any of that pre-market proof, and then

the burden of proof, as you said, is on the FDA to show harm after

thousands or millions of people have already been using them and

after serious injury and deaths have occurred.

Beyond that, with over-the-counter and prescription medications,

the adverse events are required to be shared from the manufacturers to the FDA, whereas in the case of dietary supplements, that

requirement is not there in the law. And so as a result, we have

had the difficulty that you have talked about with regard to

Metabolife. So we believe that the 1994 legislation should be

changed so that dietary supplements face the same sort of regulatory oversight as over-the-counter and prescription medications.

Senator DURBIN. Mr. Jeffery, when you listen as a Canadian, interested in public health and following your country’s debate here,

when you listen to this debate which I have just outlined, where

in 1994 we created a new category, dietary supplements and vitamins and minerals and the like, and said that we are going to treat

them differently in terms of the government’s responsibility, can

you give us any kind of perspective from your point of view as to

how Canada has viewed this and how they reached the decision to

take the very same products that FDA will not address off the market?

Mr. JEFFERY. Yes. It seems clear that both the Food and Drug

Administration and Health Canada have had access to the same

body of scientific evidence. In fact, the death rate attributable to

ephedra and ephedrine-containing products in the United States, if

anything, is ten times as high per capita in the United States as

in Canada. If Dr. Wolfe’s estimates are borne out, it may be 100

times as high.

Senator DURBIN. Wait a minute. Let me make sure it is clear on

the record. You are saying that the adverse events, serious adverse

events in the United States are tenfold larger than what you experienced in Canada——

Mr. JEFFERY. Right.

Senator DURBIN [continuing]. And yet you have had a recall of

dietary supplements containing ephedrine.

Mr. JEFFERY. To an outside observer, the difference in approach

of the two countries is really only explainable by two things. Either

the DSHEA Act has completely undermined the Food and Drug Administration’s authority to protect American citizens, or the Food

32

and Drug Administration believes that American lives are cheaper

than Canadian lives.

Mr. LANNY DAVIS. May I respond, Senator?

Senator DURBIN. Who is asking to respond? Do you want another

chance?

Mr. LANNY DAVIS. Please, very briefly. First of all, Senator, we

believe we should have to produce positive evidence of safety, not

negative evidence of danger. I understand your point about

DSHEA. We believe there should be affirmative evidence of safety

for our product to be used just for weight control. Senator, let me

read you the sentence——

Senator DURBIN. I want to make sure I understand it. You are

saying that you believe your industry should have a responsibility

to affirmatively prove the safety of your product?

Mr. LANNY DAVIS. Correct, not——

Senator DURBIN. Before it is marketed?

Mr. LANNY DAVIS. Not by statute. That is the difference between

DSHEA.

Senator DURBIN. Then how would you enforce that?

Mr. LANNY DAVIS. Well, we are doing it—let me read to you one

recent study, and if there is any doubt about the validity of this,

we can go back 15 years. This is the Harvard and Columbia study

that says—it was a 6-month study—‘‘compared with placebo, the

tested product produced no adverse events and minimal side effects.’’

Second, regarding my colleague from Canada, who I greatly respect, Senator, the background rates—this is a fact—the background rates for heart attack, seizure, and stroke in the general

population of the United States, according to Dr. Kimmel of the

University of Pennsylvania, is no different than the rates of those

occurrences by people taking ephedra-based products for weight

control. Let me repeat that. This is not tobacco. This is not a statistical aberration that Dr. Wolfe argued from in his Public Citizen

petition, the Mayo Clinic using the same AER data, everybody

using AER data that even my colleague, Dr. Davis, agrees is not

reliable. Fact, the background rate of these occurrences in the general population are the same percentages, according to Dr. Kimmel,

as you find among Metabolife users.

I am only using that to suggest that if we are going to ban a

product, rather than what I agree with you on is strict and tough

regulation, then I would suggest we need science, not junk science,

as a basis for public policy, based on fact, not innuendo.

Senator DURBIN. Mr. Davis, you are a very skillful lawyer and

I respect you for that.

Mr. LANNY DAVIS. Thank you.

Senator DURBIN. But I would just tell you that there were several things here that argue against your case, and I think very convincingly. The reed that you are hanging on to is Boozer’s study.

Are you aware of the author of that study, Carol Boozer, in a deposition for the case of Harvey Levin v. Twin Labs, stated that her

study was not designed to study safety, in spite of its title? In

speaking about the small sample size, Dr. Boozer said, ‘‘The number of subjects was based on the outcome of weight loss and we did

not conduct a power analysis to determine the number of subjects

33

for other parameters.’’ She discounted the use of that study, which

you are hanging on to with all of your strength as the basis for defending your industry.

Let me also tell you that I am troubled when we have to parse

words here and think about causation. Dr. Davis and the AMA

have been involved in tobacco wars, on my side, thank goodness,

for many years and we have fought this battle. Does tobacco cause

cancer? Does it cause heart disease? You can remember all of the

‘‘scientists’’——

Mr. LANNY DAVIS. Yes.

Senator DURBIN [continuing]. Who came out to show that, no

connection whatsoever. We played that game for 40 years in America.

Let me just tell you, I cannot understand how Metabolife could

be collecting all these adverse event reports, scribbling them on little pages, and ignoring them and really misrepresenting to the

Food and Drug Administration whether you had even received

them because you were not sure they were caused by your product.

Those people found your company. They called your company. They

believed they were caused, and in some cases, they had doctors to

back them up.

So to argue here today that you are now going to be reformers

in the industry, you are the ones who are going to step forward,

but don’t do it with law, let us take care of ourselves——

Mr. LANNY DAVIS. No——

Senator DURBIN. Excuse me, because I do not think you have a

good track record.

Mr. LANNY DAVIS. Please let me respond to correct that last

statement. First of all, we want a Federal regulation by the FDA.

We agree with the AMA and others at this table, the FDA won’t

regulate us the way we want to get rid of some of the bad apples,

like Yellow Jackets. We want a Federal requirement for national

call reporting so these anecdotal reports that you have criticized

don’t happen again.

Finally, let me also remind you that I am not just citing BoozerDaley, which is a peer reviewed, published study, an out-of-context

quote, I must say. I am quoting 30 studies, Senator, 30 over 15

years, all of them showing no difference between placebos and control groups or other studies. The only evidence my colleagues are

citing are anecdotal data.

Let me give you anecdotal data. Aspirin, in 1 year, 16,000 calls

were made to the American Association of Poison Control Centers

in Atlanta, 16,000 in 1 year. Of those, 5,900 were described by the

National Center as adverse event reports.

Senator DURBIN. Mr. Davis——

Mr. LANNY DAVIS. Acetaminophen, Senator——

Senator DURBIN. Mr. Davis, you have been given plenty of

chances.

Mr. LANNY DAVIS. I just wanted to point out acetaminophen.

Senator DURBIN. I would like to chair the hearing for a while, if

you don’t mind. Let me just add——

Mr. LANNY DAVIS. OK. Thank you for letting me speak.

