The DEA Should Take Over All Sports Doping Enforcement

By James J. Gormley

In February 2010 in New Orleans, three men were charged by the U.S. Drug Enforcement Administration (DEA) with drug-trafficking Ecstasy, or MDMA (3-4-Methylenedioxymethamphetamine), a synthetic chemical that can be derived from an essential oil of the sassafras tree.

If convicted, the defendants face a possible maximum sentence of 20 years in prison, a $1 million fine and at least three years of supervised release for each count.

MDMA is also one of the easiest illegal drugs to obtain. Its effects are similar to those of amphetamines and hallucinogens. First developed as an appetite suppressant in 1912, MDMA was used as a psychotherapeutic tool and also started to become available on the street is the late 1970s and early 1980s. It wasn’t until 1985 that Ecstasy was made illegal. It is classified as a “Schedule 1” controlled substance along with other narcotics like heroin, cocaine and LSD.

One reason Ecstasy can be especially dangerous is the lack of content control. Ingredients are hard to get and manufacturers of the drug often use substitutes, mixing other harmful additives with the already dangerous mix. This practice is so common that “drug test kits” are often sold with the drug so users can test for purity.

Because of the uncertainties about the drug sources, pharmacological agents, chemicals used to manufacture them, and possible contaminants, it is difficult to measure the toxicity, consequences and symptoms that might be expected.

Herbal Ecstasy is another form of MDMA that is composed of ephedrine or pseudoephedrine hydrochloride and caffeine from the kola nut. Also sold in tablet form, Herbal Ecstasy can cause permanent brain damage and death. Though not currently classified as a controlled substance, Herbal Ecstasy shares many of the same qualities and effects as MDMA. Also known as Cloud 9, Herbal Bliss, Ritual Spirit, Herbal X, GWM, Rave Energy, Ultimate Xphoria and X.

Anabolic Steroids
Anabolic steroids are synthetically produced versions of the naturally occurring male hormone, testosterone. Both males and females have testosterone produced in their bodies: males in the testes, and females in the ovaries and other tissues. The full name for this class of drugs is androgenic (promoting masculine characteristics) anabolic (tissue building) steroids (the class of drugs).

Some of the common street names for anabolic steroids include: arnolds, gym candy, pumpers, 'roids, stackers, weight trainers and juice. Currently, there are more than 100 different types of anabolic steroids that have been developed, and each requires a prescription to be used legally in the U.S.

Anabolic steroids can be taken orally, injected intramuscularly, or rubbed on the skin when in the form of gels or creams. These drugs are often used in patterns called cycling, which involves taking multiple doses of steroids over a specific period of time, stopping for a period, and starting again. Users also frequently combine several different types of steroids in a process known as stacking. By doing this, users, more properly abusers, believe that the different steroids will interact to produce an effect on muscle size that is greater than the effects of using each drug individually.

Another mode of steroid use is called "pyramiding." With this method abusers slowly escalate steroid use (increasing the number of drugs used at one time and/or the dose and frequency of one or more steroids), reach a peak amount at mid-cycle and gradually taper the dose toward the end of the cycle. The escalation of steroid abuse can vary with different types of training. Bodybuilders and weight lifters tend to escalate their dose to a much higher level than do long distance runners or swimmers.

Legislation and Enforcement
On March 16th 2004, Joseph Rannazzisi, then deputy director of the DEA's Office of Diversion Control, said in testimony before the House Subcommittee on Crime, Terrorism and Homeland Security:

"The DEA has one mission: to protect the public from dangerous drugs. However, the current law regarding steroids causes regulatory delay, especially with respect to steroids that we know are hormonally, chemically or pharmacologically related to testosterone. Because DEA’s authority extends only to controlled substances, steroids that are not classified as controlled substances continue to fall outside our jurisdiction. H.R. 3866 [The Anabolic Steroid Control Act of 2004 ] will correct this problem."

Well, the Anabolic Steroid Control Act passed in October 2004. 

