What’s old is new again? The FDA takes aim at modern science and innovation

By James J. Gormley

On January 4th, 2011, the Food Safety Modernization Act (FSMA) was signed into law. It included a number of requirements, including one that the FDA issue industry guidance as to when companies need to submit New Dietary Ingredient (NDI) notifications to the agency and when they do not, and about 186 calendar days after that, on July 1st, the FDA issued a draft guidance on new dietary ingredients.

What is all this about old and new dietary ingredients? Old dietary ingredients (ODIs) are nutritional ingredients ─ herbal extracts and nutrients ─ that were sold prior to 1994 and were considered to be “grandfathered in,” and “generally recognized as safe” when NDI submissions were first required, so manufacturers did not need to worry about ingredients that were always in the food supply in foods or food-based supplements.

NDIs, on the other hand, were supposed to be completely new compounds – often hybrids of nutrients – never before seen in nature in exactly that form. Notwithstanding, this itself was always considered a strange requirement, however, since many safe nutrients are often combined with other safe, natural substances that help the mineral or vitamin’s absorption, so how could these benign compounds be considered “new” when compared to products of genetically engineered bacterial fermentation, for example.

So, many companies were advised by legal and industry experts to not submit NDI notifications since the products in question were exempt from the requirements since the individual parts of the compound were considered safe anyway. On top of that, the FDA was rejecting so many NDI submissions on administrative grounds alone that companies understandably began to see the NDI process and non-objection threshold as impenetrable, indeed.

Fast forward to this guidance, which was actually originally mandated in our main dietary supplement law, the Dietary Supplement Health and Education Act of 1994 (or DSHEA), but it has somehow taken the FDA 17 years to get around to it.

The FDA and its apologists are saying that this is no big surprise and has been a long time in the making. Be that as it may, natural products industry organizations have raised a number of important objections to the dangers to innovation posed by this guidance and policy and procedures that may well follow from it.

“We believe the draft guidance does not match Congress’ clear intent that products made from ingredients on the market prior to DSHEA should remain on the market,” noted the Natural Products Association in a July 6th statement.

As the “decision tree” provided by the FDA with this guidance makes clear, if a new manufacturing process, extraction method or plant part is used, then it is a new dietary ingredient!

This is absurd! This means that if hexane or other harsh solvents were used in the past, and safer solvents are used today that better preserve the integrity of the ingredients (such as grain alcohol or glycerin), that these solvents now render the ingredients as NDIs even though the extracts are closer to what’s growing in the soil than how it was extracted in 1993!

As Steve Mister of the Council for Responsible Nutrition (CRN) said to Nutraingredients-usa.com, “They are trying to freeze industry in 1994 and lock us into extraction processed used 20 years ago.”


The guidance also states that synthetic versions of natural ingredients are also NDIs. What!? Virtually every product sold today includes synthesized, exactly bio-identical versions of what is found in a plant, nut, seed, fruit or soil. We are not talking artificial ingredients here; think vitamin C, as that’s what we’re talking about. If this is followed by FDA, most supplement ingredients and supplements containing them could eventually get their manufacturers slammed with notices of failure to submit a 75-day pre-market NDI notification, likely since most companies have been selling these ingredients and products for 17 years!

Attorney Marc Ullman, of Ullman, Shapiro & Ullman, told Nutraingredients-usa.com that this position on so-called synthetic nutrients is “preposterous, absolute nonsense” and with “no basis in science.”

In addition, the safety testing requirements recommended for NDIs go way beyond anything that could be reasonably required for herbal ingredients and nutrients. These over-the-top standards would be similar to what is required of food additives. It would not provide more safety; it would merely force companies to spend millions on unnecessary tests on ingredients that have been in the food supply for 10,000 years.

According to Ullman in Natural Products Insider, the guidance shows that FDA is taking an “incredibly narrow view of what can be considered a dietary ingredient and an incredibly overbroad view of what would require the submission of an NDI notification.”

What do consumers and retailers need to be aware of regarding this guidance? It is not law, not regulation and not binding . . . however, and this is a biggie . . . it gives a very clear picture of the intent of the FDA to use these side-door and back-door routes to undermine and effectively dismantle DSHEA, the law that protects our right to safe and effective dietary supplements.

If FDA were allowed to interpret the law in this way, it would endanger thousands of products and scores of categories of supplements, extracts and tinctures. The ones that survived would be locked into pre-1994-era processing and manufacturing standards, and innovation would be almost totally blocked, since any new advances used with existing ingredients would require participation in the draconian NDI notification process.