Senator DURBIN. You are entitled to speak, but let me tell you

what. Anecdotal evidence includes Sean Riggins. Anecdotal eviVerDate 11-MAY-2000 15:05 Apr 14, 2003 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 83482.TXT SAFFAIRS PsN: SAFFAIRS
34

dence includes the experience at the NCAA. Anecdotal evidence includes the people who died in Canada leading them to make a decision to ban your product. But it was a scientific conclusion that

when you put all that evidence together, the product that you are

selling is more likely to harm people than to help them.

Mr. LANNY DAVIS. Not if it is used according to our label, Senator. We believe that it should not be used——

Senator DURBIN. Mr. Davis, please.

Mr. LANNY DAVIS. OK.

Senator DURBIN. According to your label, you are selling a product which has been prohibited over the counter in the United

States for almost 20 years.

Dr. Wolfe, you wanted to say something earlier.

Dr. WOLFE. Just a couple things. In many of his misleading, if

not false statements, Mr. Davis either is ignorant, which I don’t

think he is, or he is being a little mischievous, if not malicious.

You cite an example of Primatene, an over-the-counter asthma

drug that does not contain caffeine. You put on the record that the

ones that are in combination with caffeine have been gone for 19

years. The FDA proposed 7 years ago to ban all over-the-counter

products with just ephedrine alone. That is in process. The last

time I looked at the Federal Register, it was supposed to be completed and finalized by the end of this year, and I checked yesterday with the FDA. That is still completely on target.

So, again, the point you have made, Senator, is there appears to

be a double standard based on the same kind of evidence. If anything, the evidence for this product working for asthma is far better, even though there are better products now instead of it, than

for these other mainly ridiculous uses. So the FDA is taking that

off the market with the legal authority it has for over-the-counter

drugs.

We believe that the legal authority, although weaker, for dietary

supplements says that if it is used as directed and causes an unreasonable risk of harm, it can come off the market. So despite all

of the disabling aspects of the dietary supplement law, FDA has

the authority, they know they have the authority, and they will use

the authority. I mean, it is almost pitiful to listen to Mr. Davis sort

of frantically trying to save his clients.

The studies he cites mainly were not designed to look at safety.

There is actually a newer study by Drs. Benowitz and Haller,

whose study was published in the New England Journal of Medicine a couple years ago. There is a newer one showing a big increase in blood pressure in people using these kinds of products.

So I think the evidence scientifically is completely in one direction. There has rarely been a drug taken off the market based on

a ‘‘scientific epidemiological study.’’ It is case reports and more case

reports, or as the pejorative description is, there are just anecdotes.

There are deaths in military people. There are deaths in others, in

Sean, and where you have no other explanation but the product,

and that is enough scientifically to take things off the market.

Senator DURBIN. Dr. Davis.

Dr. RONALD DAVIS. Senator, I would just like to make a couple

of comments in response to the points that have been made in this

discussion. First of all, Mr. Davis referred to a national TV proVerDate 11-MAY-2000 15:05 Apr 14, 2003 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 83482.TXT SAFFAIRS PsN: SAFFAIRS
35

gram that we were on recently. That was the ‘‘Weekend Today’’

show, and he did not mention a challenge that I posed to him, and

that is that his company join with the AMA to go to Congress to

ask Congress to amend the DSHEA law to put dietary supplements

under the same regulatory authority as over-the-counter and prescription medications. He declined that challenge on television and

his argument was that dietary supplements are ‘‘natural’’ products.

I think it is important for people to realize that the whole history

of pharmaceutical development includes many products that have

come from plants or botanicals. Digitalis, a potent heart medication, is a well-known example. Vinca alkaloids, which comprise

chemotherapeutic agents for treating cancer, these are derived

from botanicals, as well.

I also want to give you a specific example of where anecdotal reports were very informative and influential in public health policy

in this country just very recently. A new vaccine was developed and

was put into the marketplace for children, the rotavirus vaccine to

prevent serious diarrheal illnesses in children. Shortly after that

vaccine was introduced in the United States and began to be used

nationally, we had reports of intussusception, which is a serious intestinal condition where intestinal blockage can occur and even

death.

After anecdotal or individual reports of intussusception came in

for children who had recently received the rotavirus vaccine, the

CDC said, this is a red flag. We are concerned. We urge everybody

to stop using this vaccine, and in the meantime, we are going to

conduct, as quickly as possible, a large study to see whether this

association is real. They quickly contracted with HMOs across the

country, including very large ones like Kaiser, and collected information on, I believe, several hundred thousand kids who received

this vaccine. Maybe it was even a million or more. My own institution, the Henry Ford Health System, participated in this study. In

a matter of several months, they determined that these anecdotal

reports of intussusception were borne out by a large valid study.

Now, the point here is that this product was taken off the market, was kept off the market to protect people until valid science

could be done with an appropriate sample size, hundreds of thousands, at least. By comparison, the Boozer study which you brought

up had a sample size of 83 people taking these dietary supplements, these ephedra herbal products, 83. If you think for a

minute, what if 1 out of 500 people who used this product died because of the product? I am sure everyone would say that is an absolutely unacceptable risk, 1 out of 500 dying. Yet, if that was the

case, and we do not know whether it is or not, but if that was the

case, how could you detect that with a sample size of 83?

Senator DURBIN. Let me ask you, and I want to take this to a

point which I want to make sure is clear in this hearing. We have

talked about dietary supplements with ephedra and what the responsibility of the government should be. Even Mr. Davis on behalf

of the industry is conceding that we need to stiffen the requirements in terms of the production and marketing of this product because of the danger.

But where do we draw the line here? The big debate on DSHEA

in 1994, which flooded Capitol Hill with letters, was over whether

36

or not the Federal Government was going to require people to get

prescriptions for their daily vitamins. I would not support that. I

do not know that Members of Congress would. But where do we

draw that line, then?

When we talk about vitamins and minerals and ordinary herbs

that people may decide, if I want to take a garlic pill in the morning because I think it has some therapeutic value to me personally,

it has not been proven, I do not believe, that that has any danger

associated with it, I really should not have to get a prescription for

it. Where is the reasonable place to draw that line?

We do not want to treat everything like a prescription drug or

an over-the-counter drug, but we surely have a situation here

where dietary supplements with ephedra are now creating so much

havoc in terms of public health that the AMA and Canada and the

NCAA and others have stepped forward in saying, if the FDA will

not move, we will. Where do we draw that line?

Dr. RONALD DAVIS. Well, that is a good question. The quick answer that I would give is that there has to be a way to give some

kind of expedited approval to products that have clearly been

shown to be safe. The Food and Drug Administration has a list of

products called GRAS, Generally Recognized As Safe, which pertains to food additives. There ought to be a way to have a similar

category for dietary supplements which are known to be safe, even

when used in excess. That way, we would not hold up things that

clearly would not pose a serious risk to the population.

