[House Hearing, 110 Congress] [From the U.S. Government Publishing Office] SCIENCE AND MISSION AT RISK: FDA'S SELF-ASSESSMENT ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE COMMITTEE ON ENERGY AND COMMERCE HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION ---------- JANUARY 29, 2008 ---------- Serial No. 110-83 Printed for the use of the Committee on Energy and Commerce energycommerce.house.gov SCIENCE AND MISSION AT RISK: FDA'S SELF-ASSESSMENT ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE COMMITTEE ON ENERGY AND COMMERCE HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION __________ JANUARY 29, 2008 __________ Serial No. 110-83 Printed for the use of the Committee on Energy and Commerce energycommerce.house.gov U.S. GOVERNMENT PRINTING OFFICE 47-433 PDF WASHINGTON : 2008 ---------------------------------------------------------------------- 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) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON ENERGY AND COMMERCE JOHN D. DINGELL, Michigan, Chairman HENRY A. WAXMAN, California JOE BARTON, Texas EDWARD J. MARKEY, Massachusetts Ranking Member RICK BOUCHER, Virginia RALPH M. HALL, Texas EDOLPHUS TOWNS, New York FRED UPTON, Michigan FRANK PALLONE, Jr., New Jersey CLIFF STEARNS, Florida BART GORDON, Tennessee NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois ED WHITFIELD, Kentucky ANNA G. ESHOO, California BARBARA CUBIN, Wyoming BART STUPAK, Michigan JOHN SHIMKUS, Illinois ELIOT L. ENGEL, New York HEATHER WILSON, New Mexico ALBERT R. WYNN, Maryland JOHN B. SHADEGG, Arizona GENE GREEN, Texas CHARLES W. ``CHIP'' PICKERING, DIANA DeGETTE, Colorado Mississippi Vice Chairman VITO FOSSELLA, New York LOIS CAPPS, California STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania GEORGE RADANOVICH, California JANE HARMAN, California JOSEPH R. PITTS, Pennsylvania TOM ALLEN, Maine MARY BONO, California JAN SCHAKOWSKY, Illinois GREG WALDEN, Oregon HILDA L. SOLIS, California LEE TERRY, Nebraska CHARLES A. GONZALEZ, Texas MIKE FERGUSON, New Jersey JAY INSLEE, Washington MIKE ROGERS, Michigan TAMMY BALDWIN, Wisconsin SUE WILKINS MYRICK, North Carolina MIKE ROSS, Arkansas JOHN SULLIVAN, Oklahoma DARLENE HOOLEY, Oregon TIM MURPHY, Pennsylvania ANTHONY D. WEINER, New York MICHAEL C. BURGESS, Texas JIM MATHESON, Utah MARSHA BLACKBURN, Tennessee G.K. BUTTERFIELD, North Carolina CHARLIE MELANCON, Louisiana JOHN BARROW, Georgia BARON P. HILL, Indiana ______ Professional Staff Dennis B. Fitzgibbons, Chief of Staff Gregg A. Rothschild, Chief Counsel Sharon E. Davis, Chief Clerk David L. Cavicke, Minority Staff Director7 Subcommittee on Oversight and Investigations BART STUPAK, Michigan, Chairman DIANA DeGETTE, Colorado ED WHITFIELD, Kentucky CHARLIE MELANCON, Louisiana Ranking Member Vice Chairman GREG WALDEN, Oregon HENRY A. WAXMAN, California MIKE FERGUSON, New Jersey GENE GREEN, Texas TIM MURPHY, Pennsylvania MIKE DOYLE, Pennsylvania MICHAEL C. BURGESS, Texas JAN SCHAKOWSKY, Illinois MARSHA BLACKBURN, Tennessee JAY INSLEE, Washington JOE BARTON, Texas (ex officio) JOHN D. DINGELL, Michigan (ex officio) (ii) C O N T E N T S ---------- Page Hon. Bart Stupak, a Representative in Congress from the State of Michigan, opening statement.................................... 1 Hon. John Shimkus, a Representative in Congress from the State of Illinois, opening statement.................................... 5 Hon. Jay Inslee, a Representative in Congress from the State of Washington, opening statement.................................. 7 Hon. Joe Barton, a Representative in Congress from the State of Texas, opening statement....................................... 9 Hon. John D. Dingell, a Representative in Congress from the State of Michigan, opening statement................................. 10 Hon. Tim Murphy, a Representative in Congress from the State of Pennsylvania, opening statement................................ 13 Hon. Henry A. Waxman, a Representative in Congress from the State of California, opening statement............................... 14 Hon. Michael C. Burgess, a Representative in Congress from the State of Texas, opening statement.............................. 15 Hon. Gene Green, a Representative in Congress from the State of Texas, opening statement....................................... 17 Hon. Marsha Blackburn, a Representative in Congress from the State of Tennessee, opening statement.......................... 17 Hon. Diana DeGette, a Representative in Congress from the State of Colorado, opening statement................................. 19 Hon. Jan Schakowski, a Representative in Congress from the State of Illinois, prepared statement................................ 188 Witnesses Gail H. Cassell, Ph.D., vice president, Scientific Affairs and Distinguished Lilly Research Scholar for Infectious Diseases, Eli Lilly and Company.......................................... 20 Prepared statement........................................... 23 Answers to submitted questions............................... 203 Peter Barton Hutt, senior cousel, Covington & Burling LLP........ 28 Prepared statement........................................... 30 Catherine E. Woteki, Ph.D., global director of scientific affairs, Mars, Inc............................................. 32 Prepared statement........................................... 34 Garret A. FitzGerald, professor of medicine and professor and chair of pharmacology, Department of pharmacology, University of Pennsylvania School of Medicine............................. 35 Prepared statement........................................... 39 Answers to submitted questions............................... 190 Dale Nordenberg, M.D., managing director, Healthcare Industry Advisory, PriceWaterhouseCoopers............................... 54 Prepared statement........................................... 56 Marcia G. Crosse, Ph.D., Director, Health Care, U.S. Government Accountability Office.......................................... 82 Prepared statement........................................... 85 Lisa Shames, Director, Food and Agricultural Issues, U.S. Government Accountability Office............................... 115 Prepared statement........................................... 117 Donna V. Porter, Ph.D., R.D., specialist in food safety and nutrition, Domestic Social Policy and Nutrition, Domestic Social Policy Division, Congressional Research Service......... 136 Prepared statement........................................... 138 Andrew C. von Eschenbach, M.D., Commissioner, Food and Drug Administration................................................. 150 Prepared statement........................................... 153 Answers to submitted questions............................... 192 Submitted Material Subcommittee exhibit binder...................................... 211 ``Appendix B, The State of Science at the Food and Drug Administration,'' submitted by Peter Barton Hutt............... 417 SCIENCE AND MISSION AT RISK: FDA'S SELF-ASSESSMENT ---------- TUESDAY, JANUARY 29, 2008 House of Representatives, Subcommittee on Oversight and Investigations, Committee on Energy and Commerce, Washington, DC. The subcommittee met, pursuant to call, at 10:00 a.m., in room 2123 of the Rayburn House Office Building, Hon. Bart Stupak (chairman) presiding. Members present: Representatives Stupak, DeGette, Melancon, Waxman, Green, Schakowsky, Inslee, Dingell (ex officio), Shimkus, Walden, Murphy, Burgess, Blackburn and Barton (ex officio). Staff present: Chris Knauer, Keith Barstow, Scott Schloegel, John Sopko, Angela Davis, Kyle Chapman, Alan Slobodin, Peter Spencer, and Whitney Drew. OPENING STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN Mr. Stupak. This meeting will come to order. Today we have a hearing entitled ``Science and Mission At Risk: FDA's Self-Assessment.'' Each member will be recognized for a 5-minute opening statement. I will begin. Since the Federal Food, Drug and Cosmetic Act was first enacted in 1938, the FDA's role in protecting American consumers has expanded considerably. The FDA is now responsible for ensuring the safety of medical devices, human food, animal feed additives, new human and animal drugs, human biological products, the list goes on. Today, no new pharmaceutical product or medical technology can be used in the United States without the FDA first determining that it is safe and effective for its intended use. By some estimates, the agency now regulates more than $1 trillion in consumer products or close to 25 cents of every U.S. dollar spent. Unfortunately, as this committee under both Republican and Democratic leadership has documented, FDA's resources have become wholly inadequate, given the agency's expansive mission. Accordingly, the agency's ability to protect American families from unsafe food, drugs, medical devices and other products has radically deteriorated. Last year's slew of tainted consumer goods and related recalls were the proverbial canary in the coalmine, illustrating the strain under which the FDA now functions. To his credit, in 2006 FDA Commission Andrew von Eschenbach requested the FDA's Science Board, which is his primary advisory group, which is made up of a special subcommittee, to assess whether science and technology at the agency is capable of supporting existing and future regulatory operations. The subcommittee had extensive input from 30 world-class external advisors representing industry, academia and other government agencies. These experts were selected based on their extensive knowledge of cutting-edge research, budget, science and management operations. Their assessments were compiled in a report entitled ``FDA Science and Mission at Risk, Report of the Subcommittee on Science and Technology.'' All 33 advisors and subcommittee members signed off on the findings of this report and was presented to the FDA last month and unanimously accepted by the Science Advisory Board. Today we have the honor and privilege to hear directly from the chair of the Science Board subcommittee as well as from a number of its expert advisors. They will raise a number of concerns regarding FDA's current capability. More directly, they will raise their concern that the FDA's overall mission of protecting public health is at risk. The report's findings are shocking and extensive. Some key concerns include the following. The FDA cannot fulfill its mission because its scientific base has eroded and its scientific organization structure is weak. It does not have the capacity to ensure the safety of the Nation's food supply furthermore. The FDA's ability to provide basic inspections, conduct key rulemaking and carry out enforcement actions are severely eroded as is its ability to respond to food-related outbreaks in a timely manner. During the past 35 years the decrease in FDA funding has forced the agency to impose a 78 percent reduction in food inspections. The FDA cannot fulfill many of its core regulatory functions because its IT infrastructure is obsolete, unstable and inefficient. The agency faces substantial employee recruitment and retention challenges. The agency has insufficient access to clinical data needed for various core missions and thus cannot effectively regulate products based on new science, and this list goes on and on. Alone, each one of these issues would be a daunting task to resolve. Taken together, they suggest much of the FDA's core regulatory mission is at risk. When coupled with the recent findings by the Government Accountability Office (GAO) regarding the agency's effort to inspect food, foreign-made drugs and medical devices, the situation is truly alarming. As pointed out in the GAO report, American lives are now at risk. The findings of this report, however, should come as little surprise to members of this subcommittee. The work we conducted last year provides ample evidence that FDA is increasingly struggling to perform its most rudimentary regulatory mission. For example, the subcommittee held four hearings last year related to how FDA protects Americans against substandard foods. These were prompted because of incidents involving tainted human and pet food and other commodities. FDA's failed regulation of domestic food producers, its ill-conceived plan to close laboratories and reorganize field staff and its inability to ensure the safety of imported foods from China and other foreign markets painted a bleak picture of FDA's ability to protect the Nation's food supply. In addition to our food safety investigations, the subcommittee examined FDA's foreign drug inspection program. The investigation found FDA's IT system for managing drug imports and related inspections was antiquated and disturbingly incapable of providing timely and basic data. Because of resource constraints on field inspectors and related travel, FDA could only inspect about 7 percent of all foreign establishments in any given year. Experts told the subcommittee that foreign drug firms should be inspected at least once every few years but at that rate it would take the FDA 13 years to inspect each foreign establishment for one time. Today GAO will report similar findings relating to FDA's ability to inspect foreign medical device manufacturers. One of the key findings of the Science Advisory Board report is that, and I quote, ``In contrast to previous reviews warned