Gormley Take-Away: What do we all need to do? We need to file a comment with the FDA telling them to withdraw this notification as it is an outrageous, and unacceptable, approach to re-classifying hundreds, if not thousands, of safe dietary supplement ingredients. If you agree, let the FDA know that you will not stand for this egregious attempt to roll back the clock on innovation by nearly 20 years, to grievously harm the health food industry and to set the stage for far less choice and for virtually no more cutting edge products going forward.

How DSHEA Was Really Won

By James J. Gormley

DSHEA, the Dietary Supplement Health and Education Act of 1994, is the law which protects our access to dietary supplements and to truthful information about them; it also provides for the quality and safety of supplements.

What led to the passage of this law was a historic grassroots and political battle, a struggle that actually had its roots in the early days of the modern health-food industry.

In 1990, President George H.W. Bush signed into law the Nutrition Labeling and Education Act (NLEA). This legislation was intended to improve nutritional information regarding health claims made for products. The FDA was given the job of implementing the law, but because of its broad wording, the agency began to capitalize on the opportunity to over-regulate safe and beneficial nutritional products.

In 1992, the Health Freedom Act was introduced in the Senate by Sen. Orrin Hatch, along with a similar bill in the House of Representatives, to protect the rights of U.S. citizens to choose safe and effective dietary supplements.

“The basic principle of the Health Freedom Act […] was that supplements aren’t food additives, they aren’t drugs and they need to be defined,” said Loren Israelsen, head of the LDI Group and the United Natural Products Alliance in Salt Lake City in a 2004 interview with Mitchell Clute in Natural Foods Merchandiser (NFM) that ran as a “10 years after DSHEA” anniversary article.

In an April 27th 2009 interview, Israelsen told The Gormley Files that “FDA began using the food additive provisions of the law as a tool to go after dietary supplements FDA did not like. This misuse of the law really ticked off a lot of people (me included).”

“The FDA Commissioner at that time, David Kessler, had commissioned a panel to study the question, ‘What should we do with supplements if we were to start afresh?”, noted Israelsen.

“Initially, FDA refused to make the report public. Ultimately, under pressure they did, and it confirmed our worst fears. Those are a few examples of the long fuse that burned up to 1992 when the first version of DSHEA called ‘The Health Freedom Act’ was introduced.”

The agency took the position that all supplements that did not have what it considered defined nutritional value were unapproved food additives. In this way, said industry attorney Marc Ullman, the FDA was able to keep many herbal supplements from American consumers. The FDA essentially went on an enforcement rampage.

The case that mobilized consumer opinion most against FDA was the Jonathan Wright case. Wright, a physician in Washington state, continued to prescribe L-tryptophan to his patients, knowing that while the U.S. had temporarily issued a ban on its sale as a dietary supplement, it had not explicitly banned its use for medical purposes.

On May 6th 1992, in what is today remembered as the Tahoma Clinic Raid, the FDA stormed Wright’s clinic with armed sheriffs who terrorized patients and seized vitamins, equipment and medical records. “The raid made no sense,” noted Israelsen. “There was no rational explanation. People began to think, ‘Wow, what are they prepared to do to stop us from taking vitamins.’ “

And this legitimate fear began to spread like wildfire across the country.

On the grassroots side, Joe Bassett and the northwest region of the Natural Products Association (or NPA, then NNFA) expanded an early incarnation of Citizens for Health (CFH) in order to mobilize consumers and health-food stores against these threats. Along with Bassett were Jim Golick, Margaret Isely, Bonnie Minsky, Dr. Joan Priestley, Alex Schauss, Craig Winters and others.

The American Botanical Council and the American Herbal Products Association (AHPA) were also important forces from the industry side.

Meanwhile, a dramatic public-service ad (PSA) was developed. In the ad, federal agents equipped in full Special Forces gear, including night vision and weapons, converge on Mel Gibson, in this now-famous cameo, who says, in defense as he holds up a supplement bottle: “Hey. Guys. Guys. It’s only vitamins.”

This call-to-action video (which was produced by noted Los Angeles-based producer/director, Back Home Pictures' Charles Abehsera and funded by an industry task force that included Patrick Mooney of California.-based Super Nutrition) warned consumers that the Federal government is “actually considering classifying most vitamins and other supplements as drugs. The FDA has already conducted raids on doctors’ offices and health food stores. Could raids on individuals be next?”

Near the end of the ad, as Mel Gibson’s character is being arrested, he says in desperation: “Vitamin C, you know, like in oranges?” While the video was a dramatization to be sure, it visualized a nightmarish scenario that was truly only one step away from reality at that time.

Another dramatic, and effective tactic used to educate consumers about the threats posed by the FDA’s efforts was the blackout day that was held.

Bill Crawford, today director of retail publishing programs at New Hope Natural Media, was working at a health-food store before DHSEA was passed.