Dr. WOLFE. I think that for the vitamins and minerals, which I

think the ban of which or the rendering by prescription, a very misleading kind of campaign by the industry, caused all this outpouring and caused the Hatch-Harkin law to pass, we have lots of

information on safety and effectiveness and proper doses of vitamins and minerals, so I think those are easy ones. I think the

other ones really should be treated like drugs. They are drugs. If

they were not pharmacologically active, then their promotion would

be entirely a fraud. We know they are pharmacologically active.

They are drugs.

I think the DSHEA should be repealed, and there are Generally

Recognized As Safe food additives as well as over-the-counter

drugs. Vitamins and minerals would clearly fall into this category,

and I do not think it is as much a problem as the industry has

tried to inflame the public it is. I mean, this law is certainly one

of the major, if not the major step backward in the history of the

FDA, whose legal enhancement has been in the direction of more

safety, more efficacy, starting with the safety law in 1938, the efficacy law in 1962, the device law in 1976. This is a major step backwards. It needs to be either so significantly amended that you

won’t recognize it or entirely repealed.

Senator DURBIN. Mr. Jeffery.

Mr. JEFFERY. Yes. I can send a copy to the Subcommittee of the

Canadian Government’s proposed definition of natural health products. It has a functional component and included and excluded lists

of substances which may be of use to the Subcommittee.

But I would just like to comment on a reference that was made

to the naturalness of dietary supplements. I think it goes without

saying that food is natural. Our Canadian Food Inspection Agency

37

put ephedra and Kava on a list of 15 herbs that it refers to as toxic

and they are considered inappropriate to be used in foods. So I am

not sure that Mr. Davis can have any resort to the naturalness of

the products. There is no need to be caught up in that distinction.

Senator DURBIN. Mr. Beales, in terms of the FTC, has DSHEA

created some problems from your side? Has it created new challenges in terms of advertising of these products?

Mr. BEALES. Well, from our perspective, DSHEA didn’t change

anything because our approach to advertising has always been

based on, do you have a reasonable basis for the claims that you

are making, and so that approach was something that is very comfortable to the FTC and something that we have always pursued.

What it has done is, I think, some of what was intended, was to

increase the market for these products, and that has increased the

volume of claims that we see, certainly.

I think, by and large, the distinction that DSHEA makes between health claims and structure function claims is one that mostly works. There are some supplements like ephedra-containing supplements that raise special issues. But most of the things that are

supplements don’t have the kinds of adverse events associated with

them that ephedra does.

Senator DURBIN. Mr. Uryasz, if I might ask you, you have had

a ban, an NCAA ban on these products by athletes and yet you

have seen an increased usage by most surveys here. What does it

tell you? What do we need to do to get the message out to people

who are obviously conscious of their bodies and their health but are

making the wrong decision, and more seem to be making it despite

good warnings?

Mr. URYASZ. In the field of drug and supplement use prevention

in sport, we have to look at the supply side and the demand side.

An organization like the NCAA has done a tremendous job, I believe, on the demand side of the problem. Nothing has been done

on the supply side. These athletes have easy, easy access to these

substances. The advertising is targeted directly at both our male

and female student athletes.

You mentioned earlier, where do you draw the line? I would suggest you do not draw the line at 17 or 18 years old. That does not

provide any relief for the 360,000 student athletes that I represent

who, for most of them, are 18 to 22 years old that right now can

legally buy ephedrine.

Senator DURBIN. I might add, Ann Marie has brought this up a

couple of times, but this is the website from these folks, NVE, who

couldn’t make it today, for their Yellow Jackets, and if you read

this, it is kind of a challenge to young people. Warning, Yellow

Jackets are not recommended for novices with limited experience

in the use of herbal energizers and fat burners. It was specially,

[misspelled] formulated for seasoned consumers of such products. It

does not strike me that that is an age warning. It is kind of a challenge. Are you a big boy? Can you do this? Or are you a novice?

Mr. URYASZ. Let me just say, the magazine that I held up, one

of the supplements we get a number of questions on, Hydroxycut,

which is another one that stacks the ephedrine and caffeine, this

is a six-page advertisement for this supplement, but there is no

mention of any of the warnings that are on the label.

38

Mr. LANNY DAVIS. Senator, may I surprise you by agreeing with

most of what I have heard?

Senator DURBIN. Sure.

Mr. LANNY DAVIS. I do not want everybody to be upset with me,

some may not want me to agree with them on this, but I certainly

agree with the gentleman from the NCAA that it is not just under18-year-olds. We do not think this should be marketed for athletes

or athletic enhancement or any of the things that these kids are

using, 18 or older or not, for popping pills. I said earlier, we only

think you should use it for weight control under the supervision of

a doctor and that there are medical conditions that absolutely

should not allow you to use them, as we say on our label.

But let me at least address this one final point to you, Senator.

We are only asking for a rifle shot focus in your inquiry, as well

as a broad brush. We are only asking you to look at ephedrinebased products. I agree with the gentleman from Canada and Dr.

Beales. This is a unique and possibly separate issue when you are

talking about ephedra. We do not disagree with you on that. That

is why we are asking for an FDA regulation aimed just at ephedra,

because it is a different product. That is why we are asking for a

national call reporting system, mandated across the country, just

for ephedra-based products and no other products.

We are not insensitive to the Riggins tragedies and to the tragedies of other young people and athletes that have misused this

product for purposes we do not support, and if there is any way to

do a rifle shot rather than throwing the whole barrel out and to

at least give some credit for whatever mistakes we have made,

which I concede to you, Senator, we are not perfect, that we wanted—tried to be constructive. This is not just public relations. This

is sincere.

Senator DURBIN. Mr. Davis, I am going to quibble or quarrel

with your use of the word ‘‘misused the product.’’ Time and again,

we find people who have used the product as recommended are killing themselves with it, and you are finding that there is virtually

no policing in terms of the sale of these products to children, who

could not be expected to read all of this malarkey behind the label

before they decide to pop a Yellow Jacket.

I want to make sure I understand you. Are you saying, then, that

you would support changes in the law or new Federal regulation

which would require medical supervision before people take

Metabolife 356, to determine whether or not it is medically appropriate for them to use this product?

Mr. LANNY DAVIS. I am not in a position to say a new Federal

law, but I can tell you that I have just said exactly that this product should not be taken for weight control without a doctor’s supervision. We agree with Dr. Davis on that. I am not in a position to

say we would support a specific law until I see it. But we would

certainly work with you on the regulation, on the reporting system,

and on that kind of child I.D. requirement, so that we have driver’s

license required before you buy this product.

There is a lot we agree on. There may be some who disagree on

it, Senator, but at least we are here and we are trying to find common areas that we do agree with you on.

Senator DURBIN. Thank you very much.

39

1The prepared statement of Dr. Crawford appears in the Appendix on page 116.

I am going to close at this point. Dr. Wolfe, did you want to——

Dr. WOLFE. Just quickly. The only way that you can guarantee

that a product is used with doctor’s supervision is to switch it to

prescription status. Does Mr. Davis agree with that?

Senator DURBIN. I was going to raise the same point, but once

you have a doctor involved in it, it sounds like a prescription.