crisis would arise if funding issues were not addressed. Recent events and our findings indicate that some of those crises are now realities and American lives are at risk.'' These observations are troubling and they fit a pattern. FDA is increasingly being asked to do more and more with less and less and many of the agency's tools and resources are stretched to the breaking point and incapable of supporting the agency's mission. I would like to thank the witnesses who will be testifying today. Your work has assisted the committee greatly and we look forward to your continued help and leadership. The committee takes the reports and your findings very, very seriously. The deterioration of the FDA's ability to protect the American people did not happen overnight. This deterioration is like a cancer that has developed over many years under the watch of both Republican and Democratic administrations. This deterioration is also not something that will be changed overnight, but there are many recommendations in the Science Advisory Board report that can be addressed immediately. The FDA and Congress have an opportunity for great leadership. It is my sincere hope that Commissioner von Eschenbach will commit to us that he will not just accept the startling findings and the positive recommendations made by the Science Advisory Board but that he will develop and implement the Science Advisory Board and GAO recommendations to put the agency back on track as the world's premiere agency to safeguard food and drugs. The Commissioner should know that Congress is not willing to throw more money at the problem. We will require a realistic plan with vision and measurable results to ensure the promises made are commitments kept. The Commissioner has taken the first step in developing a plan by asking for this report. He has also shown a willingness to listen and learn from our hearings. Just last week he announced that he will implement one of our key recommendations from last fall's hearing on drug imports. The FDA plans to open offices in foreign countries such as China and India where so much of our food and drugs now come from. This is an important small step. With required follow- through and oversight it can be a positive step. I look forward to working with the Commissioner on how he can forge ahead to give the FDA the tools necessary to protect the American public. Our Nation deserves nothing less. [The prepared statement of Mr. Stupak follows:] Statement of Hon. Bart Stupak Since the Federal Food, Drug, and Cosmetic Act was first enacted in 1938, FDA's role in protecting the American consumer has expanded considerably. FDA is now responsible for ensuring the safety of medical devices, human food, animal feed additives, new human and animal drugs, human biological products, and the list goes on. Today, no new pharmaceutical product or medical technology can be used in the U.S. without FDA first determining that it is safe and effective for its intended use. By some estimates, the agency now regulates more than $1 trillion in consumer products or close to 25 cents of every U.S. consumer dollar spent. Unfortunately, as this Committee under both Republican and Democratic leadership has documented, FDA's resources have become woefully inadequate given the agency's expansive mission. Accordingly, the agency's ability to protect American families from unsafe foods, drugs, medical devices, and other products has radically deteriorated. Last year's slew of tainted consumer goods and related recalls was the proverbial canary-in-the-coal-mine illustrating the strain under which the FDA now functions. To his credit, in December 2006, FDA Commissioner Andrew von Eschenbach requested that the FDA Science Board-which is his primary advisory group-form a special subcommittee to assess whether "science and technology" at the agency is capable of supporting existing and future regulatory operations. The subcommittee had extensive input from 30 world class external advisors representing industry, academia, and other government agencies. These experts were selected based on their extensive knowledge of cutting-edge research, budget, science, and management operations. Their assessments were compiled in a report entitled, "FDA Science and Mission at Risk: Report of the Subcommittee on Science and Technology." All 33 advisors and subcommittee members signed off on the findings of this report, which was presented to FDA last month and unanimously accepted by the Science Advisory Board. Today, we have the honor and privilege to hear directly from the Chair of the Science Board's Subcommittee as well as from a number of its expert advisors. They will raise a number of concerns regarding FDA's current capability. More directly, they will raise their concern that the FDA's overall mission of protecting the public's health is at risk. The report's findings are shocking and extensive. Some key concerns include the following:The FDA cannot fulfill its mission because its scientific base has eroded and its scientific organizational structure is weak; The FDA does not have the capacity to ensure the safety of the Nation's food supply; The FDA's ability to provide basic inspections, conduct key rulemakings, and carry out enforcement actions are severely eroded, as is its ability to respond to food-related outbreaks in a timely manner; During the past 35 years, the decrease in FDA funding has forced the agency to impose a 78 percent reduction in food inspections; The FDA cannot fulfill many of its core regulatory functions because its IT infrastructure is obsolete, unstable, and inefficient; The agency faces substantial employee recruitment and retention challenges; The agency has insufficient access to critical data needed for various core missions and thus cannot effectively regulate products based on new science; And the list goes on. Alone, each of these issues would be a daunting task to resolve. Taken together, they suggest much of FDA's core regulatory mission is at risk. When coupled with the recent findings by the Government Accountability Office (GAO) regarding the agency's effort to inspect food, foreign-made drugs, and medical devices, the situation is truly alarming. As pointed out in the GAOreport, "American lives are now at risk." The findings of this report, however, should come as little surprise to Members of this Subcommittee. The work we conducted last year provides ample evidence that FDA is increasingly struggling to perform its most rudimentary regulatory missions. For example, the Subcommittee held four hearings related to how FDA protects Americans against substandard foods. These were prompted because of incidents involving tainted human and pet food and other commodities. FDA's failed regulation of domestic food producers, its ill-conceived plan to close laboratories and reorganize field staff, and its inability to ensure the safety of imported foods from China and other foreign markets, painted a bleak picture of FDA's ability to protect the Nation's food supply. In addition to our food safety investigations, the Subcommittee examined FDA's foreign drug inspection program. That investigation found FDA's IT system for managing drug imports and related inspections was antiquated and disturbingly incapable of providing timely and basic data. Because of resource constraints on field inspectors and related travel, FDA could only inspect about 7 percent of all foreign establishments in any given year. Experts told the Subcommittee that foreign drug firms should be inspected at least once every few years, but at that rate it would take FDA 13 years to inspect each foreign establishment a single time. Today, GAO will report similar findings relating to FDA's ability to inspect foreign medical device manufacturers. One of the key findings in the Science Advisory Board's report is that "In contrast to previous reviews that warned crises would arise if funding issues were not addressed, recent events and our findings indicate that some of those crises are now realities and American lives are at risk." These observations are troubling and they fit a pattern: FDA is increasingly being asked to do more and more with less and less and many of the agency's tools and resources are stretched to the breaking point and incapable of supporting the agency's mission. I would like to thank the witnesses who will be testifying today. Your work has assisted this Committee greatly, and we look forward to your continued help and leadership. The Committee takes the report's findings very seriously. The deterioration of the FDA's ability to protect the American people did not happen over night. This deterioration is a cancer that has developed over many years, under the watch of both Republican and Democratic Administrations. This deterioration is also not something that will be changed over night, but there are many recommendations in the Science Advisory Board's report that can be addressed immediately. The FDA - and Congress - have an opportunity for great leadership. It is my sincere hope that Commissioner von Eschenbach will commit to us that he will not just accept the startling findings and the positive recommendations made by the Science Advisory Board, but he will develop and implement the Science Board and GAO's recommendations to put the agency back on track as the world's premier agency to safeguard food and drugs. The Commissioner should know, that Congress is not willing to just throw more money at the problem. We will require a realistic plan with vision and measurable results to ensure the promises made are commitments kept. The Commissioner has taken the first step in developing a plan by asking for this report. He has also shown a willingness to listen and learn from our hearings. Just last week he announced that he will implement one of our key recommendations from last fall's hearing on drug imports. The FDA plans to open offices in foreign countries such as China and India, where so much of our food and drugs now come from. This is an important small step - with required follow through - and oversight. I look forward to working with the Commissioner on how we can forge ahead to give the FDA the tools necessary to protect the American public. Our Nation deserves nothing less. ---------- Mr. Stupak. I would next turn to my friend, the ranking member, Mr. Shimkus from Illinois, for an opening statement, please. OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS Mr. Shimkus. Thank you, Mr. Chairman. Today's hearing will focus on the findings and recommendations by the special subcommittee of the Food and Drug Administration's Science Advisory Board, which sought to review the state of science at the FDA, and I appreciate your attendance and your work. As we will hear this morning from some of the report's distinguished authors, the ability of the agency to carry out its various missions to protect the public health has severely deteriorated over the past 2 decades. This has occurred because more has been asked and required of the agency over the years without the requisite resources provided to do the job. As we will hear, the report does not paint a pretty picture. This report makes the case for strengthening the FDA in very sobering language. We will hear about obsolete information networks, failures of planning, the draining of science talent, loss of key managers, and that Congress has enacted more than 100 statutes with little added funding. These findings are troubling but not surprising. We know from this subcommittee's own investigation that there are serious shortcomings in FDA's ability to manage and confront 21st century challenges in food and drug safety. In the hearing today, I believe we should be careful as we react to the testimony to focus on what we need to understand. If we are serious about making progress on resources, we will need strong bipartisan support. Such support was behind the budget increases for the Centers for Disease Control and the National Institutes of Health. We should resist taking shots at the Administration or the Commissioner. The FDA's problems are longstanding and can be traced to both political parties. It would be very tempting to pile on the negative findings so much that we create an image in the public's mind of an agency that cannot be fixed. That burning down the village to save it approach won't work. The more we do that, the harder it will be to make a case down the road that more resources here and more scientists there can actually fix the problem. Our job will be to build evidence for areas where we can make a bipartisan case and we should focus on that objective. There are a few areas I am hopeful we can examine today. First, I understand the Science Board report provided an outline for a strategy to restore FDA capabilities in a number of areas. I would like a clear understanding of some of those structural fixes that had been proposed and how these will contribute to the agency's mission, and where possible, I would like to know what would be the absolute top priorities. I would like to understand how the board's strategy dovetails with the Commissioner's own strategy for focusing the agency on current and future risk. How will the two work together and what measures or indicators can we expect that will help us see how important gaps can be filled? Second, we have to