On the bill's passage, one of its sponsors, Sen. Orrin Hatch (R-UT), remarked:

"Under this bill, clever chemists will no longer be able to dodge the law by disguising their chemicals to skirt the legal definition of a steroid. Our bill gives the Drug Enforcement Agency the power to schedule nearly any steroid precursor now or in the future--giving the law flexibility we don't have to play catch-up with every new andro look-alike that comes along."

On September 29, 2009, the DEA's Rannazzsi, now deputy assistant administrator, said this in testimony before the Subcommittee on Crime and Drugs:

"Although DEA does not have the authority to enforce DSHEA [the Dietary Supplement Health and Education Act of 1994], DEA does have statutory authority to investigate incidents involving the illegal manufacture and distribution of anabolic adrenergic steroids in the dietary supplement market. [...] DEA has the authority and responsibility to investigate companies that are marketing products as dietary supplements that are adulterated with controlled substances."

As well the DEA should; if yogurt were suddenly used as a delivery vehicle for sports steroids, would our guardians of public health call for a new law restricting access to yogurt or would increased enforcement and enforcement funding be directed to the DEA to get the job done? The latter, I would think.

If supplements are being adulterated by illegal labs, why then should supplements get a bad rap? Steroids and sports doping is all about unethical pharmacies and illegal labs.

Case in point, in January 2009, a 198-count DEA indictment was unsealed charging 12 pharmacists and pharmacy owners with participating in a conspiracy that dispensed and sold thousands of dosages of anabolic steroids, including powerful veterinary steroids approved for animal use only.

Another case in point: in October 2009 the DEA announced the completion of a 10-month undercover investigation into an illegal anabolic steroid manufacturing ring that led to three arrests. In the raid, agents seized over 500 vials and 1,850 capsules of anabolic steroid pills.

While the U.S. Food and Drug Administration (FDA) has been involved in sweeps relating to the illegal sale of unapproved or misbranded drugs, such as the recent Internet sweep in November 2009 called the "International Internet Week of Action," many observers, including this commentator, strongly believe that all investigation and enforcement of sports doping and illegal steroid distribution and use should immediately be more clearly placed under the aegis of the DEA, as sports doping is not a problem of food products (such as supplements) but a problem of drugs---a problem of dope, pure and simple.

An Open Letter to Consumer Reports: 10 Misinformation Hazards in Your “10 Surprising Dangers of Vitamins and Supplements” Article

By James J. Gormley

It is personally disappointing for me that Consumer Reports, the flagship of the respected marketplace-empowerment organization, Consumers Union, has once again seen fit to arm the American consumer with detrimental misinformation regarding safe, beneficial food supplements.

In the alarmist piece which appears in the September 2012 issue, the anti-supplement subtitle reads: “Don’t assume they’re safe because they’re all natural.”

Here are the “10 Surprising Dangers” along with some accurate information and perspective:

“1. Supplements are not risk free.”
With 3,000 deaths and 128,000 hospitalizations a year from food poisoning, it is clear that nothing in life is risk-free, but we already knew this. It would be of better service to do an expose on the dangers of properly prescribed pharmaceuticals, which injure over 1 million and kill over 100,00 Americans each year in hospitals alone. The subtitle on a prescription drugs-focused article could read: “Don’t assume they’re safe because they’re FDA-approved.”

The fact of the matter is that food supplements are inherently benign and pharmaceuticals are inherently dangerous; they are part of a completely different risk paradigm. With the millions of supplements sold and safely used every year, dietary supplements have an enviable consumer safety record.

Since the 1994 enactment of the Dietary Supplement Health and Education Act of 1994 (DSHEA), FDA has had the authority to remove any dietary supplement from the market if FDA shows that it presents "a significant or unreasonable risk of illness or injury" or that it contains "a poisonous or deleterious substance which may render it injurious to health." In fact, the FDA can act immediately against any product that poses an "imminent hazard to public health or safety." With the passage of the Food Safety Modernization Act (FSMA) in 2011, the FDA’s mandatory recall authority was affirmed and expanded.

Recently released data from risk-management expert Ron Law confirmed that food supplements are by far the safest substances that people are exposed to daily (http://tinyurl.com/ron-law-data).