Thank you very much. We are going to recess this hearing until

2:30, when Dr. Crawford will be here. To this panel, thank you for

your contribution.

[Lunch recess.]

AFTERNOON SESSION

[2:30 p.m.]

Senator DURBIN. Good afternoon. The continuation of this morning’s hearing before the Senate Subcommittee on Oversight of Government Management, Restructuring, and the District of Columbia,

focusing on ‘‘Ephedra: Who is Protecting American Consumers,’’

will resume.

I am happy to welcome to this gathering Dr. Crawford from the

Food and Drug Administration and hope that you will be able to

give us your agency’s perspective on that, and I would like to begin

with the customary swearing in of witnesses.

Do you solemnly swear the testimony you are about to give will

be the truth, the whole truth, and nothing but the truth, so help

you, God?

Dr. CRAWFORD. I do.

Senator DURBIN. Thank you. Let the record reflect that the witness has answered in the affirmative. Dr. Crawford, please feel free

to make your statement.

TESTIMONY OF LESTER M. CRAWFORD, D.V.M., PH.D.,1 ACTING

COMMISSIONER, FOOD AND DRUG ADMINISTRATION, U.S.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Dr. CRAWFORD. Thank you, Mr. Chairman. I appreciate this opportunity to speak to the Subcommittee about the dietary supplement ephedra. Before I go into detail about this particular dietary

supplement, let me briefly describe the foundation for FDA’s regulatory and enforcement actions on all dietary supplements.

In 1994, the Dietary Supplement and Health Education Act created a unique regulatory framework for dietary supplements in the

United States. This framework is primarily a post-market program,

as is the case for foods in general. Should safety problems arise

after marketing, the adulteration provisions of the statute come

into play.

Under DSHEA, a dietary supplement is adulterated if, among

other things, it or any of its ingredients presents a significant or

unreasonable risk of illness or injury when used as directed on the

label, or under normal conditions of use if there are no directions.

FDA bears the burden of proof to show that a product or ingredient

presents such a risk. In addition, the Secretary of Health and

Human Services has the authority to declare that a dietary suppleVerDate 11-MAY-2000 15:05 Apr 14, 2003 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 83482.TXT SAFFAIRS PsN: SAFFAIRS
40

ment or dietary ingredient poses an imminent hazard to public

health or safety.

DSHEA specifically grants FDA the authority to develop good

manufacturing practices. There is broad public support for dietary

supplements good manufacturing practices. Such regulations are

critical to assuring quality, purity, and consistency in dietary supplement products. FDA has made the publication of a GMP proposed rule a high priority and we are in the final stages of that

process. I am pleased to announce that last Friday, the proposed

GMP rule was forwarded to OMB for a 90-day review.

As my testimony makes clear, we are looking forward to receiving the comprehensive review of the existing science on ephedrine

alkaloids, particularly those found in dietary supplements. This review is being conducted by the RAND Corporation, which has targeted the end of the year to complete this effort. The results of the

RAND review will help FDA’s scientists develop future regulatory

actions on dietary supplements containing ephedrine alkaloids.

While we await the completion of the RAND review, this does not

in any way preclude FDA in taking additional enforcement actions.

Last June, the administration announced that FDA is aggressively pursuing the illegal marketing of non-herbal synthetic

ephedrine alkaloid products. Warning letters were sent to firms

that were unlawfully selling non-herbal ephedrine alkaloid-containing products over the Internet. These products violate the law

because they are not legally dietary supplements. They are unapproved drugs.

FDA has also warned other companies for illegally promoting its

illegal ephedra product as an alternative to street drugs. Our latest

action involved Yellow Jackets.

Mr. Chairman, thank you for calling to Secretary Thompson’s attention the death of the 16-year-old boy who ingested the product

Yellow Jackets in your letter of October 2, 2002. I referred the matter to our enforcement personnel, who identified a distributor in

the Netherlands who is making claims that are illegal under U.S.

law. The website indicates that the product is intended to be used

as an alternative to illicit street drugs. It is, therefore, being illicitly marketed.

I know this comes as little comfort to the boy’s family, who have

suffered such a tragic loss, but yesterday, FDA issued a cyber letter

to the foreign distributor and we alerted consumers that these

products present health risk. We are working closely with law enforcement officials in the Netherlands and the U.S. Customs Service to block entry of Yellow Jackets into this country by placing this

product on import alert.

In addition to our prior efforts on synthetic ephedrine alkaloid

enforcement, FDA continues to assess additional products in the

marketplace, and if circumstances warrant it, we will take further

enforcement against products that contain synthetic ephedrine

alkaloids.

Secretary Thompson has expressed concern about the safety of

ephedra, and I share that view. The Secretary has requested that

FDA evaluate as quickly as possible mandatory warning labels that

can be justified by sound science. These labels would properly alert

the public regarding the potential risk associated with consuming

41

dietary supplements containing ephedrine alkaloids. We will incorporate warning labels into our regulatory enforcement efforts at

the agency.

I appreciate this opportunity to testify and I also would point out

that today, we have announced the finalization of proposed rulemaking on dietary supplement good manufacturing practices. Secretary Thompson has issued a statement saying that, ‘‘We continue

to take steps available to us to protect the public and implement

our strong commitment to protecting people in this country from

the dangers of unlawfully marketed drug products.’’

And then, finally, we are continuing our efforts to prevent marketers from advertising ephedra products as alternatives to street

drugs and we have taken some actions so far, and including one

today against a company in New Jersey.

I am pleased to be here. Thank you, sir, and I am happy to answer your questions.

Senator DURBIN. Thank you, Dr. Crawford.

Let us go right into your last statement here, because I was concerned. I wrote a letter to the Secretary on October 2 about Yellow

Jackets after I heard about Sean Riggins, whose photo is here, who

died near my hometown after taking this product, and I made a

point in that letter—I am sure you have seen it—of noting that this

product, this Yellow Jacket here, is a product made by NVE Pharmaceuticals of New Jersey. Now, the action which you have taken

apparently relates to a firm in the Netherlands, but then you just

closed by saying, we took action against a New Jersey firm. So

have you taken action against NVE Pharmaceuticals?

Dr. CRAWFORD. Yes. We are in their plant as we speak today and

taking action to inspect the plant for a variety of concerns, their

manufacturing and also their marketing. We have been denied

entry into the plant and we are taking action to get access to the

plant legally through the courts, and that should be consummated

before the day is over.

Your letter alerted us to this situation, as I indicated earlier, and

we did trace the source, the original source, to the Netherlands.

But then we were able to determine that the product was actually

manufactured in the United States, in New Jersey, in the plant

that I mentioned. Therefore, that led us to investigate them.

Senator DURBIN. Well, let me ask you, what is likely to occur if

the court follows the lead of the FDA in reference to NVE Pharmaceuticals? What actions, if you could be more explicit, will be taken

against this company?