be wary of the bureaucratic imperative to expand into areas beyond the agency's basic mission. Bureaucracies such as the FDA tend to want to expand their turf through more regulation and litigation. Thus, some additional resources wind up diverted for expanding turf, not enhancing basic mission capacity. We have to be very candid about the fact that many problems that this subcommittee has identified raise questions about management of resources and decisionmaking at the agency. As we consider the Science Board's recommendations, we have to reconcile those with our own work. We have to explore how we can develop confidence that money expended will be expended efficiently on the most pressing and essential needs. I would like to hear from the GAO about improving the management culture at the FDA. The subcommittee needs to complete its own diagnosis of the FDA's problems. For example, we know Congress responds to the FDA's needs when the case can be made. After September 11, the Secretary of HHS, Tommy Thompson, made his case to Congress and the Administration for more resources, some 600 FDA inspectors, and we responded. We know now that those inspectors have fallen off the books. How did this happen and why did it happen? Finally, we should also recognize that we have a great opportunity to focus both on the management and structural reforms as well as resources needed. We are fortunate to have Commissioner von Eschenbach here today. He has demonstrated by this report, other actions and even his presence today that he is seeking a way to move this agency into the 21st century. We should support him in this effort, and the challenge today will be to work with each of the panelists to start building the bipartisan case we need to move forward, and I guess in ending, in one year the Commissioner has been here four times and in three of those testimonies he sat through the hearing prior to his testifying. He will do so today. He is in the audience. We appreciate that. That doesn't include the individual staff meetings like yesterday that you have committed to. I do think that does represent goodwill and hopefully we can work together to move forward. Thank you, Mr. Chairman. Mr. Stupak. Thank you, Mr. Shimkus. Mr. Inslee for an opening statement, sir. OPENING STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON Mr. Inslee. Thank you. I want to thank Mr. Stupak for having these hearings, and I want to focus on the problem of medical scams, and this is a problem one would have thought that we had under control in this country after centuries of flimflam artists using people's desperation to their profit. But I was looking at a Seattle Times series about the explosion of the medical scam industry in the United States and it does appear to be not just an aberration but a multinational industry that we are totally not controlling in the United States, and I was flabbergasted to read the stories of what is going on out there using fancy flashing light electronic gizmos to make people think they are being cured and in fact they are being abused by these medical scam artists and it is not a small thing. Just to tell you how tragic it can be, I will just tell the story of one lady named Joan Burgraff, a 58-year-old woman in Tulsa who was having pain and had lost her husband to cancer. She was upset with the medical community, or at least didn't think the medical community could help her. She started to develop pain in her joints so she went to a clinic by a person who had been trained in Seattle using a device called the EPFX and they took this woman in and they strapped her to a chair and put all kinds of official looking electronics on her and plugged into a little box with a bunch of flashing lights and allegedly diagnosed her condition, and the operator later said that the way it worked is, you put the machine in zap mode and they zapped her for some period of time, telling her that they were taking care of her problem. Months and months went by. Finally she became worse and worse, developed terrible, terrible situations, blacking out, tremendous pain. Her son finally convinced her to go to a hospital. They had to transfer her by helicopter to get her to the hospital at that point. And as the story, as you can tell, ended, she had undiagnosed leukemia and died shortly thereafter. Now, we don't know what her course would have been but we do know that it was inhuman to expose this woman to some multi-colored light device that robbed her of any real hope that she really may have had, and I really can't think of a viler thing to do than to use people's desperation, which is going on over and over again in this country. That is the story in Tulsa. A story closer to home, a woman named Karen MacBeth, who is 59, had cancer, terrible pain, looking for some alternative, went to a ``clinic'' in Port Orchard, Washington, using a machine called the EPFX machine. Same thing happened to her. She spent $17,000 out of her life savings. She was told that the treatment could cure cancer. She believed that. Later on the machine turned out to be something that would basically generate random electronic flashing pulses but no relationship to anybody's health, and she later died, having had no effective medical treatment that was delayed because of this scam. Now, I will point out that from this excellent work by the Seattle Times, we find out this is something that is going on all over the country. There is one company with a fellow American who is now avoiding an indictment who is in Budapest that is operating these scams in 22 different countries around the world. This is like a major international corporation, and the fact that the United States of America can't shut it down is really sad. It is kind of pathetic, really, that we know that this is going on on a routine, consistent, repeated basis across this country and we can't shut these people down. So we need to know how we address these mega scams' multinational efforts, how we really look at this honor system which is allowing people to get these machines in being treated as ``biofeedback'' machines and then they are told to the patient that they cure everything from cancer to osteoporosis to you name it, how we are going to get over this problem of using independent review boards, because some of these machines I have talked about, they have gone through a loophole using ``independent review boards'' to treat them as clinical trials while they are really just perpetuating these scams, and how finally we are going to get targeted resources and IT systems into the FDA so that they can finally find out what is even out in the marketplace, and I hope these hearings will be helpful to really get to the bottom of this. It is just incredible that this is going on in the United States and we have got to put a stop to it. Thank you. Mr. Stupak. I thank the gentleman for his time. You are talking about the EPFX machines and they are being used also in Michigan. You are correct in that there is a nine-count warrant against the so-called inventor of these machines for a scam, and the FDA did bring that charge against him. The gentleman has fled to Budapest, Hungary, and the committee is looking at it at your urging, an area we will take a look at. If we have a warrant for the individual that creates the machines, why do we still allow them in the country? It is still beyond me. It is something we will look at. Mr. Barton for opening statement, please. OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS Mr. Barton. Thank you, Mr. Chairman. As most of us know, we are having a hearing in the Health Subcommittee right now about SCHIP, which I have been asking for for almost a year, so I am going to have to go up there some too so I am not being disrespectful to this hearing, but I will come back and shuttle back and forth. Obviously today we are having an important hearing on the future of the FDA. We are going to take a look at the latest study about FDA and its science mission, mission at risk. It was prepared by the Science Advisory Board, Subcommittee on Science and Technology. I don't think it is a big news flash that the report found that the scientific capacity of the FDA is eroding as a result of lack of funding. We have got hearings in this committee as far back as 1955 that says the same thing. From the 1955 hearing, the quote was, ``Adequate accomplishment on this recommendation will not be possible until much larger funds and facilities are made available to the FDA.'' That is over 50 years ago. What is troubling about the latest report is the pessimistic tone almost across the entire report. There doesn't appear to be much positive anywhere, and obviously we can provide more funding. This committee has shown in a bipartisan fashion that we can do that. We just in the last Congress reauthorized and increased the authorization for the National Institutes of Health. It is one of my signature accomplishments as chairman. We are still trying to get the appropriators to follow through on what the authorizing committee has done but if there is a need and there is bipartisan will, we can get some of this stuff done. We shouldn't use this report to beat up on President Bush or Dr. von Eschenbach, who is out in the audience. Today is either the fourth or the fifth time that he has appeared in person before this subcommittee in the last year. I can't recall another FDA commissioner who has been that accessible in a personal way to the subcommittee and the full committee. We know that the problems at the FDA are longstanding. It is my opinion that they are not of a political nature. They are more of a process and just a structural nature. If we are going to get more resources for the FDA, we are going to have to work together and I am sure that Mr. Stupak and Mr. Dingell want to do that. We also know that when the Congress does provide more funds to an agency like the FDA, sometimes the money just disappears. It just goes into bureaucracy and we never see it again. For example, 6 years ago after 9/11 and the anthrax attacks, Health and Human Services Secretary Tommy Thompson came before the committee and the Congress and asked for more than 600 new FDA inspectors at the border. We gave him the money, he got the inspectors. Five years later the inspectors are gone. What happened? As the FDA continues to struggle to meet its responsibilities in this 21st century, we need to make sure that their struggles are not simply a result of a bureaucracy that takes money and swallows it up and we never see it again. I am very pleased that we are going to have a panel of experts before us today. I am sure that they are going to be frank and I am sure that they are going to give us honest answers about what they think is really the problem. As I have said, I am also pleased that Commissioner von Eschenbach is here. He is going to have a long day today. The usual practice is for a presidential appointee to go first and then to clear out. Dr. von Eschenbach is going to sit here and listen to the experts so that when he appears before us this afternoon, he will have had the comfort of hearing what the folks before him had to say. So Mr. Chairman, I am glad that we are having the hearing. I am going to be going back and forth but obviously we want an FDA that is up to snuff on the science mission so that it can do all of its missions also. Thank you. Mr. Stupak. Thank you, Mr. Barton. I would also note that there is a Telecommunications and Internet Subcommittee hearing also going on today so Mr. Dingell has three different hearings going at once. It keeps us all busy, and I know members will pay attention to their assignments but we will be shuffling back and forth all day. With that, let me yield to Mr. Dingell, chairman of the full committee, for an opening statement, please, sir. OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN Mr. Dingell. Mr. Chairman, thank you for the recognition. I want to begin by commending you for today's hearing and for your fine leadership of this very, very important subcommittee, and I want to say a word about my friend, Mr. Barton, and I want to express to him my appreciation of his leadership, cooperation and ability and the fact that he and I continue our ability to work together on matters affecting the public interest, and with that expression of respect and affection, I want him to know my appreciation for him and his service. Mr. Chairman, I also want to commend our panel on which I will comment a little later. As you stated earlier, Mr. Chairman, the Food and Drug Administration is responsible for ensuring the safety of nearly $1 trillion of products used by Americans every day from medical devices to foods to pharmaceuticals and even pet foods and foods which are manufactured and products which are manufactured in this country and around the world. Each of us probably uses a product or many products each day that has been reviewed, studied or regulated by FDA, or perhaps not regulated by FDA as it should for want of resources and ability or personnel to carry out its responsibilities. Yet today we will hear more bad news concerning the safety of these products. This morning the Congress and the American people will hear again from a panel of world-renown industry and academic experts who were directed by the Commissioner, Dr. von Eschenbach, to review