“I vividly recall our putting on a ‘black out’ day. We got black mesh fabric and covered every product that would not be available for sale if DSHEA did not pass. It was nearly our entire supplement section! Products were available for sale but our staff was telling people why we had this restrictive covering […] and signage […] as well. Tables and chairs were set up for any customers who wanted to write a letter to Congress telling them how important access to dietary supplements was to them.”

Meanwhile, industry champions such as Loren Israelsen, Scott Bass (son of the late Milton Bass), Hal Drexler (of Country Life), Jarrow Rogovin (of Jarrow Formulas) and many others, were devoting considerable resources to the battle for DSHEA up to (and past) the 11th hour.

Although the Democrats had a majority in the House and Senate, indicators were that the party was in danger of losing a number of seats in the 1994 election and the Democratic leadership was not eager to look like bad guys to the millions of Americans who supported the Hatch-Harkin-Richardson Bill (DSHEA).

“Then a miracle happened,” Israelsen told NFM. Over the course of several hours, Senators Hatch, Kennedy, Harkin, Waxman and Congressman Dingell were able to hammer out a compromise bill.

“The bill never went through committee and was never voted on, contrary to popular myth,” said Israelsen in NFM. “It went from a zero, a nothing in the House to being a bill flying through by unanimous consent in the middle of the night. I think the FDA thought this bill would never pass and when it did they couldn’t believe it.”

“DSHEA was crafted in a very specific way to keep supplements within the confines of current food law and statutory interpretation,” Israelsen told The Gormley Files.

“There were a number of reasons this was done. We could have opted to make dietary supplements a separate category from foods and drugs. However, this would have left us with essentially no ‘software or hardware’ to deal with lots of issues for which we needed some framework and existing law.”

Although the story of how DSHEA was truly won is sometimes not told accurately, however, “Those who made a difference know what contributions they made,” noted Alex Schauss.

“They will always find satisfaction in having made a difference that influenced the course of history. Everyone made a difference. That’s the real story that hasn’t been told.”

The Return of L-Tryptophan

By James J. Gormley
In the summer and fall of 1989, there was an epidemic outbreak of eosinophilia-myalgia syndrome (EMS) in the U.S. Symptoms of this heretofore rare disorder included: eosinophilia (high levels of this white blood cell); severe muscle pain; fever as high as 105 degrees F.; weakness; muscle and joint pain; swelling of the arms and legs; rash; shortness of breath; pneumonia; and potentially difficulty talking, memory impairment and trouble concentrating.

This outbreak was associated with L-tryptophan produced by a Japanese pharmaceutical company (Showa Denko K.K.); in fact, according to a 2001 position paper from the U.S. Food and Drug Administration (FDA), “more than 95 percent of the cases of EMS were traced to […] Showa Denko.”

In all, over 1,500 cases of EMS and 37 deaths were associated with this supply of L-tryptophan. Consequently, on November 17, 1989, the FDA and U.S. Centers for Disease Control and Prevention (CDC) issued a nationwide recall of all products containing 100 mg or more of L-tryptophan in a daily dose. That recall was expanded, on March 23, 1990, to all marketed product with certain exceptions, and, on February 19, 1991, was further enlarged to all legal products containing Showa Denko L-tryptophan.

And the Effects on the Category?
I spoke with Steven Bass, CEO of Tarzana-CA-based FTH Nutraceuticals, a maker of vitamins, antioxidants and amino acids, including pharmaceutical-grade Pure L-Tryptophan and Tryptophan Plus B6 and B2, and he had this to say: “The effects that the tryptophan debacle had on the nutritional industry—especially related to amino acids—were devastating. Millions of people who depended on L-tryptophan to boost their serotonin levels, and for other health reasons, were deprived of one of the most important natural supplements. Many had to resort to using side-effect-laden and dependency-creating doctor-prescribed sedatives, antidepressants and other drugs in order to replace the health effects of this nutrient.”

Enter Eli Lilly, the makers of Prozac, who were treated to a cover story in the March 26, 1990, edition of Newsweek magazine, “Prozac: A Breakthrough Drug for Depression,” which came out, coincidentally, only three days after the first expanded FDA recall of all marketed L-tryptophan supplements. Prozac quickly became the drug maker’s fastest rising star in 1989, contributing to windfall company profits of 22.5 percent on overall drug sales of $4.18 billion that year.

A Dalí-esque Regulatory Limbo
Despite the fact that U.S.-manufactured L-tryptophan has actually been continually available for sale, statements and testimony by FDA injected confusion early on into the then already unclear regulatory status of this supplement.

In fact, on July 18, 1991, Douglas Archer, Ph.D., then deputy director of the FDA’s Center for Food Safety and Applied Nutrition (CFSAN), said, in testimony before the House of Representatives: “These approved uses [medical and infant formula applications], however, do not allow marketing of LT as a component of a dietary supplement.”