Dr. CRAWFORD. We don’t know what we will find when we gain

access to the plant. That will be done immediately. What we are

seeking is a warrant, as you would know, to allow us entry, even

though they have denied that to us. Once we get into the plant, we

will examine records and anything else we can find and then take

the appropriate steps.

Senator DURBIN. So are you suggesting or testifying that you are

going to stop all Yellow Jackets, or just those that are marketed

as alternatives to street drugs?

Dr. CRAWFORD. We are certainly going to take action as strongly

as we can against those that are marketed as street drugs. We

have evaluated the product and the composition of it seems to me

42

to be inconsistent with the use for which it is intended, so it is my

belief that the investigation will probably lead us to take stronger

action—strong action against all Yellow Jackets and all Yellow

Jacket manufacturers and we will try to interdict them from commerce.

This particular product, as you know, has a warning on it about

consumption by persons under 18 years of age. That is not a legal

warning. It is actually a warning that is a sales policy and, therefore, is not enforceable. And the composition of the products all

seem to be cardio-stimulatory and I am very doubtful as to whether

or not there is a legitimate use for the product.

Senator DURBIN. Let me ask you this. Are you going to stop with

Yellow Jackets? Are there other ephedrine-based products that you

are going to——

Dr. CRAWFORD. There is another product called——

Senator DURBIN Supplements containing ephedra that you are

going to pursue?

Dr. CRAWFORD. There is another product called Black Beauty,

and——

Senator DURBIN. I am familiar with it.

Dr. CRAWFORD. In the past, apparently, these seem to be interchangeable. The only difference is a stippling coloration as opposed

to a yellow-type coloration. So I think it is about the same thing

and we intend to take action against those, also.

Senator DURBIN. And is that basically, again, because there is a

suggestion that it is an alternative to a street drug? Is that the

basis for your action?

Dr. CRAWFORD. It is easier for us to go after them if they are an

alternative to a street drug because the claims that they make

clearly indicate that you can use this rather than some street drug,

and also, they indicate that they use the same terminology and language as you would use for street drugs, like rushes and highs and

so forth.

However, both these products seem to be so cardio-stimulatory

and also have so much ephedrine in them that I would suspect that

we are probably going to conclude that they can’t be safely marketed.

Senator DURBIN. Both of these products, I called to the attention

of Secretary Thompson in my letter of October 2, and I am glad you

are taking action on them, but this begs the question, do Members

of the Senate and Congress now have to write to the Secretary with

individual names of individual products, the products that are associated with victims, in order to get action by the FDA against these

companies?

Dr. CRAWFORD. We have been maintaining surveillance of these

kind of products for some time. As a matter of fact, we established

our street drug policy about a year ago. So our enforcement actions

have been continuing apace. I don’t want to minimize the letter

that you sent to us, but it is our job to find out about these kind

of things and we are redoubling our efforts in that regard.

Senator DURBIN. Let me ask you some more general questions

that might get us back to this same issue. Do you believe that nutrition supplements containing ephedra are safe and effective?

43

Dr. CRAWFORD. Well, I think there are a couple of general statements I would make about that and then get as specific as you

would like for me to be. It seems to me that as I review all of the

indications and claims for use and also the dosages and even the

dosage forms that they are marketed for inappropriate things.

Weight loss and energy are not the kind of things that are attributed to these kinds of drugs.

As you know, they have been used as drugs for many years as

an alternative for ephedrine, as something that is fairly close to

amphetamine. The amphetamines were disallowed as diet intervention products some years ago and the whole class has. The ephedrine and its various congeners are used for legitimate medical purposes, sometimes under the supervision of a physician, sometimes

over the counter. But they are not used legitimately for weight loss

and energy and those kind of things, for the most part. They do

have some usages in medicine, but I can’t quite understand why

they are marketed for that.

So I would say it is a drug that, were it a prescription drug or

were it under the supervision of a physician, would have legitimate

uses. I am having trouble with these particular uses.

Senator DURBIN. This really goes to the heart of our concern, and

to the heart of the problem. Under DSHEA, do you have the authority to remove a nutrition supplement with ephedra from the

market if you believe it is being marketed for use that can’t be

proven, for example, weight loss or energy builder?

Dr. CRAWFORD. The Dietary Supplement Health Education Act,

as you know, places the burden of proof upon the FDA. Many other

national and international entities that have interdicted the use of

these products for this particular purpose have not had to establish

the proof. We have had to do that.

I was on the Food Advisory Committee of the FDA in the middle1990’s when this first came up and although I have not been at the

agency but about 10 months, I believe the agency has been working

steadfastly to develop that case.

The answer to your question is that it has not really been tested

to this point. I think the burden of proof has led us down a long

and torturous path and is something that we were unaccustomed

to at FDA.

Senator DURBIN. And the point that was made this morning,

when it comes to prescription drugs and over-the-counter drugs,

the burden of proof is on the manufacturer as to the safety and efficacy. Long clinical trials, scientific evidence presented to the FDA

leading to market approval, then the drug comes to market and it

is closely monitored by adverse event reports to see if there are any

problems with it, and the FDA is continuing to watch and see if

it is safe, and if it is effective.

When it comes to these drugs, naturally occurring drugs, if you

want, the dietary supplements, exactly the opposite is true. These

companies, unless you can bring them in under an alternative

street drug provision in the law—just take Metabolife, for example,

which by its name would not signal that you could bring it in as

an alternative street drug, these companies can continue to market

unless and until, as I understand it, the FDA can prove that they

are not safe, and as you said, that is a long and winding road, of

44

proving causality between adverse event reports and the danger

that might be associated with the drug. Is that a fair summation?

Dr. CRAWFORD. That is correct. Yes.

Senator DURBIN. Let me draw you, then, to the next question, on

safety, because this really, as far as I am concerned, gets to the

heart of the issue. It has been a decision by the Food and Drug Administration for 19 or 20 years now that the combination of caffeine and ephedrine or caffeine and ephedra will be prohibited in

over-the-counter drugs. Do you know why that decision was

reached or the basis for that decision?

Dr. CRAWFORD. As I understand it, you are talking about the

drug side, on the over-the-counter products?

Senator DURBIN. Yes, that is right.

Dr. CRAWFORD. As I understand it, the reason it was reached is

sort of two-fold. The safety of the two, since they are both stimulatory to the heart and also have central nervous system stimulation, is deemed to be not particularly indicated. In the era of specific pharmacology, what the agency has tried to do following the

passage of the Kefauver-Harris amendments in the early 1960’s is

to insist upon a specific drug for a specific purpose and get away

from what we call galenical preparations, where you had multiple

drugs competing with each other. There was not seen to be any

pharmacological reason to have these two together. If you wanted

more stimulation, then perhaps you could alter the dose of one or

the other. And also, caffeine sort of operates with flash-like suddenness and then it is gone, so it is hard to have the two in combination.

Then the second reason was is that there was concern about the

safety, for sure.