“2. Some supplements are really prescription drugs.”
Supplements are a class of food, not drugs, so drugs masquerading as supplements is a drug adulteration problem best handled by the Drug Enforcement Administration (DEA), something which I and Citizens for Health have been calling for since early 2010 (http://tinyurl.com/dea-should-take-over), which is now being supported by industry as well (http://tinyurl.com/dea-and-steroids).

“3. You can overdose on vitamins and minerals.”
With only a few exceptions (e.g., iron, selenium, zinc, vitamin A), even with the dosages found in high-potency supplements there is a window of safety on supplements of several hundred percent; in fact, most supplements are so safe that no upper limit can even be determined. What we really have to worry about are the over 13,000 truly dangerous prescription drugs on the market with known side effects.

“4. You can’t depend on warning labels.”
True, but since dietary supplements are inherently benign with a margin of safety a mile wide, there is virtually nothing to warn consumers about. To be conservative, many products carry cautions relating to consumption by children and pregnant/breastfeeding women, but this is more to protect companies from actions stemming from gross misuse.

“5. None are proven to cure major diseases.”
The same can be said for prescription drugs. And even if they did, supplement manufacturers would not be allowed to tell consumers about it. Regardless, supplements are complements to the diet not substitutes for healthy food and physical activity.

“6. Buy with caution from botanicas.”
I would venture to say that apart from cities bordering Mexico, over 99.999% of herbal products are sold through mainstream channels of trade. We could also say “don’t buy prescription pain killers” on the black market or from peddlers in back alleys, but some level of common sense usually prevails.

“7. Heart and cancer protection: not proven.”
The American Heart Association recommends a diet rich in marine-based omega-3s, and the U.S. government has approved health claims for vitamin D and calcium supplementation. In 2005, Harvard researchers estimated that low intake of omega-3s in the U.S. diet accounted for 72,000 to 96,000 deaths from cardiovascular disease. There have been numerous animal studies showing direct cancer prevention with omega-3s and epidemiological studies associating high levels of dietary omega-3s with reduced rates of cancer.

“8. Choking.”
Now Consumer Reports is really reaching. Anybody who tries to dry-swallow any pill can experience a gag reflex, which is not a problem unique to any one class of products.

“9. Some natural products are anything but.”
Most dietary ingredients are analogues of natural extracts; technologists are not standing around with wooden mallets, mortars and pestles. There are only one or two cases where a true synthetic is not as efficacious as a natural source nutrient, and that is with vitamin E.

“10. You may not need supplements at all.”
But we need drugs? For decades the USDA has shown that most of us do not get anywhere near a basic level of vitamins and minerals from the standard American diet, so it would be a rare person indeed who would not stand to benefit from a multivitamin/multimineral supplement at the very least.

Although Consumers Union has a long, and illustrious, track record in advocating for consumers, Consumer Reports appears to have a bug in its bonnet regarding dietary supplements, either that or single-copy newsstand sales soar when “supplements are bad” stories are run.

This is unfortunate, since scare-mongering re safe, well-regulated and effective dietary supplements will, at best, only serve to unfairly cause consumers to wrongly distrust a beneficial class of products and, at worst, drive even more Americans away from responsible self-care into the welcoming arms of drug-happy conventional medicine.

That’s not what I call consumer advocacy.

The Food Safety Law: The Way Forward

By James J. Gormley

The biggest food-industry-related issue of the 2009-2010 Congress was S. 510/HR 2751, the Food Safety Modernization Act (FSMA or Public Law 111-353).

Advocacy and political positioning on the FSMA exemplified both successes that can be achieved via industry-consumer collaboration and yet, ultimately, likewise the failure of such a collaboration to achieve more than the political version of NIMBY (not in my back yard) accomplishments.