the state of FDA. I believe this committee upon conclusion of its considerations will find that they aren't doing at FDA as well as they could or should. The report includes many troublesome findings about the FDA but mostly it concludes that the agency's mission is now at risk, an important conclusion, and it means that the health and safety of Americans are at risk as well. The Congress, the Food and Drug Administration Commissioner and the Administration must now focus on these situations and find solutions quickly. In December 2006, the Commissioner of FDA requested the Science Board to form a special subcommittee to assess whether science and technology at the agency is capable of supporting existing and future regulatory operations, and it is into this which we will be inquiring today. This subcommittee had extensive input from 30 external advisors representing industry, academia and other government agencies. These experts were chosen based on their extensive knowledge of cutting-edge research, budget, science and management operations. Their report is one of the most extensive reviews of FDA that I have seen and I believe we must pay close attention to what these experts found. I think that the Nation owes great gratitude to those who helped compile the report, particularly those who will testify today, and I express to them my personal appreciation and that of the committee. Each of them committed substantial personal time to complete this report. The report is straightforward with findings that are difficult to face or to deny. I will note that the practical effect upon each of them is that they had served 2 years without pay in carrying forward this important public responsibility. Their testimonies along with the Government Accountability Office witnesses and the Congressional Research Service will describe FDA as an agency that is struggling to keep the Nation's food and drug supply safe and effective. Specifically, they are going to describe FDA's difficulties in inspecting foreign-manufactured drugs and medical devices that are sold in the United States, something which threatens to us a very real possibility of a significant calamity befalling our people, FDA's faltering ability to enforce its own regulations and to conduct rulemaking, FDA's substantially diminished capacity to inspect food production facilities, whether farms or processing plants, FDA's inadequate IT infrastructure that is antiquated, unstable and incapable of supporting key agency missions and finally, FDA's lack of human and technological resources and its effect on its scientific and regulatory responsibilities and capabilities. I would note that I have not found enough concern in this report about the number of personnel, the training and the adequacy of the personnel, the support facilities which they have or the budget of the agency which would enable to carry out its responsibility, and those are matters into which this committee will be going with rather more diligence. Sadly, Mr. Chairman, most of these findings are not new to this committee. This subcommittee had more than five hearings alone last year documenting these persistent problems confronting FDA. Our constituents are growing weary of these events. They are losing confidence in the ability of the agency to protect them from products they use daily. And I would point out that this problem of the inadequacies of the agency is not new. I have had telephone calls with commissioners of FDA over the years in which they said oh, we are going to be leaner and meaner, oh, we are going to do more with less, and I have always had to observe that on the basis of my experience, they are capable only of doing much less with the much less which they are being given, something about which we can properly express great dissatisfaction. I want to commend the Commissioner for requesting this review and I look forward to his testimony about proposals to fix the agency. FDA, HHS and the Administration must address these failures and vigorously and work with the Congress to develop a real plan to strengthen FDA and to assure its ability to carry out the critical mission of FDA for the people of this Nation. But to assist the Congress in this and to work with us to achieve a proper solution to the problem, we are going to have to expect that FDA will be honest with themselves and that the FDA will be honest with us about budget, personnel, capabilities in terms of support facilities like the laboratories which they have been trying under Administration direction to close, and unless we have an honest appraisal of these matters, I have serious doubts that FDA is going to be able to be resurrected in any fashion that will satisfy either the agency or this committee. I thank you, Mr. Chairman. [The prepared statement of Mr. Dingell follows:] Statement of Hon. John D. Dingell Mr. Chairman, I commend you for holding today's hearing. As you stated earlier, the Food and Drug Administration (FDA) is now responsible for ensuring the safety of nearly a trillion dollars of products used by Americans every day. From medical devices, to food, to pharmaceuticals, and even pet food, each of us probably uses a product everyday that has been reviewed, studied, or regulated by the FDA. Yet today, we will hear more bad news concerning the safety of these products. This morning, Congress and the American people will hear for the first time from a panel of world- renowned industry and academic experts who were directed by Commissioner Von Eschenbach to review the state of FDA. Their report includes many troubling findings about FDA, but most importantly, it concludes that the agency's mission is now at risk, which means the health and safety of Americans are at risk, as well. The Congress, the Food and Drug Commissioner, and the Administration must focus on these findings and find solutions quickly. In December 2006, the FDA Commissioner requested that his Science Board form a special subcommittee to assess whether "science and technology" at the agency is capable of supporting existing and future regulatory operations. This subcommittee had extensive input from 30 external advisors representing industry, academia, and other government agencies. These experts were chosen based on their extensive knowledge of cutting-edge research, budget, science, and management operations. Their report is one of the most extensive reviews of FDA that I have seen, and we ought pay close attention to what these experts found. Mr. Chairman, I think that the Nation owes gratitude to those who helped compile this report, and particularly to those who will testify today. Each of them committed substantial personal time to complete this report. The report is straightforward with findings that are difficult to face. Their testimony, along with witnesses for the Government Accountability Office and Congressional Research Service, will describe an FDA that is struggling to keep the Nation's food and drug supply safe and effective. Specifically, they will describe: FDA's difficulties in inspecting the foreign manufacture of drugs and medical devices that are sold in the United States; FDA's faltering ability to enforce its own regulations and conduct rulemaking; FDA's substantially diminished capacity to inspect food production facilities, whether farms or processing plants; FDA's inadequate IT infrastructure that is antiquated, unstable, and incapable of supporting key agency missions; and finally FDA's lack of human and technological resources and its effect on its scientific capabilities. Sadly, Mr. Chairman, many of these findings are not new to this Committee. This Subcommittee had more than five hearings alone last year documenting these persistent problems confronting FDA. Our constituents are growing weary of these events. They are losing confidence in this agency's ability to protect them from the products they use daily. I commend the Commissioner for requesting this review and I look forward to his testimony about his proposals to fix this agency. FDA, HHS, and the Administration must address these failures and work with the Congress to develop a real plan to strengthen FDA and ensure its ability to carry out its critical mission for the people of this Nation. ---------- Mr. Stupak. Thank you, Mr. Dingell. Mr. Murphy for opening statement. OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA Mr. Murphy. Thank you, Mr. Chairman, for holding this important hearing on the FDA, and I would like to thank the witnesses for attending and sharing their expertise with us. I am especially glad to have Dr. Garret FitzGerald from my home State of Pennsylvania present and I look forward to hearing from each of you. We are here today to take a comprehensive look at the FDA, its mission, its resources, and from this we have to determine how to best ensure this agency has both the resources and the authority to do its job. Of course, this topic is not new to this subcommittee. We have spent considerable time examining these issues already. Last year we had four hearings on food safety and last November we closely examined the FDA's role in drug safety. Today our witnesses will respond to and comment on a report recently completed by the Science Board, and this report concludes the following: The FDA cannot fulfill its mission because its scientific base has eroded. It cannot ensure the safety of food supply because too few inspections and a lack of timely enforcement cripple our ability to respond to outbreaks. While food imports have increased over the past 35 years, the FDA has experienced a 78 percent reduction in food inspections, and its IT infrastructure is obsolete and unstable. I am most concerned that this report does little to ease my fear that the FDA does not do enough to protect our food and drug supply. During a hearing this subcommittee held on November 1, 2007, I asked the witnesses if they would allow their children to take prescription drugs knowing they contained active ingredients imported from China. All the witnesses seemed to reluctantly answer but said yes, yet we know that China has over 700 firms importing drug products into this country and yet the FDA only conducted 15 inspections. While I am concerned we must do more, I know we have the capacity to responsibly expand the FDA and help it. Recently we have been successful in expanding the NIH and the CDC. We need to take a similar approach to the FDA but also help make sure it has the tools to be efficient and remove bureaucratic barriers. The FDA is under pressure to be scientifically thorough, swift in their reviews and getting the needed drugs to market and absolute in their inspections. They are criticized for being too slow or too fast. It seems sometimes they are criticized for being too superficial or too obsessive. Where they are working to improve food and drug safety, we want them to be a source of excellence but where bureaucracy stands in the way, we cannot understand why we can't get rid of that. During my time in Congress, I remember hearing about the fact that there are about a dozen different agencies that administer as many as 35 laws that make up the Federal food safety program. No single agency oversees them all. This is a nonsensical and fragmented system which as far as I know still has this strange division wherein the Department of Agriculture inspects open-faced meat sandwiches and frozen pepperoni pizzas while the FDA inspects close-faced sandwiches and cheese pizzas. I think we can fix that problem, can't we? I don't know what other kind of changes that we will hear from the FDA but I am looking forward to hearing any ideas that will improve the efficiency of this agency so it is not just a matter of putting more money into but it is a matter of giving the tools they need to become better and faster and more thorough. I look forward to the testimony of today's witnesses, and I yield back. Mr. Stupak. I thank the gentleman. Mr. Melancon, I understand you are going to waive your opening and therefore I go to Mr. Waxman for an opening statement, please. OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. Waxman. Thank you very much, Mr. Chairman. I don't know how much more evidence we need to realize that FDA is in a crisis. Our choice really is clear. Either we are going to make sure this agency has the ability with the resources necessary to do its job or we are going to watch it continue to deteriorate. We have had a number of outside reports. We are now going to hear about the Science Board report from within FDA itself. The Institute of Medicine and the Government Accountability Office both documented the chronic underfunding of the agency and we know what that has meant as we have seen illnesses and even deaths associated with unsafe foods, drugs and medical devices. This is concerning in and of itself but it has also made us acutely aware of the bare thread by which FDA now hangs and of just how close we are to a large-scale catastrophe. The Science Board has done an outstanding job. They have highlighted the erosion of FDA's scientific capacity that has left it unable to fulfill the frightening number of critical regulatory and public health responsibilities. FDA, they say, lacks the staff, the IT infrastructure to conduct appropriate inspections of drugs and medical device manufacturers, to oversee the