Senator DURBIN. Which draws me, then, to this obvious conclusion. The FDA has banned ephedrine-caffeine over-the-counter

drug combinations since 1983 or 1984. The FDA has banned PPA,

a metabolite of ephedrine, over-the-counter drugs since 2001. The

FDA is moving forward with banning ephedrine over-the-counter

drugs, which was proposed in 1995. But when you put that combination in what is called a nutritional supplement or a diet supplement, the same combination, ephedra and caffeine, they are

legal, though the 1997 proposed rule might have banned them. An

herbal ephedrine is legal, as well.

Now, when it comes to the safety of people like Sean Riggins and

the safety of the American public, how is it served by the Food and

Drug Administration saying, when it comes to drugs, don’t get near

this combination. It is dangerous. But when it comes to nutrition

supplements, like Metabolife, we have no role, no voice.

Dr. CRAWFORD. I have two responses to that. When I was on this

Food Advisory Committee, I believe as early as 1994 but probably

no later than 1995, we were presented the assignment to look into

ephedra in combination and also separately because the agency

was concerned about it. I think they were concerned because of the

obvious fact that these products are not just herbals, if you will.

They have pharmacologically active substances.

In fact, at about that time when the law was passed and we

began marketing some of these, I think there was the feeling that

maybe little harm would be done with most of the herbal remedies

45

that were on the market because they might not be particularly active, but actually, the opposite has turned out to be the case. Even

products like St. John’s wort have pharmacological activity that

was, for the most part, unexpected.

With ephedra in combination with caffeine, it certainly has the

same kinds of activity at certain levels as the former drug combination, so there is great concern about it, and it is an incongruity and

I grant you that.

Senator DURBIN. Well, let us go to the heart of it. If, in fact, we

have already established pharmacologically that this combination

can be dangerous, and if, in fact, we have evidence of the danger

in terms of the adverse event reports to Metabolife, the deaths of

young people like Sean Riggins, and actions that have been taken

by others, is it not true that the Secretary has the power to suspend the sales of this product in the United States today, even

under existing law?

Dr. CRAWFORD. I think the route that was taken was to establish

the causality, in other words, to do the proof. If you look back into

the records on the restriction of the use of the drug, ephedra with

caffeine, essentially, what happened under that law, the Federal

Food, Drug, and Cosmetic Act, was that FDA asked the sponsors,

that is, the manufacturers of the product, to give them safety and

effectiveness data, and when that was not forthcoming or it was

not forthcoming in a form that was useful, the agency simply said,

we are not satisfied and, therefore, the product has to come off the

market.

With these particular products, the determination was made that

we have to, in effect, become the sponsor of the product. That is,

we have to go through the safety tests and the evaluation, and that

was begun, as I mentioned, as early as 1995 and reached a crescendo in 1997. It still hasn’t been done.

Your point about what the Secretary’s options are, is he can,

based on the evidence, declare these products basically unsafe for

use as indicated, and then, in effect, they are converted to a drug.

He also has the option under the law, as I understand it, to declare

an imminent hazard, and then that begs the question of whether

or not they can be marketed while the imminent hazard procedure

is proceeding or whether you leave them on the market until it is

concluded. Imminent hazard is a long, torturous process, also, and

it has not been attempted since the middle-1980’s, when it failed

for the fourth time, with another drug category—prior to the law.

Senator DURBIN. My first letter to Secretary Thompson after the

initial hearing was August 6, and I called on him to do exactly

that, to make an immediate determination that these dietary supplements containing ephedra posed a hazard to the health of American consumers, and I went on to say, it is within your authority

to take this step and suspend the sales of the supplements until

their safety is clearly and scientifically established.

You have, I think, just said in your testimony that the Secretary

has the power to do that, and my question to you is, were you

asked by the Secretary any time after this letter was sent to him

to sit down and give him advice as to whether he should suspend

the sales of this product?

46

Dr. CRAWFORD. Yes. I was asked to tell him what the status was,

and so I reported on the RAND report. He was eager for this to

be concluded. We also about that time received a CD–ROM from

one of the manufacturers of ephedra which contained some adverse

event reports, large numbers of them. So my recommendation to

the Secretary was, let us try to build this case, finish building this

case as rapidly as possible. The RAND study, as I mentioned in my

testimony, is scheduled to be completed early next year. And also

to wrap up all the details of these previous studies and make a

hard and fast recommendation to him.

In typical Secretary Thompson fashion, he wants that done sooner than later and we are on target to try to get it done early next

year.

Senator DURBIN. Dr. Crawford, I don’t want to be harsh with the

Secretary or yourself in terms of this issue, but I do have to point

out something. When I sent this letter on August 6 and asked for

the suspension of sales of this product, Sean Riggins was still alive.

Nothing has happened. I shouldn’t say nothing has happened. The

sales have not been suspended. Obviously, there has been a lot of

discussion within your agency. And now, I believe you are saying

that by the end of November, some decision will be made, is that

correct?

Dr. CRAWFORD. A recommendation will be made by me to the

Secretary.

Senator DURBIN. I would say to you that I can’t understand why

we have suspended or held up this decision. It would seem to me

that with the accumulated evidence of deaths and serious illnesses

resulting from this product, that the wise, prudent, good faith effort would require suspension first, before we go into a long and

elaborate study. I mean, it isn’t as if we are talking about something that has a salutary effect on people. This is a killer for people

who are unsuspecting, particularly children. Why wouldn’t we take

that off the market even sooner? Why wasn’t it done sooner?

Dr. CRAWFORD. You mean like back in the 1990’s?

Senator DURBIN. Well, I can certainly go that far back, but let

us start with August 6. Why isn’t it——

Dr. CRAWFORD. Well, the——

Senator DURBIN. Here we have the accumulated evidence. Canada, which I think we acknowledge to be a country not dissimilar

to the United States in many ways, in their standards of public

health, they made the decision calling for a voluntary recall of this

product. In January of this year, the American Medical Association

wrote to the Secretary. We know that over 20 States have established regulations because of their fears.

We now have evidence that 30 or more members of the U.S. military have died from the use of this product and it has been suspended on military posts across the world. We know the action has

been taken by sports organizations to keep it out of the hands of

athletes because of the fear. You had the adverse event reports presented to you, I believe in August or September of this year from

Metabolife, which gave ample evidence that even though they stated otherwise in 1999 to the FDA, they were receiving serious adverse event reports for 5 years.

47

All of this seems to be building a body of evidence, which, if I

were in your position or Secretary Thompson’s, I would say the

clear and prudent thing to do to protect Americans, take this product off the shelf. We can debate later on the proper dosage and

whether we need a doctor involved and sales to minors. But at this

point in time, this is a killer and our obligation is to the American

public. What am I missing in my logic here?

Dr. CRAWFORD. Well, I don’t think you are missing anything. I

am not disagreeing with you, either. The situation is that the burden of proof is on us and we have to make the case, and once we

take the action, we have to be able to sustain it.

As I mentioned, the agency has gone down the path of following

DSHEA and trying to build a case to take either this unsafe product action, which would lead to declaring it a drug, in effect, or the

imminent hazard action, or, based on what the evidence reveals—

we have to be guided by the science and——

Senator DURBIN. May I address the science for a moment?