What trade groups failed to realize:

1. While the FSMA does provide some improved food-safety system measures, its over-reliance on recordkeeping and documentation that features a Hazard Analysis and Critical Control Point (HACCP) algorithmic/risk-based approach to food safety, and an under-reliance on on-site physical inspections, does nothing to address the core problems in this country’s food-safety system: filthy factory farms and disgusting slaughterhouses.
2. While these groups are patting each other on the back for being representatives of the regulated industry that have a “seat at the table,” their members’ raw material suppliers are being saddled with a dizzyingly complex and expensive system of paperwork and systems, onerous requirements whose impact is already being felt by companies that are attempting to be forward-compliant.
3. If the FDA abuses its now expanded powers, legitimate manufacturers (and classes of products) will be swept up in its allegations of adulteration, contamination and misbranding.
4. The organic trade groups will regret their effusive praise if raw milk and raw milk cheeses (a cottage industry and gourmet food segment) are taken off the market.
5. Although all trade groups claim that consumer benefit and consumer safety are at the very core of everything they support, including this law, they disregarded the fact that consumer health freedom organizations — groups which truly represent consumer interests — were completely opposed to S. 510 and HR 2751 and that tens of thousands of letters were sent to Congress demanding that this bill not pass in its current form (this is on top of over 20,000 letters to the White House calling for its veto).

Regardless, once trade groups and some conservative consumer groups saw that farms and dietary supplement finished products were ostensibly excluded from HR 2751, most parties claimed victory and applauded the bill’s passage despite the fact that very troubling provisions remain in the law, such as:

Reasonable probability and reasonable belief: According to Section 423, if there is a “reasonable probability” that an article of food is adulterated under section 402 or misbranded under section 403, the U.S. Food and Drug Administration will offer the manufacturer an “opportunity to cease distribution and recall such article.”

DANGER: The FDA has often called products misbranded based on the flimsiest of bases; it has also challenged the GRAS status of certain ingredients (or the data behind NDI filings) as a back-door attempt to go after certain combination supplements. The FDA has also made clear its regulatory animus regarding raw milk products (milk, cheeses). The FDA could very well attempt to use its expanded recall authority to effectively go on a “witch hunt” against certain products or classes or products that it cannot hurt through existing law.

Section 113 (new dietary ingredients) re anabolic steroids: One example of where dietary supplements were not totally excluded from HR 2751 is Section 113, wherein there is a proviso to notify the U.S. Drug Enforcement Administration (DEA) if dietary supplements contain anabolic steroids, which could be excellent if judiciously applied — this was something I am pleased to note that I personally created a campaign on via Citizens for Health and various calls to action.
POTENTIAL DANGER: Nevertheless, the FDA merely needs to suspect that a supplement “may contain” an anabolic steroid or anabolic steroid analogue in order to refer a dietary supplement for DEA enforcement, which does open the door to potential targeting of legitimate manufacturers along with the fly-by-night operators.

Section 207. Administrative detention of food. In the final version of HR 2751, “credible evidence” was changed to “reason to believe” for suspected adulterated or contaminated food to be quarantined.

DANGER: Now the FDA does not even need credible evidence in order to impound food; all the agency needs to have is a gut feeling that food is dangerous, and it can be quarantined. While this might help in cases of intentional poisoning of the food supply, it does provide the FDA a great deal of additional discretionary authority.

Section 404. Compliance with International Agreements. Nothing in this act (or an amendment made by this act) shall be construed in a manner inconsistent with the agreement establishing the World Trade Organization (WTO) or any other treaty or international agreement to which the U.S. is a party (e.g., General Agreement on Tariffs and Trade [GATT], NAFTA, the Uruguay Rounds, Codex).

DANGER: This is dangerous ground even if it was intended as a pro forma thruway. As an example of unintended, sovereignty-endangering consequences of nations including such language, one commentator claims that in Canada’s new Bill C-36, Health Canada has proposed that the powers provided to Parliament should be forfeited so that Canada can “honor its international agreements and commitments”! The FDA has not provided any explanation, much less a good reason, as to why sovereign U.S. domestic laws and regulations would need to be consistent, or not inconsistent, with international treaties and agreements.

Section 420. Limited distribution. “In the interest of national security, the Secretary of HHS, in consultation with the Secretary of Homeland Security, may determine the time, manner and form in which the guidance documents […] are made public, including by releasing such documents to targeted audiences.”

DANGER: If the U.S. government does not care to release the very instructions and guidance needed by suppliers and producers in order to properly comply with the requirements, the government does not have to, if cloaked under the usual catch-all blanket of “national security.” Obviously, in this way many food producers would likely fail if the requirements (and related compliance guidance) are a secret until inspection. This is similar to a teacher handing you a graded final exam despite the fact that you were denied the course, the textbook, the studying and the very exam questions themselves. Talk about setting food producer and ingredient suppliers up for failure!

