McCAIN'S BILL S-3002 IS AN OVERKILL ON DIETARY SUPPLEMENTS
PART 2 of 2
Scott Tips, JD
March 10, 2010
The Real Solution
Now, suppose, as scientist and author Durk Pearson has done in an alternate scenario, that after the failed attempt of Richard Reid (the terrorist shoe bomber) to blow up a transatlantic airplane, the government had reacted in the same way as McCain is proposing to do now.
That is, did Reid’s attempt mean that the United States needed to register shoe stores and shoe salesmen? Did it mean that the United States needed to create more regulations on shoe manufacturers? Did it mean that all new shoe designs had to be approved before sale by a shoe-design czar? Did it mean that the shoe-design czar had to have recall authority over all shoes?
No, of course not! What could be sillier? It simply meant that more testing needed to be done at airports to make sure that people were not walking on board airplanes with bombs on their feet disguised as shoes rather than with legitimate shoes. Had the government followed the McCain “solution,” the law would have done nothing to prevent the next bombing attempt. Shoe bombers would have simply ignored the restrictions, violated the law and walked onboard airplanes with already-illegal explosives in their shoes.
If McCain’s intentions had been truly honest, and if his bill were not simply a pure power grab or an effort on behalf of wealthy special-interest groups, then the government would test for anabolic properties all of those products advertised to increase muscle mass or size. This kind of testing would not interfere with legitimate dietary supplements.
How do you test for new synthetic anabolic steroids? Durk Pearson suggests that you put out a bid for a test that costs under $10 per analysis and that quantitatively measures the activation of the human testosterone and dihydrotestosterone receptors on genetically engineered bacteria. If the material has testosterone-receptor activation properties stronger than 0.1% of testosterone, it is banned as an ingredient in dietary supplements. If it doesn't activate the human testosterone or dihydrotestosterone receptors, then it is not an anabolic substance. Use existing laws that the FDA has already been slow to enforce. End of problem.
The 18th-century French philosopher and satirist the Baron de Montesquieu once observed, “Useless laws weaken the necessary laws.” S.3002 is one such useless law, which, by way of just one small example, would divert regulators’ attentions away from those serious adverse events hidden within an ocean of trivial “adverse” events. It also creates many senseless compliance requirements that take companies’ time and attention away from real quality control.
Rather, all this useless law would accomplish is to weaken the economy and health of the United States and its population. To save a handful of well-paid athletes, McCain’s scattergun approach would instead seriously harm the health of millions of supplement users and erase from the health world many existing supplements as well as most of those as-yet-to-be-discovered supplements. It is absolute madness and typical for our times where no good bills are ever passed, only bad ones.
If John McCain is keen to stop lawbreakers, then perhaps he should just turn around and look at his own supporters. Are any of them in violation of the law? We do not know, but as the National Health Federation’s lobbyist, Lee Bechtel, has noted, “The U.S. Anti-Doping Agency (USADA) receives $7 million in a direct Federal grant and an additional $3 million from a contractual agreement with the United States Olympic Committee. In general this $10 million is Federal money appropriated by Congress. USC Title 18, Chapter 93, Section 1912 stipulates that ‘No part of money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress … to favor, adopt, or oppose, by vote or otherwise, any legislation, … whether before or after the introduction of any bill, measure, or resolution proposing such legislation …’ This raises eyebrows about USADA’s lobbying efforts.”
In addition to directly supporting the Supplement Safety Now, there are direct or indirect references to the organization's support of S.3002, sponsored by Senator John McCain. It is unclear as to whether the USADA, or a company it may employ, has registered with Congress, as is required under the Lobbying Disclosure Act (P.L. 104-65, 31 USC § 1352).
In early March, the National Health Federation sent USADA a demand letter reminding it of its obligations under Federal regulations and demanding a response to the above question as to whether USADA is using any of its Federal funds in support of the McCain bill. As of this writing, it is too soon for any response to this recent demand, and compliance is possible. But we would like to know. Both this letter and any response will be posted on the NHF Web site.