Dr. CRAWFORD. Yes, sure.

Senator DURBIN. Are you familiar with Dr. Janet Woodcock of

the Food and Drug Administration?

Dr. CRAWFORD. Yes.

Senator DURBIN. Have you read her memo to Joseph Levitt of

March 28, 2000, relating to these products?

Dr. CRAWFORD. Yes.

Senator DURBIN. When we are talking about the science and the

proof, Dr. Woodcock wrote to Mr. Levitt, the Director of the Center

for Food Safety and Nutrition, on these dietary supplements containing ephedrine alkaloid, and I will just read a sentence or two

here. ‘‘At least 108 reports that this office analyzed provide very

strong evidence in support of a causal relationship between these

supplements and the adverse events, particularly in light of the

known pharmacodynamic effects of ephedrine alkaloids.’’

So within the Food and Drug Administration, over a year and a

half ago, there was evidence from one of your doctors on staff that

we have a problem here with this product. I wrote on August 6 and

what you have said to me is, we need more study. We need more

evidence.

Dr. CRAWFORD. No, we need to complete this study that they

commissioned about that time. Now, what happened, Dr. Woodcock

is obviously very highly respected. As a matter of fact, she is Director of the Center for Drug Evaluation and Research. What was

done with her letter was that HHS in 2000 convened an expert

panel of scientists to review her finding. Her finding essentially

was that there was causality between ephedra use and serious disease events.

The conclusions of that panel was, in effect, an overturning of Dr.

Woodcock’s conclusion, and they called for more evidence-based research and analysis and that was what was done. Her recommendation was made in good faith. That was her professional

opinion. When it was refereed by this expert panel, they concluded

otherwise.

Senator DURBIN. So you are saying that there was a panel that

came to a different conclusion about the linkage——

Dr. CRAWFORD. Yes.

48

Senator DURBIN [continuing]. And this panel, does it have a

name or is it internal to the FDA——

Dr. CRAWFORD. It was a group of people that were appointed by

the Department of Health and Human Services and they were internal. They were from NIH, the FDA, and other agencies within

HHS.

Senator DURBIN. Well, are you in doubt as you sit here today

about the danger of this product?

Dr. CRAWFORD. I am not in doubt about the fact that it can be

dangerous. I am also not in doubt about concerns about the use to

which it is being put in this form, as I mentioned earlier, for

weight loss and energy and these kind of things. Until I make a

recommendation to the Secretary, though, I can’t make any definitive comment.

Senator DURBIN. Right. Understood. Let me ask you about this

RAND study. Tell me a little bit about it. Who is involved in the

RAND study and how many people who are reviewers in the RAND

study have connections to the industries that they are reviewing?

Dr. CRAWFORD. The RAND Corporation is in charge of the RAND

study and they are, in effect, contractors to the FDA, but they must

meet the same ethical standards as we ourselves do, our expert

panels do. So we have vetted the people involved in the study for

any conflicts of interest and I am informed that they are within the

reasonable bounds that we have to operate under.

What they are doing is an analysis of all the published work on

ephedrine and have been at it for some time and are expected, as

I mentioned, to complete it very soon now.

Senator DURBIN. And you feel that this study by RAND is going

to be objective and scientifically credible?

Dr. CRAWFORD. Yes, I do.

Senator DURBIN. All right. Let me ask you, as well, if you could

tell me, you probably heard the testimony, or perhaps someone told

you about the testimony today from Lanny Davis, an attorney representing Metabolife. He was calling for some dramatic changes in

the way this product is going to be sold in America. He didn’t want

a law——

Dr. CRAWFORD. I am sorry, Senator——

Senator DURBIN. This is Metabolife.

Dr. CRAWFORD. OK.

Senator DURBIN. Metabolife. He didn’t want, if I state it correctly, if I remember it correctly, he didn’t take the bait when I

said, do you want to change the law? He thought that might be a

little excessive. But he did suggest that there be changes by regulation, FDA regulation, to establish a variety of things that he called

for—limitations on sales to minors, good manufacturing practices

that are going to be followed, medical supervision and the like, perhaps even some information developed on proper dosages, I suppose.

Do you have the authority to do that? Could you follow his suggestion and establish those standards for a specific product, namely

dietary supplements containing ephedra?

Dr. CRAWFORD. I would have to evaluate his recommendations

and perhaps study them a wee bit, but I can respond to these items

that you mention.

49

On the GMPs, the 1994 law did call for good manufacturing practices that would be effected through regulation and it also stipulated that they had to be based on food GMPs, that these products

would be treated as foods rather than as drugs, and that regulation, for a variety of reasons, was never published. We have completed that, and as I mentioned earlier, it is at the Office of Management and Budget for their customary 90-day review. We expect

to hear from them, therefore, by the end of the year. As soon as

we get the report back from OMB, we will publish it.

Ultimately, when it becomes final, this will provide guidance to

the industry on how they are to manufacture these products and

that will be an improvement. More importantly, we can use adherence to the GMPs, or lack of adherence, as a means of enforcing

some of these things. As a matter of fact, it is the main enforcement tool that is present in DSHEA, so we need it out.

Senator DURBIN. And am I correct in saying that the law that

was enacted in 1994 and this effort to establish GMP for these

products, we are now some 8 years into this conversation?

Dr. CRAWFORD. Yes.

Senator DURBIN. And how soon do you think we may have a

standard for products that are being sold every day across America?

Dr. CRAWFORD. Well, what I am committed to do is to get it out

as soon as possible. We have to have this review, as I mentioned,

and then we will be ready to publish it unless something is found

to be defective about it. We have already had it vetted by the Office

of General Counsel and the Office of Chief Counsel and I believe

that it is an intact and usable document. So I expect the best.

When we publish it, it will be published as a proposed rule and

we are going to take comments on it. About the earliest any of

these get put into a final rule is 6 to 9 months and it can take as

long as 4 years.

Senator DURBIN. Four years from now?

Dr. CRAWFORD. Yes. That is in the extreme, and——

Senator DURBIN. It seems like we are in an extreme

situation——

Dr. CRAWFORD. Yes.

Senator DURBIN [continuing]. If we are 8 years into it and still

may have 4 years to go.

Dr. CRAWFORD. I agree. I don’t disagree with that at all. They

need to be out because they are guidance to the legitimate industry

as well as a means of taking enforcement actions against the industry that is not operating correctly.

Senator DURBIN. Dr. Crawford, are we meeting our obligation to

the American public when we can’t establish a standard for good

manufacturing processes in 8 years, maybe 12?

Dr. CRAWFORD. I can’t—please accept my situation here. I just

came in February and this was proceeding at that point.

Senator DURBIN. Welcome to the Federal Government.

Dr. CRAWFORD. Thank you, sir. [Laughter.]

It seems a little longer than February. In fact, you and I have

met together at least twice before, not on this subject, but on other

subjects. I think there are good and sufficient reasons they weren’t

able to get this effectuated, but I do agree with you that it is the

50

important first step in terms of implementing the Dietary Supplement and Health Education Act. It needs to be done.