ever-increasing number of imported products entering the country and to protect against tainted and unsafe foods, just to name a few. While, as the Science Board indicated, we know that there are dedicated and hardworking FDA staff to thank for the fact that we have avoided more catastrophes with our food, drugs and medical devices, we can't expect them to remain working under these grueling conditions for long. We need in order to fix this situation the best information from the Administration on how much funding FDA needs to resume its position as the gold standard for the rest of the world, and I was disturbed that when the FDA asked its science committee to make recommendations, that is one area where they asked them not to make recommendations, not to spell out how much money they may need to fulfill their responsibility. I hope that is not an indication of what we are going to see when we get the President's fiscal year 2009 budget. The Science Board report very clearly lays out the problems with which the agency is grappling. It should be seized upon by this Administration to make its case for why FDA needs more resources. We absolutely must have accurate and specific numbers that reflect the urgency of the Science Board's findings. I thank you, Chairman Stupak, for holding this critically important hearing. I hope the Science Board report will be the last report we have to read about the desperation at the Food and Drug Administration. I want to yield back my time and tell you I am looking forward to the testimony of the witnesses. Unfortunately, there are two other hearings at the same time that I will also be trying to attend so I won't be here personally to hear every statement by the witnesses but I thank you for being here and I assume we will have a chance to review your testimony. Mr. Stupak. Thank you, Mr. Waxman. Mr. Burgess for opening statement, please. OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS Mr. Burgess. Thank you, Mr. Chairman, and I also am going to thank you for holding this hearing. It is a shame that there are so many hearings going on at the same time. This is an important subject but there are important subjects going on across the hall, which is why you see so many of us come in and out. Over the past year this subcommittee has undertaken a serious investigation regarding the safety of the Nation's food supply, and I thank the leaders of this committee on both sides of the dais for their leadership and their dedication to this important issue. I would also like to thank the leadership of the FDA, Commissioner von Eschenbach, for his personal mission to increase safety in his own Federal agency. Although many problems have been apparent for decades, it was Commissioner von Eschenbach who in December of 2006 requested the detailed self-assessment from the Science Board. Specifically, the board was asked with the duty to assess whether the science and technology of the agency is capable of supporting the existing and future regulatory operations. It is a large task. Both the FDA Commissioner and the members of the Science Board subcommittee dutifully undertook this task and I thank everyone involved for working so hard on this vital mission. The report we have before us today is very candid and reveals many things that we might not have wanted to admit. The first two major findings are extremely telling and frankly somewhat disturbing. Finding number 1: The FDA cannot fulfill its mission because its scientific base has eroded and its scientific organizational structure is weak, and specifically in the report it cites the staff and the information technology resources for its surveillance mission. Finding number 2: The Food and Drug Administration cannot fulfill its mission because its subcommittee workforce does not have sufficient capacity and capability, and again, they cite recruitment and retention challenges. Considering that the FDA is responsible for almost 80 percent of the food we eat and regulates 25 cents out of every dollar spent in this country, these two findings should trouble not only everyone in the room but everyone in the United States. As we all know, our committee is responsible for passing legislation that helps to solve all sorts of ailments in the society: problems with food, prescription drugs, imported products, just to name a few. However, as I learned in my practice in medicine for 25 years, the only way to truly fix a patient's ailments is to make certain that the entire system was healthy. If a patient presents with an acute febrile illness because of bacterial pneumonia, he might be transiently helped with an aspirin but if you don't treat the underlying infection, you are not really doing the patient any good. Commissioner von Eschenbach and the Science Board subcommittee are to be commended for their actions of trying to make the entire system healthy but also we understand there is some disagreement and confusion as to whether or not this report is final. After reviewing the findings, it seems hard to believe that this report can be anything but final, and I hope some of these questions are resolved today as regards to the finality of the report. We all know the issue of increased resources will be a common theme today. We heard Ranking Member Barton address just his fact but he also referenced the work that was done by this committee on the National Institutes of Health reauthorization and we authorized a 5 percent increase in funding for the National Institutes of Health for the next 5 years. We were criticized because that wasn't a large enough investment in science and research in this country, and yet when a different party was in power this last summer and we had the opportunity to appropriate money for the National Institutes of Health, what did we do? We bumped it up 2 percent, not the 5 percent that was authorized. So clearly there is a disconnect between what happens at the level of this committee where we set the funding levels and at the level of the Appropriations Committee, and Mr. Chairman, I hope we are dutifully observant when we go through the budgetary and appropriations process that is just before us in the next few months to ensure that what we decide as far as the FDA's authorized budget limit is in fact met and funded when the appropriators meet later on in the year. There is no doubt in my mind that an increase in resources is needed at the Food and Drug Administration but the resources obviously have to be invested wisely. We all know putting a band-aid on a broken arm, although it is a therapeutic agent, is not going to result in the desired cure. Our efforts will again fall short and the American people are the ones who will pay the price. Thank you, Mr. Chairman, and I will yield back. Mr. Stupak. Thank you, Mr. Burgess. Mr. Green for an opening statement, please. OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS Mr. Green. Thank you, Mr. Chairman, for holding the hearing today on the FDA's recent self-assessment. When the Food, Drug and Cosmetic Act was passed in 1938, the FDA was a small agency with a relatively manageable task of ensuring compliance in regulatory issues. Today, no new pharmaceutical products or medical technologies can be used without FDA approval. Also, over the years the role of FDA has been expanded to review the safety of human food, animal feed, additives, new human and animal drugs and human biological products. The role of FDA is vitally important to the economic health of the United States. It is estimated the agency regulated more than $1 trillion in consumer products. However, while the number of products the FDA regulates grows, the budget of the FDA has been under considerable constraints. Last year incidences of tainted consumer products including spinach, peanut butter and pet food called attention to the FDA and their failure to ensure the safety of these products. Subsequent hearings on these issues by this committee revealed many of the issues including the inability to ensure the food safety of products from China and other countries. What deeply concerns me is, I represent the Port of Houston, which is the busiest port in the United States in terms of foreign tonnage, second busiest in the United States in terms of overall tonnage, and the tenth busiest in the world. Many of the products that are imported through the Port of Houston arrive from these countries whether it is China, Mexico, Latin America or anywhere in the world but an FDA inspection lab is not located anywhere near the port or not even in Texas. I have met with FDA inspectors at the Port of Houston but we need more resources to test and inspect these products. This report outlines a number of scientific operational resource and technology concerns the FDA is currently facing. It gives us a clearer picture of the ability of the FDA to support its necessary regulatory functions. Unfortunately, the picture painted by this report is bleak. The time to act on the recommendations is now and I hope the FDA and this committee will seriously consider the recommendations in the report on the Subcommittee on Science and Technology and move quickly to act on them. I want to thank our witnesses for appearing today, and also I thank you, Mr. Chairman, for continuing these hearings and hopefully more in the future. Thank you. Mr. Stupak. Thank you, Mr. Green. Ms. Blackburn for an opening statement. OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE Ms. Blackburn. Thank you, Mr. Chairman. I thank you for the hearing and I want to welcome all of our witnesses that are here today, and I also want to be certain that the Commissioner knows that I appreciate the request for an analysis of the FDA Science Board to assess whether the science and technology at the agency can meet and support the current and future regulatory needs. The report concludes much of what is already known about the current state of the FDA, and of course we have all talked about it this morning. The agency is extremely deficient in its ability to inspect and secure the Nation's food and drug imports and is not currently situated to meet its regulatory responsibilities. Reports of a crisis at the FDA have been cited for years and yet the agency's mission continues to expand as it assume more and more responsibility over consumer safety issues and acts if deficiencies are really no problem, just kind of standard operating procedure, and today we will hear testimony from several witnesses on the massive burdens placed on the FDA with regards to regulating the Nation's food supply, pharmaceuticals and more, and I am concerned with the problems the agency faces in order to meet the current regulatory obligations while others are talking about wanting to pile on another monumental task that would be requiring the FDA to regulate tobacco. Regulating tobacco would not only divert attention and resources from the agency's core competencies and missions but also would force the FDA into what would be uncharted waters. This Congress should focus on improving the FDA's current regulatory system before it heaps additional responsibility on the agency. With the agency's documented weaknesses, logistical challenges and sporadic review capabilities, I am hopeful that today's witnesses can help this committee understand how it can best assist the FDA in reducing the incidences of such problems. The FDA, in my opinion, has yet been able to articulate a systematic processes best practices used to achieve and carry out their mission. That I would offer is a very serious problem. While concern exists that the FDA does not receive adequate resources to fulfill its regulatory duties, I am wary of increasing FDA funding without increased accountability for how that money is going to be spent. I believe Congress should invest wisely in the agency. Then we should closely monitor the agency to be certain that they are aggressively seeking to carry out their mission, that they are working on timelines, that they have benchmarks, that they understand the process of best practices and that they understand that a continuing appropriation does not allow them to continue to be ineffective and inefficient. They are required to carry out their mission. They owe it to the taxpayers. It is not their money that they are spending. It is the taxpayers' money that they are spending and the taxpayers have grown very, very ill and fatigued with the lack of responsiveness from this agency. Again, I want to welcome our witnesses. I am looking forward to hearing how we should move forward in making consumer safety priority number one with the FDA. It has the potential to save millions but also the opportunity to expose many people to risk and harm. It is a challenge. It should be a balancing act of priorities. It is going to require your best efforts, and I look forward, Mr. Chairman, to the balance of the hearing. Mr. Stupak. I thank the gentlewoman. Ms. DeGette for an opening statement. OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO Ms. DeGette. Thank you, Mr. Chairman. I was going to waive my opening statement but then I looked at these startling statistics that I think we need to really think about as we talk about what the FDA is and should be doing. As you know, I have been working a lot on food safety over the last year or two and it is really shocking how at the same time