The Indefensible Dietary Supplement Health and Education Act

The death of 23-year-old Baltimore Orioles pitcher Steve Bechler, while obviously tragic, is bringing increased scrutiny to the almost comically lax federal laws relating to over-the-counter “natural remedies” that are, unfortunately, readily available in supermarkets, drugstores, and health food outlets across the country. It’s about time.

The Washington Post published an important editorial today that will hopefully be read by lawmakers and staffers on the Hill. Building off the Bechler death and apparent use of ephedra, a supplement intended to “boost” workouts, the Post notes that “federal authorities are severely limited in how quickly they can move to protect consumers” from dangerous natural remedies, or so-called “dietary supplements,” even after officials believe on-the-shelf products pose health risks to the public. The Post also explains that the manufacturers of these often-dangerous products are “under no obligation to track or report health problems.”

Consumers who find these “supplements” on store shelves could be forgiven for thinking the product must be safe. After all, one might assume there must be government regulation of these pills and/or strict guidelines in place before the pills are put on the market.

These assumptions are completely, and often tragically, wrong. The problem stems from the 1994 Dietary Supplement Health and Education Act (or DSHEA), championed by Sen. Orrin Hatch (R-Utah). As Stephanie Mencimer explained in her must-read classic, “Scorin’ With Orrin” from the September 2001 Washington Monthly, the law, sometimes called the Hatch Act, “has left Americans ‘free’ to serve as guinea pigs for a multibillion-dollar industry, much of which is built on a foundation of fraudulent claims, pyramid schemes, and lousy manufacturing practices.”

If this were simply about customers being fooled into thinking some sugar pill will help them burn fat while watching TV, it would still be a multi-million dollar fraud on the public. Regrettably, it’s far, far worse.

As Mencimer wrote, “Since DSHEA became law, substances as varied as paint stripper, bat shit, toad venom, and lamb placenta have all been imported from overseas, bottled up—often by people with no scientific or health backgrounds—and marketed as dietary supplements to unsuspecting American consumers. Many supplements have been tainted with salmonella, arsenic, lead, pesticides, unapproved foreign prescription drugs, as well as garden-variety carcinogens. And despite their New-Age health aura, a significant portion of these ‘natural supplements’ are stimulants, depressants, and other mood-enhancers that some medical experts believe would be classified as drugs if they were synthetic. A surprising number of these products are addictive. Thanks to Hatch, the U.S. now has standards as low as those in many Third World countries for the sale of many products with serious, pharmacological effects.”

Consider the ephedra found in Bechler’s locker after his death. While marketed as an “herbal stimulant” that can help people loose weight and enhance exercise, ephedra is actually a “chemical cousin” of methamphetamine, as the Post calls it. Not only has it been banned by the U.S. military, but Health and Human Services Secretary Tommy G. Thompson recently asked, “I wouldn’t use it, would you?”

Unfortunately, Thompson’s rhetorical question doesn’t appear on the label. Unsuspecting customers have no way of knowing that the FDA implicated ephedra in at least 80 deaths and 1,400 cases of serious illness, including arrhythmia, hypertension, heart attacks, seizures, and strokes between 1994 and 2000.

Hatch’s DSHEA ties the government’s hands by shifting the burden of proof from manufacturers to regulators. In short, DSHEA doesn’t require manufacturers to prove their product is safe before putting the pills on store shelves, it requires the FDA to prove the product is unsafe. Worse, while drug manufacturers are required to record and report adverse reactions effecting consumers taking their medication, Hatch’s DSHEA frees makers of these “dietary supplements” from this “burden.”

This has been a Carpetbagger cause for years, but it has not yet captured the attention of the media or lawmakers. Then again, it may have come to the attention of many lawmakers, but the supplement industry — which generates over $17 billion a year and lavishes millions on campaign contributions for its political allies — is able to squelch changes to the law. One of these days, though, the curtain will be lifted on this scam and millions will wonder why we didn’t do something sooner.