Serious and Sustained Opposition
All of the health-freedom and industry trade organizations are united in opposition to this senseless and dangerous legislation. The number of press releases issued by them in opposition to this bill is astounding (see press release one, press release two, and press release three). Talk-show hosts throughout the country are speaking out against the bill, while the Federation has an on-line petition (see press release four) opposing the bill that all are urged to sign. And the Washington, D.C. law firm of Venable LLP has organized a strong coalition of industry and other opponents for a combined effort against the legislation. Early on, Venable asked NHF to join this coalition.
Reports, though, are coming back that the politicians supporting this bill are completely out of touch with reality. One NHF member called McCain's office about S.3002 only to be asked if she herself had read the bill. When she replied yes, the McCain staffer ignorantly told her that McCain just wants all ingredients to be labeled on the bottle! Obviously, McCain and his staff are the ones that need to read their own bill and then make a field trip into any health-food store so that they can see with their own eyes that ingredients are already on supplement labels.
Probably written by the same staff members, McCain’s Senate Floor Statement of February 22nd repeats the same ignorance, even illiteracy: “If you go to a grocery store and pick up a box of cereal, bread, yogurt or any product off the shelf, you can read the product’s label to clearly know the ingredients and be sure you aren’t eating something that you find concerning, hazardous or unhealthy. Those who take dietary supplements should have the same option. Simply put, this legislation is about truth in labeling.”
Senator Jack Reed (D-RI) is another of the great unwashed and misinformed. In an e-mail, dated February 23, 2010, that he must also be sending to all other persons contacting him about his support for this bill, he responded in part, “While I recognize the potential health benefits of dietary supplements, I strongly believe that consumers need to have accurate information about these substances…As you may know, S.3002 would create new regulations for dietary supplement manufacturers to ensure patient safety and health.” Unfortunately, Jack Reed is a member of the Senate Committee on Health, Education, Labor, and Pensions, to which S.3002 was referred. And, equally unfortunate, Senator Reed has not a clue about either current law or this bill.
Fortunately, those organizations, individuals and constituents arguing against S.3002 have been addressing this kind of nonsense being pushed out to the public. If politicians cannot read, or will not, then we must make them. After all, politicians do not see the light, they feel the heat.
And John McCain has most definitely felt the scorching heat – not only from American citizens but also from a fellow Senator. Senator Orrin Hatch (R-UT) had a private meeting with McCain on behalf of the industry and his constituents this month and, and as he has so often done for this industry in the past, he saved the day by convincing McCain to withdraw his support from S.3002.
Kill the Bill
Even before Senator McCain agreed to drop his support for S.3002, trade organizations such as the Council for Responsible Nutrition had not believed that the McCain bill has any legs, while lawyers at Venable thought that perhaps the registration part would have legs and that the mandatory-recall provision could only pass if the language were modified to apply only to those products actually constituting a dangerous health risk. In any event, no House companion bill was introduced; and perhaps never will be with McCain knocking out the props from his own bill. But even with the Hatch-McCain “stake through the heart” of S.3002, the beast is not yet four legs stiff in the air. Pressure must still be brought to bear on its other sponsors and supporters since we cannot afford the luxury of sitting back when this Congress has a sneaky habit of trying to pass anti-freedom bills like this one while the citizens doze.
Moreover, regardless of the impending or actual demise of S.3002, McCain and Hatch will now join together on a revised bill that will supposedly create transparency and safety for supplements without the ham-fisted bureaucracy of S.3002. As Hatch wrote to McCain in early March, “I'm counting on you to work with me to make sure this important industry does not fall prey to over-regulatory regimes and mounds of costly government bureaucracy." This is a welcome improvement, but we should be done compromising on any legislation such as this.
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The FDA already has ample power to deal with the illegal steroid issue. If you keep compromising freedom with slavery, salami slice by salami slice, eventually you end up a slave. This bill, and any successor bill, must be killed – deader than a doornail. Only that will send a message to those who would take away our health freedoms and to those who cannot read. For part one click below.
Click here for part -----> 1,
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