we are bringing more and more food into this country from foreign countries, our inspection is less and less of this food. For example, during 1990 to 2005, imports of FDA-related food increased from 2 to 15 million lines a year, which was a 650 percent increase, but at the same time Congress gave only a 13 percent increase in field personnel to the FDA. So here is what happened with food inspections. In 1973, the FDA inspected 34,919 food establishments. In 2006, when you have a burgeoning amount of our food coming from foreign countries, they inspected 7,783 establishments, a 78 percent reduction in food inspections at a time when we are showing that the food industry is rapidly expanding and going overseas. So if anybody thinks that we don't need, number 1, a new way of thinking at the FDA, which the Bush Administration agrees with, but number 2, a vast amount of increased resources to make these things happen, then they are fooling themselves and we are only going to see an increasing number of newspaper and media accounts about the terrible problems that we are having with food, and unfortunately, this is going to go to the heart of what most of us consider our jobs to be as members of Congress, which is to protect the health, safety and well-being of our constituents. And with that, Mr. Chairman, I yield back. Mr. Stupak. I thank the gentlewoman. Mr. Walden for an opening statement, please. Mr. Walden. Mr. Chairman, I am going to waive my opening statement so we can get on to the witnesses. Thank you, sir. Mr. Stupak. Very good. Thank you. That concludes the opening statements by members of the subcommittee. On our first panel we have Dr. Gail Cassell, vice president, scientific affairs, and distinguished Lilly research scholar for infectious diseases at Eli Lilly and Company, Mr. Peter Barton Hutt, senior counsel at Covington and Burling, welcome. Dr. Catherine Woteki, global director of Scientific Affairs at Mars Incorporated, Dr. Garret FitzGerald, professor of medicine and professor and chair of pharmacology, Department of Pharmacology at the University of Pennsylvania School of Medicine, welcome, and Dr. Dale Nordenberg, managing director, Healthcare Industry Advisor at PriceWaterhouseCoopers. I thank all of you for being here and for your work. It is the policy of this committee to take all testimony under oath. Please be advised that witnesses have the right under the rules of the House to be advised by counsel during your testimony. Do any of you wish to be represented by counsel during your testimony? Let the record reflect all witnesses indicated that they did not wish to be represented by counsel during their testimony. So therefore I will ask you to please rise and raise your right hand to take the oath. [Witnesses sworn.] Mr. Stupak. Let the record reflect that the witnesses replied in the affirmative. You are now under oath. Dr. Cassell, we will start with you, please. Again, I thank each and every one of you for your work, especially on your scientific board report, and Dr. Cassell, as chair of that we would start with you, please. STATEMENT OF GAIL H. CASSELL, PH.D., VICE PRESIDENT, SCIENTIFIC AFFAIRS AND DISTINGUISHED LILLY RESEARCH SCHOLAR FOR INFECTIOUS DISEASES, ELI LILLY AND COMPANY Ms. Cassell. Mr. Chairman, members of the subcommittee, as Mr. Stupak has said, I am Gail Cassell, vice president for scientific affairs at Eli Lilly and Company. I am a member of the Institute of Medicine of the National Academy of Sciences and am currently serving a second term on its governing board. Of relevance to my testimony today, I have previously been a member of the advisory committees of the directors of both the Centers for Disease Control and the National Institutes of Health. I also co-chair the congressionally mandated review of the NIH intramural program. I appear before you today as a member of the FDA Science Board, which you now know is advisory committee to the FDA Commissioner. I served as chair of the subcommittee that wrote the report of which you have already heard discussion this morning. I want to point out that the report was unanimously endorsed by each of the 33 members of the subcommittee and also by the full Science Board that met and heard the findings of the report on December 3. On that day, the Science Board accepted the report as final. In other words, we understood and were told that the report in fact would be independent of those additional reviews that we recommended be done and undertaken by the Science Board. There is a letter to that effect here in the briefing book from Dr. Schein, who was then chair of the Science Board. The record of the proceedings of that meeting will show that due to the seriousness of the deficiencies found and the urgency of the situation, the Science Board was adamant that the report be broadly disseminated amongst the public and policymakers including it be published in the Federal Register so that the public would have full access to our findings. I would like to point out a few things that we think make this report unique and the subcommittee unique. You have heard there were several other reports in the past. Our report is unique, first, in that it is only the second time in over a century that the agency has been reviewed by an external committee as a whole entity, and we can elaborate on why we think that is important in the discussion. Second, the committee was composed of leaders, not from a single sector but as you have heard this morning, leaders from industry, academy and other government agencies. The expertise and level of accomplishments of the members are almost unprecedented in a single committee of this type, especially considering their breadth and knowledge and regulatory science and understanding of the mission of the agency. Just to point out that the subcommittee did include expertise ranging all the way from a Nobel laureate in pharmacology to 14 members of the National Academies of Sciences including two engineers and also included a former assistant Secretary of Health, a former chief counsel of the FDA, and the first Undersecretary of Food Safety to USDA. You will hear from the latter two this morning. For over a year this group of experts worked for thousands of hours including nights, weekends and holidays. It was the norm, not the exception, that when we met even by phone call we would have as many as 30 members actively engaged in discussion for 2 hours plus. Let me assure you this level of engagement by so many very busy people with diverse expertise is rare in such a committee, let alone that there would be such rapid consensus about its findings. How then do we explain this rapid consensus and the commitment to this exercise? It became rapidly apparent, I would say actually at the end of our first meeting, that the FDA suffers, as you have heard already this morning, from serious scientific deficiencies and is not positioned to meet current or emerging regulatory responsibilities. If we think there are problems today, wait until the future and the future is already here in terms of the challenges that the agency will face. Importantly for this group to understand, these deficiencies we found are agency-wide. They are not limited to a single program. They are not limited to a single center. In fact, the body of the report reports on and emphasizes those issues that were found throughout the agency that are crosscutting. The individual appendices, on the other hand, are independent reviews by our committee of each of the centers and three of the different programs. Since every regulatory decision at FDA must be based upon the best scientific evidence available, we concluded because of the deficiencies we identified that American lives are at risk. The level of concern by all members of our subcommittee and the members of the Science Board was and remains high, and thus the intensity of our commitment to this review and our insistence that the findings be broadly communicated and that immediate action be taken by the agency to address these deficiencies. The Science Board report discussed dozens of specific findings and concerns about FDA's ability to protect Americans. However, we will only emphasize seven of the principal findings in today's hearing. First, there is no more quintessential governmental responsibility than the protection of basic commodities of American life such as our foods and drugs. Our subcommittee concluded that FDA is at risk of failing to carry out this mandate and as such are beginning to turn to unregulated products for solutions, as you have heard this morning. Throughout most of its 100-year existence, FDA has been recognized as one of the Federal Government's most trusted entities but this most valuable of agencies is deteriorating for lack of resources to fulfill its mission. You will hear from Peter Barton Hutt that the demands upon the FDA have soared in recent years, as you will hear also from the Congressional Research Service and others. But not only have FDA resources not kept pace with its responsibilities, the agency's core programs have lost 1,000 people over the past decade. You will hear this morning from Dr. Cathy Woteki, the first Undersecretary of Agriculture and a former dean of a veterinary school and now with the food industry, that the FDA cannot ensure the safety of our food supply. You will hear from Dr. Dale Nordenberg, formally of the Centers for Disease Control and head of information technology for the Center for Infectious Diseases there that FDA's information technology systems are woefully outdated and inadequate, posing a concrete threat to the agency's public health mission. You will hear from Dr. Garret FitzGerald from the University of Pennsylvania that innovations and advancements in science are outstripping FDA's capacity to regulate them, threatening not only the safe introduction of new technologies but also American leadership in pharmaceuticals, vaccines, biotechnology, medical devices, and by the way, food, and in fact we would argue that if this deficiency is not corrected, we will not realize the benefit from the large investment that this country has made and rightly so in biomedical research in this country. The patients will not in fact receive those new therapies in a timely manner and they will not get the review that they should based on the new science and advances in science if we don't correct what Dr. FitzGerald will describe to you this morning, and at a time in which U.S. competitiveness in science and medicine are under increasing challenges from overseas, a weak FDA will be a break on the very technologies that the United States is relying on for its medical and technological future, even from an economic standpoint. And lastly then, I would just say that in conclusion, our report's findings echo, as you have heard this morning, study after study by the Institute of Medicine of the National Academy of Sciences, congressional committees, the Government Accountability Office and other expert bodies that have documented FDA's shortfalls and the resulting public health threat. We have been told that our report is the most comprehensive review done of FDA but not only an external group with access to the agency but it contains the most comprehensive analysis simultaneously by the agency itself and the capacity, their capacity and relationship to their regulatory authority. The last two appendices of the report are actually a self-assessment of FDA staff, the leaders of FDA, if you will. We asked them to identify what are the major scientific gaps not only in terms of technology but expertise in terms of allowing you to do your job and then by the way tell us how that links directly back to the regulatory mission. To my knowledge, this is the first time in history where you would have had this happen simultaneously and parallel but independently both by an external group of experts but also by your internal leaders. It is rare indeed. Together we think these do represent a blueprint as well as the report on drug safety by the Institute of Medicine and some of the reports that you will hear today from GAO and others. We believe this gives a blueprint for moving forward to correct these serious deficiencies. Thus, it is now time, we would argue, for the reviews to stop and to take the necessary action to correct the deficiencies. We don't need to wait on more reviews. We need to begin to correct these urgent deficiencies that we have noted. First and foremost, our subcommittee believes very strongly that there must be a strong commitment on the part of the FDA to undergo the structural changes recommended in this and previous reports to strengthen the scientific base of the agency and to recruit and retain the most outstanding leaders in regulatory science. The American public and Congress deserve no less. The Congress and the Administration need to provide the resources necessary to bring the agency into the 21st century. That is not to say that we also don't need increased accountability, as Mrs. Blackburn has also pointed out. We recognize that adequate resources, human and financial, will not be sufficient to repair the deteriorating state of science at FDA, which is why our committee also recommended significant restructuring, as I have already alluded to, but without a substantial increase in resources, the agency will