Senator DURBIN. What about the other things that Mr. Davis

suggested, dosage, limitations of sales to minors, medical

supervision——

Dr. CRAWFORD. He is talking about proper dosages, and one of

the things we are concerned about with some of these products is

since they are natural herbal products, what the potency of them

actually is, whether or not they are 25 milligrams per vial or

whether they are 65 or whatever. FDA has done some analysis of

this in the past, but we are now doing—we have initiated a more

comprehensive view of that to see if some of them are super-potent,

which would be banned, or if they are sub-potent, which would be

fraudulent. So we are going through that now. I assume that is

what he means by the establishment of proper dosages.

Under DSHEA, a firm manufacturing a dietary supplement may,

without really even notifying the government, change the dosage,

so the hold-up in them adopting a dosage that we would recommend should not be complicated. It should be easily done. If he

is asking that we think about proper dosages, then that is something we can do, and as a matter of fact, when we proposed the

regulation about 5 years ago, we did have, in fact, in that some recommended levels. That regulation was challenged and never did

publish. We are still hanging on to part of it and hope to be able

to effectuate it.

But there was a lot of commentary about the dosages. We held

a public meeting on the subject and we got 14,000 comments and

most of them were unfavorable. However, we are committed to ensuring that the proper dosage is on the label and that is one of the

reasons we are doing this national analysis that we have undertaken.

Senator DURBIN. I think the question was raised by Dr. Davis of

the AMA earlier whether there is a safe dosage. I mean, in over

90 percent of the adverse event reports that we reviewed, people

said they took exactly what they were told to take and had a bad

reaction to it. I think that was the same question that was raised

in Canada, whether there was any way to deal with this in an honest fashion and present this product in a way that wouldn’t be

harmful.

Dr. CRAWFORD. Yes. I think, certainly with the purified, specific

pharmacological product, the ephedrine itself, when used for medical purposes, it is possible to establish the optimal dose, and also

the toxic dose has also been established.

With products that may vary in potency like the herbals, it will

be more difficult, and I would say—so I don’t know the answer to

that. I would say this, though, that the worst thing you could say

about a compound is that there is no safe level because that basically means it can’t be marketed.

As I understand from talking to my Canadian counterparts, they

operate under a law that is different from DSHEA, and so essentially they said to the industry that we are not comfortable that

you have established that there is a safe dose and, therefore, the

product may not be marketed.

51

Senator DURBIN. Let me see—I am going to draw this to a conclusion. I thank you for your cooperation. Let me make sure I understand as we leave what we have learned from your testimony.

The first is that you have taken some action against a Netherlands manufacturer that is connected with Yellow Jackets and a

product called Ecstasy, if I am not mistaken, and some action was

taken about their sales in the United States to limit or prohibit

sales of their products?

Dr. CRAWFORD. Yes. We have blocked their sales in the United

States.

Senator DURBIN. And as far as this particular product, which

was the killer for Sean Riggins, you have said that you went—this

is Yellow Jackets from——

Dr. CRAWFORD. From NVE.

Senator DURBIN [continuing]. From NVE Pharmaceutical——

Dr. CRAWFORD. Yes.

Senator DURBIN [continuing]. That your agency went to their

place of manufacture today in New Jersey, and because of their

lack of cooperation you are going to court for authority to get inside

to look at their manufacturing practices as well as the information

that they have compiled to determine whether action should be

taken against them——

Dr. CRAWFORD. Yes.

Senator DURBIN [continuing]. To limit or suspend sales, not only

for this product, but also for the product Black Beauty, which they

also manufacture——

Dr. CRAWFORD. We will be evaluating Black Beauty, also.

Senator DURBIN. And also, if I am not mistaken, you said that

you are near some important threshold when it comes to establishing good manufacturing practices for these DSHEA products,

for these nutritional supplements——

Dr. CRAWFORD. Yes, nearer than we have ever been.

Senator DURBIN. Nearer than you have ever been, maybe as

many as 4 years away from completion——

Dr. CRAWFORD. That is——

Senator DURBIN. That is the worst case scenario, but——

Dr. CRAWFORD. That is the worst case——

Senator DURBIN [continuing]. This has been one of the worst

cases so far, so it could certainly end up that way. And I also understand that in response to letters that I have sent and other activity within your agency, that by the end of November, you will

be making your recommendation to Secretary Thompson as to what

action should be taken in general in terms of limiting the sale of

nutritional supplements containing ephedra, is that correct?

Dr. CRAWFORD. That is correct.

Senator DURBIN. Is there anything that you have left out of here

that you want to add into this record so we know what action is

being taken by the FDA to protect American consumers?

Dr. CRAWFORD. We are doing this potency study, evaluating what

the levels are, and we are particularly concerned about the possibility of super-potency. We are continuing our surveillance of a variety of different firms and products that are in the marketplace,

not just ephedra but others that are under DSHEA. So I would say

we have stepped up our efforts overall over the last few months

52

and we will have more announcements to make in that regard.

There are some investigations, as you know, including some criminal investigations that I cannot comment on——

Senator DURBIN. And I haven’t asked you about them.

Dr. CRAWFORD. Thank you.

Senator DURBIN. I purposely avoided those because I know that

that would complicate the situation, which I don’t want to do. We

thank you for your testimony.

Dr. CRAWFORD. Thank you.

Senator DURBIN. And let me say that your testimony, in addition

to that earlier this morning, makes it clear to me that DSHEA is

not protecting the American people. We have products that are

being sold in this country today that people believe are safe and

they are not. We have products that are being sold under false pretenses, that they will achieve some medical result, and they cannot.

As a consequence, many people are being deceived in terms of buying these products and some people are dying as a result of these

products.

The fact that it takes so long for our Federal Government under

this law to even protect the American people, particularly our children, is proof positive this law needs to be changed. I do not favor

requiring a prescription for vitamins. That is usually the first line

of attack from people in the industry when you suggest changing

DSHEA.

But I am in favor of establishing standards, which some have

even been acknowledged by the industry, which will provide some

standards in terms of manufacture, in terms of the people that are

sold these drugs, in terms of the dosage, what is a safe dosage, the

representations made as to those dosages, and, going back to Mr.

Davis’s earlier comments, the need for medical supervision when it

comes to some of these nutritional supplements.

All of these things need to be done. All of us have an obligation

to do it. Dr. Crawford, you are new to the job. I can’t blame you

for what came before you and I certainly can’t blame you for

DSHEA. But those of us in positions of responsibility in Congress

have an obligation to the families across this country to do something.

I thank you for your testimony today. I will continue to work

with you and Secretary Thompson in the hopes that we can bring

some resolution to this as quickly as possible. Thank you very

much.

This hearing stands adjourned.

[Whereupon, at 3:16 p.m., the Subcommittee was adjourned.]

(53)

A P P E N D I X

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

166

167

168

169

170

171

172

173

174

175

176

177

178

179

180

181

182

183

184

185

186

187

188

189

190

Æ