The FSMA’s fate
Passage of this bill won’t change much unless the bill is funded. In this economic environment, it will be difficult to get the $1.4 billion required to implement this bill without some revenue generator, which this bill does not include. There has already been talk from Republicans in the House that they will not fund the bill. The government is currently under a continuing resolution (CR) which expires on March 4. So one of the first challenges for the new Congress is how they handle the Fiscal Year 2011 budget. Therefore, it is unlikely that anyone will get an increase in this environment. Some lobbying from states is also anticipated since they’ll be able to seek a variance from the produce safety standards as long as they can show that they have procedures in place to reach the same goals.

The way forward

Effective health-freedom advocacy in 112th Congress. On the good side, the Republican-controlled House bodes well for anti-big-government, anti-big-spending, fiscally conservative efforts, including efforts to de-fund “Obamacare” (which will encounter stiff opposition in the Senate) and the FSMA (which is winnable).

One thing to keep in mind: Many old-school, good government Democrats vote anti-supplement because they honestly believe that, in so doing, they are protecting consumers. Some of the anti-supplement co-sponsors are also anti-GMO.

Therefore, approaches to the good-government Dems (called goo-goos) should not attack them as being anti-supplement but should, instead, make it clear that most measures which hurt consumer access to supplements and supplement information also hurts consumers themselves. We must drive home one of Benjamin Franklin’s many truths:

“The man who trades freedom for security does not deserve nor will he ever receive either.”

Newsflash: Dietary Supplements Are Safe and Beneficial: Prescription Drugs Are Not!

By James J. Gormley

On August 23^rd, Newsday, a New York City newspaper ranked by Dr. Tim Groseclose as one of the top 61 most “liberal” local newspapers in the U.S. ran an article amazingly entitled, “FDA Official: 70% of Supplement Companies Violate Agency Rules.”

By “liberal” Groseclose did not mean the classical liberalism of a Thomas Jefferson or an Abraham Lincoln but the “big government,” nanny-state modern liberalism ushered in by Woodrow Wilson and expanded upon after 1921.

So perhaps we should not be completely surprised that any liberal paper would slant its coverage to support the unaccountable bureaucratic leviathan than the FDA is today ─ but, sadly, this does not serve the paper’s roughly 378,000 daily readers, readers who are, in large part, also consumers of dietary supplements ─ or at least they were before the above-cited “the sky is falling” article.

Dietary Supplements: The Real Story

Good Manufacturing Practices (GMPs) for dietary supplements are not new. The federal Current Good Manufacturing Practices for dietary supplements (21 CFR Part 111) were issued six years ago, and the Natural Products Association (NPA) rolled out its own voluntary GMP-certification program in 1999.

Contrary to the horror show of allegedly widespread incompetence, contamination and criminal negligence portrayed by the article, dietary supplements (a class of food products) are even more regulated than is food. According to whom, you ask?

How about the country’s most respected expert on food and drug law, attorney Peter Barton Hutt, who served as Chief Counsel for the FDA from 1971 to 1975, has taught food and drug law at Harvard for over 20 years, is the co-author of Food and Drug Law: Cases and Materials (Foundation Press, 3^rd edition 2007), and has published more than 175 book chapters and articles on food and drug law and also on health policy?

“The [Food Drug and Cosmetic Act], as amended by DSHEA and the Dietary Supplement and Nonprescription Drug Consumer Protection Act, provides somewhat greater FDA regulatory authority over dietary supplements than over conventional food,” noted Hutt in a white paper commissioned by the Council for Responsible Nutrition (CRN) entitled FDA Statutory Authority to Regulate the Safety of Dietary Supplements (2^nd edition, 2011).

Safety: The Facts

According to the Newsday article, approximately 6,300 adverse event reports were submitted for dietary supplements from 2008 to 2012, a 4-year period. 

Not even considering the fact that most of these reports were likely inaccurately linked to supplements when other factors were the more probable causes, in the same period Pharmaceutical Commerce reports that were approximately 3,260,000 adverse events reported for pharmaceutical drugs!