be unable to meet either the mandates of Congress or the expectations of the American public regardless of management or leadership changes. On behalf of our subcommittee, we thank Chairman Stupak and Chairman Dingell and Ranking Members Barton and Shimkus for holding this hearing and for your recognition of the seriousness of the deficiencies that we have identified and the urgency with which they need to be addressed. I must say on a personal note, I am very encouraged to have heard the statements given this morning by you, Mr. Stupak, and members of your committee and others that in fact you too recognize the seriousness of the deficiencies that have been noted. In summary, however, I want to emphasize, please be assured that our findings and recommendations were made in the spirit of deep respect for the FDA, for its dedicated service to the public health provided 24/7. The urgency of our advisory is simply predicated upon the fact that we see signs of an increasingly chaotic environment descending upon FDA and the need to address the deficiencies that we have identified. Without immediate action, injuries and deaths from an overwhelmed regulatory system are certain and the costs to our society will be far greater than any dollar figure upon which we can arrive for rebuilding the agency. Currently I would point out that the each American pays about a penny and a half a day for the FDA. An increase to 3 cents a day would not in our view be a great price to pay for assurance that our food and drug supplies indeed are the best and the safest in the world. Thank you. [The prepared statement of Ms. Cassell follows:] Statement of Gail H. Cassell, Ph.D. Mr. Chairman and Members of the Subcommittee, I am Gail H. Cassell, Vice President for Scientific Affairs and a Distinguished Research Scholar for Infectious Diseases of Eli Lilly and Company and Professor. I am also Professor and Chairman Emeritus of the Department of Microbiology of the University of Alabama Schools of Medicine and Dentistry. I am a member of the Institute of Medicine of the National Academy of Sciences and am currently serving a second term on the governing board of the IOM. Of relevance to my testimony today, I have previously been a member of the Advisory Committees of the Directors of both the Centers for Disease Control and the National Institutes of Health. I also co-chaired the congressionally mandated review of the NIH intramural program. I appear before you today as a member of the FDA Science Board, Advisory Committee to the FDA Commissioner. I served as Chair of the Subcommittee on Science and Technology of the Science Board, which authored the report "FDA Science and Mission at Risk". In December 2006, the Commissioner charged the Science Board with establishing a subcommittee to assess whether FDA's current science and technology can support the agency's statutory mandate to protect the nation's food and drug supply. The subcommittee was comprised of three Science Board members and 30 other experts. The subcommittee formally presented its report to the Science Board and FDA on December 3. The report was unanimously endorsed by each of the 33 members of the Subcommittee and the full Science Board. On December 3, the Science Board accepted the report as final and dissolved the subcommittee. The record of the proceedings of that meeting will show that due to the seriousness of the deficiencies found and the urgency of the situation, the Science Board was adamant that the report be broadly disseminated among the public and policy makers, including posting it in the Federal Register. The subcommittee review was unique in many respects. First, it is only the second time in over a century that the agency has been reviewed by an external committee as a whole entity. Second, the committee was composed of leaders, not from a single sector, but from industry, academia, and other government agencies. The expertise and level of accomplishments of the members are almost unprecedented in a single committee, especially considering their breadth and knowledge in regulatory science and understanding of the mission of the agency. The subcommittee included expertise ranging from a Nobel laureate in pharmacology, 14 members of the National Academy of sciences (including two engineers), a renowned economist and specialist in workforce issues, a leader in health care policy and technology assessment, a former CEO of a large pharmaceutical company, a former Assistant Secretary for Health and Human Services who also headed global regulatory affairs within a large company for over 20 years, a former Chief Counsel for the FDA, and the first under Secretary for Food Safety at the U.S. Department of Agriculture overseeing the Food Safety and Inspection Service and coordinating U.S. government food safety policy. For over a year, this group of experts worked intensively for thousands of hours, including many nights, week-ends, and holidays conducting their review. It was the norm, not the exception, that when we met, even by teleconference, we would have as many as 30 members actively engaged in discussion for over two hours. Let me assure you, this level of engagement by so many very busy people with diverse expertise is rare in such a committee let alone that there would be such rapid consensus about its findings. How then do you explain the consensus and commitment to this exercise? It became rapidly apparent that the FDA suffers from serious scientific deficiencies and is not positioned to meet current or emerging regulatory responsibilities. It is agency wide, i.e. not limited to a single program or Center. Since every regulatory decision must be based upon the best available scientific evidence in order to protect the public's health, we concluded that American lives are at risk and that there is an urgent need to address the deficiencies. The level of concern by all members of the Subcommittee and the Science Board members was, and remains, high.and thus the intensity of their commitment to this review and their insistence that the findings be broadly communicated. What we found is quite simply, demands of FDA have soared over the past two decades. Resources have not! Furthermore, we found that the Agency has not adapted in order to maximize existing resources by capitalizing upon the scientific resources in the academic community and other government agencies. The demands upon FDA have soared due to the extraordinary advance of scientific discoveries, the complexity of the new products and claims submitted to FDA for pre-market review and approval, the emergence of challenging safety problems, and the globalization of the industries that FDA regulates. The result is that the scientific demands on the Agency far exceed its capacity to respond. This imbalance is imposing a significant risk to the integrity of the food, drug, cosmetic and device regulatory system, and hence the safety of the public. Briefly the Subcommittee found that: The FDA cannot fulfill its mission because its scientific base has eroded and its scientific organizational structure is weak. There is a fire-fighting regulatory posture instead of pursuing a culture of proactive regulatory science, especially related to food safety. Consequently, The nation's food supply is at risk. FDA cannot adequately monitor development of new medical products and adequately evaluate the safety of existing products because it is unable to keep up with scientific advances (genomics and related areas of science, wireless healthcare devices, nanotechnology, medical imaging, robotics, cell- and tissue-based products, regenerative medicine, and combination products). The FDA cannot fulfill its mission because its scientific workforce does not have sufficient capacity or capability. The FDA cannot fulfill its mission because its information technology infrastructure is sorely inadequate. It is problematic at best-and at worst it is dangerous. Although our Subcommittee was asked to review gaps in scientific expertise and technology and not to assess available resources, it rapidly became apparent that the gaps were so intertwined with two decades of inadequate funding that it was impossible to assess gaps without also assessing resources. Our Subcommittee, therefore, spent considerable effort garnering as much information as possible about the current roles and responsibilities of Agency staff, available resources, the current status of science within the Agency, and the implication of emerging science for the future of FDA and the public's health. Specifically, we found that FDA's shortfalls have resulted in a plethora of inadequacies that threaten our society- including, but not limited to: inadequate inspections of manufacturers a dearth of scientists who understand emerging new technologies, inability to speed the development of new therapies, an import system that is badly broken, a food supply that grows riskier each year, and an information technology infrastructure that was identified as a source of risk in every Center and program reviewed by the Subcommittee. We concluded that FDA can no longer fulfill its mission without substantial and sustained additional appropriations. The current situation has developed over many years, the question is not why or how we got here but rather how do we strengthen FDA going forward? Our subcommittee strongly believes our report provides the required blueprint. The report is unique in yet another important way. It not only provides an assessment by a rigorous review of the Agency by a diverse team of experts from the public and private sectors, but it also includes a simultaneous assessment by leaders of the FDA (as contained in Appendices L-M). Our Subcommittee requested staff to not only identify science and technology gaps but to link each directly to their specific regulatory mission. This comprehensive external/internal analysis--done at the same point in time for an entire Agency-- is indeed rare. We recognize that adequate resources-human and financial- alone will not be sufficient to repair the deteriorating state of science at FDA, which is why our committee also recommended significant restructuring. But without a substantial increase in resources, the Agency will be unable to meet either the mandates of Congress or the expectations of the American public, regardless of management or leadership changes. Our findings are supported by many recent GAO reports as you will hear today as well as recent reports form the National Academy of Sciences. It is now time for the reviews to stop and to take the necessary action to correct the deficiencies. First and foremost, there must be a strong commitment on the part of the FDA to undergo the structural changes recommended in this and previous reports to strengthen the scientific base of the agency and to recruit and retain the most outstanding leaders in Regulatory Science. The American public and Congress deserve no less. Then, Congress and the Administration need to provide the necessary resources to bring the Agency into the 21st Century. On behalf of our Subcommittee, we thank Chairmen Stupak and Dingell and ranking members Barton and Shimkus for holding this hearing and for your recognition of the seriousness of the deficiencies we have identified and the urgency with which they need to be addressed. Please be assured that our findings and recommendations were made in the spirit of deep respect for the FDA and for its dedicated service to public health provided 24/7. We fully recognize the extraordinary efforts of the committed FDA staff. It is apparent that they are the very reason further catastrophic food and drug events have been averted. The urgency of our advisory is simply predicated upon the fact that we see signs of an increasingly chaotic environment descending upon FDA, and the need to address the deficiencies we identified. Without immediate action, injuries and deaths from an overwhelmed regulatory system are certain, and the costs to our society will be far greater than any dollar figure upon which we can arrive at. I have attached a synopsis of our Subcommittee report to my statement and request that it be included in the recording of this hearing. Other members of the Subcommittee here with me today will summarize the most important findings and those in need of the most urgent attention. FDA SCIENCE AND MISSION AT RISK SYNOPSIS OF A REPORT OF THE FOOD AND DRUG ADMINISTRATION'S SCIENCE BOARD DECEMBER 2007 Introduction The Food and Drug Administration's (FDA) Science Board is an advisory committee to the Commissioner of FDA, chartered to assist the agency on a range of scientific matters, one of which is how the agency's scientific capabilities can be maintained so as to ensure that the agency can carry out its increasingly complex responsibilities. In December 2006, Commissioner of Food and Drugs Andrew VonEschenbach charged the Science Board with establishing a subcommittee to assess whether FDA's current science and technology can support the agency's statutory mandate to protect the nation's food and drug supply. The subcommittee was comprised of three Science Board members, complemented by 30 other experts from industry, academia, and other government agencies. Upon its completion after a year of intensive examination of FDA's programs and organization, the subcommittee's report was