That’s interesting since, in a letter to me dated October 24, FDA spokesperson Arthur Whitmore, who’s with FDA’s office of food safety, defense and outreach wrote, quite clearly: “The agency has not concluded that any particular product is adulterated under the Act; therefore the FDA has taken no steps to limit the availability of dietary supplements containing L-tryptophan produced in the U.S.”

He added: “While we are unaware of conclusive scientific data that would establish that dietary supplement L-tryptophan would be safe, if a firm has information that it believes establishes that a product containing L-tryptophan is safe within the meaning of the Act, it could market such a product as a dietary supplement.”

“In light of the above,” concluded Whitmore, “Import Alert #54-04 was cancelled on April 29, 2005, which means that L-tryptophan intended for use in dietary supplements may be imported into the United States.”

Not only have retailers, manufacturers and suppliers been confused about L-tryptophan’s status, but so has Showa Denko K.K., which discontinued manufacturing and sale of L-tryptophan immediately after the 1989 outbreak. An October 20 note from Sara D. Schotland, of Washington, DC law firm, Cleary Gottlieb Steen & Hamilton LLP—which represents Showa Denko K.K.—noted: “we assume the ban on LT remains in effect.”

“You know, FDA never banned it as such, though several states did,” said Robert Ullman, partner at New York City-based Ullman, Shapiro and Ullman. “Even now, FDA won’t concede that the problem was solely that of a particular manufacturer’s product. At the time, the scope of the liability claims and what would have then been inescapable bad press associated with any attempt to market fully tested product were more than any company was willing to take on.”

A Favored Son of Holistic Practitioners
After the health crisis caused by the bad batch (or batches) from Japan, L-tryptophan stayed on as a continued favorite modality of practitioners and other health providers. It was a supplement that began to occupy a nebulous channel available to health practitioners via a network of progressive (and in many cases courageous) compounding pharmacists.

Julia Ross, M.A., founder of The Recovery Systems Clinic in Mill Valley, CA, and author of The Mood Cure (2002/2003), remembers it this way: “We began using L-tryptophan in 1994, when the compounding pharmacists defied the ban and began supplying it by prescription. We’ve seen over 3,000 clients since then, and a third of whom have used L-tryptophan with benefit.”

Daniel S. Smith, D.C., is the founder of the Alamo Chiropractic Healing Center in Alamo, CA, and president of Genesa Inc., a specialty manufacturer of the Total Amino Solution™ product which includes L-tryptophan and was, according to Smith, just picked up by Whole Foods Market in September.

A big believer in L-tryptophan, Smith said: “At the time L-tryptophan was taken off the market in 1989 I was not using nutritional support in my chiropractic office. The exciting thing, for me, was in 1999, when I discovered the effects of L-tryptophan in myself and my patients, this opened the door for me to really understand the importance of nutritional support as a primary recommendation in my chiropractic service.”

What About L-Tryptophan Today?
“The story of L-tryptophan,” said Marc Ullman, partner at New York City-based Ullman, Shapiro and Ullman, “is a story of the disappearance (and re-appearance) of a beneficial, well-liked ingredient from the marketplace due to a combination of regulatory concerns and marketplace overreaction.”

Marc Ullman added: “It’s a marketplace decision to undertake, or not undertake, the necessary effort to rehabilitate an ingredient, or product, in consumers’ minds.”

That being said, L-tryptophan products are once again being sold as dietary supplements in the U.S.; it seems that they have been rediscovered.

Source Naturals (Scotts Valley, CA) uses FTH Nutraceuticals’ raw ingredient L-tryptophan for its L-tryptophan dietary supplement. In addition, San Clemente, CA-based Doctor’s Best has recently come out with its Best Tryptophan with vitamin B6 & niacinamide. There are also a variety of online sources with product of, in some cases, unclear sourcing provenance, that are best for retailers to avoid.

What is L-tryptophan used for today? “L-tryptophan is commonly used for mood elevation; nervousness, premenstrual syndrome (PMS), jet lag, depression, chemical withdrawal and dieting (since it helps to reduce carbohydrate cravings),” added FTH’s Bass. “What most people don’t realize is that even during the time that it was not available (due to the one bad batch from Japan) it was still added to all baby formula manufactured in the U.S.”

“As consumers become educated about the importance of L-tryptophan and its vital role as it relates to the neurotransmitter, serotonin, I believe that they will want to use it daily as part of their wellness supplementation,” added Dr. Smith.

“The demand for L-tryptophan is increasing dramatically,” observed Bass, “which is one reason why we’re happy to be the largest distributor of L-tryptophan in the U.S.”

[Adapted from an article by James Gormley that was originally published in Vitamin Retailer magazine in December 2006]