I don’t recall seeing this stark comparison in the newspaper article.

The FDA official quoted in the story, Daniel Fabricant, Ph.D., was formerly the science head for the NPA, and was a staunch defender of natural products until he became its chief critic at the FDA.

On August 26^th, John Spilateri Shaw, the CEO of Dr. Fabricant’s alma mater, the NPA, noted in an open letter to Newsday that “industry members strongly support providing additional resources for the FDA to keep illegal products disguised as legitimate supplements off the market.”

The vast majority of “supplements are beneficial, and millions of Americans depend on them each day,” Shaw added in his letter. “Your readers should continue to use these products that safely and positively influence their lives on a daily basis.”

Prescription and OTC Drugs: Safety? Not So Much

And what about the FDA takeover of three drug plants in 2011 following “shocking conditions” at the plants where one of the most popular line of over-the-counter (OTC) pain relievers (rhymes with “i-lenol”) were manufactured. "This inspection report is pretty close to being the worst I've seen,” according to David Lebo, a professor of pharmaceutical manufacturing at Temple University in Philadelphia, in an interview for CNNMoney.

The inspections reportedly uncovered safety and quality violations in every system, control and process, from bacterial contamination, to filthy manufacturing and storage conditions, to super-potent levels of pain relievers in batches of the infant pain-relief formula.

Didn’t see much media coverage of this, did you? I only noticed an obvious absence of the products from store shelves, and that was my first tip-off.

Hutt added: “DSHEA provides greater FDA scrutiny of new dietary ingredients than exists for new conventional food ingredients and adds new safety enforcement authority for all dietary supplements that extends beyond the FDA authority applicable to conventional food.”

Adulterated Supplements Are Illegal Drugs, Not Supplements

As to cases of deliberate adulteration of dietary supplements, if the ingredients were anabolic steroids, the product in question would then be an illegal drug ─ not a supplement ─ and it is subject to action by the U.S. Drug Enforcement Administration (DEA). I have been calling for the DEA to step up to the plate since 2010.

The same with deliberate contamination with weight-loss, sleep aid, or sexual health drugs, the rare number of cases of this type of adulteration also renders this type of hybrid product an illegal drug; it is no longer a dietary supplement product or issue.

As to even more rare cases of legitimate manufacturers who unwittingly receive and use shoddy, contaminated or adulterated raw materials due to falsified documentation and certifications, it is the manufacturer’s responsibility to ensure the purity and safety of the ingredients it uses, and there are multiple mechanisms in place to quarantine, test and verify ingredients before they are included in finished dietary supplement products.

Peter Barton Hutt's Takeaway on Supplement (Hyper) Regulation

“DSHEA adds three additional procedural safeguards for dietary supplement court actions to assure that FDA will act fairly and equitably in its enforcement of safety requirements, but does not substantially change the requirements applicable to court actions involving conventional food,” noted Hutt.

According to him, “The Dietary Supplement and Nonprescription Drug Consumer Protection Act expands FDA’s regulatory authority over dietary supplements by adding postmarket reporting and recordkeeping requirements that are more stringent than those that apply to conventional food.”

“Thus, in many ways, the current food safety provisions of the [Food Drug and Cosmetic Act] provide FDA with greater substantive authority over dietary supplements than they provide for conventional food, and the modest procedural changes in the court enforcement requirements have had no impact thus far and are unlikely to have a significant impact in the future,” Hutt concluded.

To counter the article’s misleading timeline with one that more accurately reflects the safety and consumer protections surrounding dietary supplements, I offer, by way of conclusion,  this one adapted from Peter Hutt's white paper:

• 1994: Congress enacted the Dietary Supplement Health and Education Act (DSHEA) to to continue the regulation of dietary supplements under the food provisions of the FD&C Act but to replace the food additive provisions with separate safety requirements for dietary ingredients.
• 2002: Congress enacted the Public Health Security and Bioterrorism Preparedness and Response to provide additional authority to assure the safety of the food supply. In 2006, Congress enacted the Dietary Supplement and Nonprescription Drug Consumer Protection Act to require mandatory adverse event reporting systems for dietary supplements.
• 2007: Congress enacted the Food and Drug Administration Amendments Act of 2007 (FDAAA) to prohibit the addition of drugs or biologics to food and to authorize the creation of a “reportable food registry” to collect information about articles of food that may pose serious health risks.
• 2011: Congress enacted the FDA Food Safety Modernization Act (FSMA) to improve FDA’s capacity to prevent, detect, and respond to food safety problems.

Good Intentions Do Not A Good Bill Make; President Obama Must Veto This Bill

By James J. Gormley

President Obama is waiting to hear from you, your neighbors, your brothers, your sisters, your parents — and all of America — as to whether to sign the "food safety bill" into law.

If you agree with all of the problems we have identified with this bill — or even with most of them — I ask you to please go to the White House comment page and ask the President to veto this bill.

It’s not that the bill is meant to disrupt the American Way of Life or forever change the fabric of our great nation. It is not badly intentioned. It even has some decent provisions in it. On top of that, dietary supplements were ostensibly excluded, as were farms and small food-service operations.

The problem is not what was intended, or what FDA Commissioner Hamburg believes is in this bill. The problem is that the bill’s advocates and many of its supporters were all sold a bill of goods.

The fact is that FSMA will do very little to improve food safety; and, in truth, by obscuring the real core of our nation’s food safety problems with layer upon layer of HACCP requirements, and food allergenicity protections and food safety recordkeeping plans — and all of the $1.4 billion worth of stuff (red tape and feel good busywork) in this bill — this bill would actually make things worse.

Why? Because while Dr. Hamburg and the bill’s cheerleaders are busy shaking hands, and slapping each other on the back as to what an amazing bill this is (which it is not), the disgusting factory farms and filthy slaughterhouses in this country — which are the real problems with our food supply, let’s face it — will not be made any less filthy by this $1.4 billion boondoggle.

What are the remaining problems with this bill that make it un-signable?

If the FDA (Secretary of the HHS) has a “reasonable belief” or feels there is a “reasonable probability” that a food is unsafe, records inspections must be carried out and foods can be quarantined. The FDA has a long and sordid history of abusing this power by making assumptions that hurt food producers, and ultimately consumers.

The FDA already believes (without a shred of evidence) that raw milk and raw milk cheeses are unsafe — wouldn’t this be the perfect opportunity for the FDA to close down a cottage industry towards which it has always held such animus?

Now while it is potentially good that the bill includes a proviso (in Section 113) calling for dietary supplement products (that’s why I said ostensibly excludes, above) that may contain (or may be) anabolic steroids to be referred to the DEA, the problem is that that it is way too vague: "may contain" is not definitive enough by a long stretch, which opens the doors for the FDA to believe that many supplements “may contain” anabolic steroids, and hurt legitimate manufacturers in the process.

Section 423 offers manufactuers an opportunity to voluntarily take a product off the market and recall it if the FDA feels that there is a “reasonable probability” that an article of food is misbranded. Well, here we go again; the FDA has time and again greatly overarched in its authority in these areas, often calling products “misbranded” for the smallest mistake in a nutrition facts or product label.

Section 404 insists that nothing in the bill shall in any way be inconsistent with the World Trade Organization or any other international treaty or agreement to which the U.S. is a party! Okay, again, can anyone explain why (I ask why) domestic, sovereign, internal U.S. laws and regulations need to be consistent with international treaties and agreements (such as Codex)?

Section 420 calls for limited distribution of the guidance documents that food producers would need in order to comply with this law in the interests of “national security.” This says that although food facilties will be required to comply with this new law, if the U.S. government does not feel like releasing instructions and guidance on how to properly comply with the requirements, it does not have to, if blanketed under the usual sacred cow of “national security.” Outrageous!

FDA Commissioner Margaret A. Hamburg MD truly believes that the Food Safety Modernization Act (FSMA) is the greatest thing ever. Sadly, it is not worthy of the President’s signature and was railroaded through Congress under suspended rules and other legislative sleight of hand.

I ask you to tell President Obama to please veto this bill; we will work together on coming up with an alternative bill in 2011 that will be signature-worthy.