unanimously endorsed by all 33 members of the Subcommittee and the full Science Board. As the report's title suggests, the Board has concluded that FDA is an agency at risk of failing to carry out its mandate, and thus the nation and its citizens are at risk of grievous harm if the FDA is not committed to greatly strengthening its scientific base and if it is not given the means to ensure the safety of our foods, drugs, medical devices and other consumer products for which FDA is responsible. A Successful FDA is Essential to a Safe Society There is no more quintessential governmental responsibility than the protection of basic commodities of American life such as our foods and drugs. That fact was recognized over a century ago, when Congress created the Food and Drug Administration as one of the nation's first regulatory agencies. The Science Board report emphasizes that the need for an effective FDA is greater than ever before: FDA regulates 80% of the nation's food supply; plays a critical role in assuring the safety of therapeutic such as drugs, vaccines, and medical devices; regulates a vast number of other consumer products, ranging from television sets and cellular telephones to cosmetics, blood, and pet food; and has historically been the agency to which governments around the world look to make determinations about the safety of new products. Moreover, FDA is increasingly important to the nation's economic health, as it regulates a quarter of consumer expenditures, and the industries it regulates are innovative leaders in science and technology and among the few American industries with a positive trade balance with other nations. Further, FDA will be a critical component in combating emerging threats such as intentional contamination of the food supply and the threat of chemical, biological and radiological attack-as well as naturally occurring threats such as SARS, West Nile virus, Mad Cow disease and avian influenza. FDA's Exemplary Record Must be Maintained Throughout most of its 100+ years existence, FDA has been recognized as one of the Federal government's most respected and trusted entities. The agency led the way in creating an effective, science-based "safety net" for consumer products. FDA's record of accomplishment is a long and distinguished one: new drugs are approved for marketing as fast or faster than anywhere else in the world; state-of-the art standards for safe food production have been established; a nascent medical device industry was helped to develop and grow into one of our most innovative; FDA decisions and procedures have been emulated by country after country around the world; products were labeled so as to give physicians and consumers reliable information about the products they prescribe and use; polls have consistently placed FDA at the top of any list of most trusted Federal agencies; and threat after threat was taken on and defeated, from unsafe pesticide use to improperly manufactured drugs to radiation emitted from a host of consumer products. FDA's scientists are widely considered among the most skilled and dedicated of our civil servants, and their commitment to excellence is unequaled. A Record of Success is Threatened The FDA Science Board concluded that FDA's rich tradition of excellence has been slowly and steadily "hollowed out" by a failure of the Agency to strengthen its scientific organizational structure and by progression of budget cuts and inattention to the agency's needs. That deterioration, in turn, means that not only can the agency not fulfill its public health mission, but that the safety of our citizens and the well being of our economy are being undermined. Further, as the agency falls farther and farther behind, the public is increasingly losing confidence in the government's ability to protect them-already more and more citizens turn to unproven therapies that have not been subjected to FDA's rigorous scientific standards; and states are stepping in to regulate in FDA's absence, portending a balkanized, inefficient regulatory system without one national set of safety standards. More specifically, the Board has identified a range of problems and program areas that need immediate attention, including the following: The demands upon the FDA have soared due to the extraordinary advance of scientific discoveries, the complexity of the new products and claims submitted to FDA for approval, the emergence of heretofore unknown health threats, and the globalization of the industries that FDA regulates. The metrics alone are daunting, for example, 125 new statutes added to FDA's workload by Congress in the past two decades, most without resources to implement them; 375,000 establishments making FDA-regulated products; a tripling in a decade of R&D in drugs and medical devices; an exponential increase in drug adverse reaction reports; and the emergence in recent years of extraordinary new health threats, such as SARS, E coli 0157H:7, AIDS, BSE, and many more. Perhaps most emblematic of this trend is the ten fold increase in the past decade of imports from other countries. Today, 15% of our food supply is imported from more than 100 nations, along with over half of our drugs, yet FDA has been given virtually no new authorities nor resources to address a dramatic change in the sourcing (and associated risk) from products made overseas, often in developing countries with little or no tradition of scientific rigor. FDA's resources have not only not kept pace with its responsibilities, many critical agency programs have sustained actual cuts. For example, FDA's food headquarters program has lost 20% of its scientists in just the past three years, despite an upswing in outbreaks of foodborne disease in the United States and a steady increase in contaminated seafood, produce and other foods being imported from foreign countries. Similarly, FDA has lost several hundred inspectors due to budget cuts since 2003, leaving the agency not only incapable of inspecting domestic manufacturers but also ensuring that most of the nation's ports have no FDA inspectors. Although one FDA function, new drug and device review, has received additional funding from industry-paid user fees, the agency as a whole as lost 1000 people over the past decade. Innovations and advancements in science are outstripping FDA's capacity to understand and regulate them, threatening not only the safe introduction of new technologies but also American leadership in pharmaceuticals, vaccines, biotechnology, and medical devices. The United States is on the cusp of another "revolution" in therapeutics that holds great promise for effective treatments of cancer, Alzheimer's, Parkinson's, and other previously incurable conditions. Breakthroughs in human genome research, molecular biology, nanotechnology, food processing technology, computational mathematics, in vivo imaging and many more are likely to change the face of medicine and food production, yet FDA has not been given the capacity to prepare for those breakthroughs. Tens of billions of dollars are being spent by both the public and private sector on the development of such products, yet FDA has been denied the relatively minor funding necessary to ensure their rapid and safe entry to market. At a time in which U.S. competitiveness in science, medicine, and food production are under increasing strain from overseas, a weak and under funded FDA will be a brake on the very technologies that the United States is relying upon for its medical and technological future. Furthermore, they have gaps in major areas of scientific expertise and they are no longer able to recruit the best and brightest in regulatory science nor to retain the ones them if recruited. FDA cannot ensure the safety of our food supply. It is difficult for leading scientists to reach such a dire conclusion, but the report's authors saw a food safety system in which basic inspection, enforcement, and rulemaking functions have been severely eroded, as has the agency's ability to respond rapidly to foodborne disease outbreaks and to keep pace with new regulatory science. FDA's food safety program is characterized as one steadily dropping in staffing, and in funding for essential functions such as development of its scientists and travel to scientific fora. The inspection rate of food processors can only be described as "appalling," resulting from budget cuts for food safety that has brought the agency from doing 35,000 domestic food inspections in 1973 to fewer than 8000 this year (meaning FDA inspects most facilities on average only every ten years). The foreign inspection rate is even worse, as the agency may manage to inspect a dozen foreign food manufacturers on 2008, despite the thousands of overseas producers sending food to our shores. The agency has no resources to conduct inspections of retail food establishments or of food-producing farms. Moreover, as FDA's leadership in food safety erodes, other countries are presenting themselves as the appropriate model for food safety standard setting, even though such standards can be unscientific and disguised trade barriers, to the detriment of principles of sound science and to market access for American food exports. FDA's Information Technology systems are woefully outdated and inadequate, posing a concrete threat to the agency's public health mission. The report's authors were extremely disturbed by the state of FDA's IT infrastructure. They found a situation problematic at best, at worst dangerous. Many of FDA's systems are far beyond their expected life span, and systems fail frequently (even email systems are unstable). Reports of product dangers are not rapidly compared and analyzed, inspectors' reports are still laboriously hand written, and the system for managing imported products cannot communicate with Customs and other government systems. These inadequacies do not only cause inefficiencies and waste, but more importantly mean that dangers lurking in information coming to the FDA are simply missed-such as drug adverse reactions that are duly reported but not flagged for attention due to incapacities in information management. CONCLUSION The findings and recommendations of the Science Board are not novel. Recent studies by the Institute of Medicine of the National Academy of Sciences, Congressional committees, the Government Accountability Office and other expert bodies have documented FDA's shortfalls and the resulting public health threat. It is now time for the examinations to stop and to take action. FDA's resource constraints cannot be reversed without a determined effort by Washington decision makers to rebuild this bulwark of our system of consumer protection. The report makes recommendations for significant restructuring of science at the FDA but it is also apparent that management nor leadership changes can be expected to have a significant impact, in the absence of very significant increases in resources. Without action, injuries and deaths from an overwhelmed regulatory system are certain, and the costs to our society will be far greater than any dollar figure upon which we can arrive at. ---------- Mr. Stupak. Thank you. Mr. Hutt, opening statement, please, sir. STATEMENT OF PETER BARTON HUTT, COVINGTON & BURLING LLP Mr. Hutt. Mr. Chairman and members of the subcommittee, I am Peter Barton Hutt. I am a senior counsel at the Washington, D.C., law firm of Covington and Burling and a lecturer and food and drug law at Harvard Law School. During 1971 to 1975, I was privileged to serve as chief counsel for the Food and Drug Administration. It is meaningless to discuss the scientific needs of FDA without first analyzing the resources, both money and personnel, currently available to the agency to accomplish its public health mission. I therefore have volunteered to prepare for our subcommittee a report that would document both the increasing responsibilities imposed upon FDA by Congress during the past 2 decades and the reduced appropriations provided by Congress for the agency during this period. Because of its central importance in demonstrating the need for additional congressional appropriations for FDA, I request that my report be included in full in the record of this proceeding. Mr. Stupak. Without objection, it will be. Mr. Hutt. Thank you, sir. Science at the Food and Drug Administration today is in a precarious position. In terms of both personnel and the money to support them, the agency is barely hanging on by its fingertips. FDA has become the paradigmatic example of the hollow government syndrome, an agency with expanded responsibilities, stagnant resources and the consequent inability to implement or enforce its statutory mandates. For the reasons set forth in my report, Congress must commit to a 2-year appropriations program to increase FDA employees by 50 percent and to double the FDA funding, and then at least to maintain a fully burdened yearly cost-of-living increase of 5.8 percent across all segments of the agency. Without these resources, the agency is powerless to improve its performance, will fall only further behind and, as Gail said, will be unable to meet either the mandates of Congress or the expectations of the American public. My report first addresses the tremendous problems encountered by FDA in implementing the burgeoning number of new statutory responsibilities imposed by Congress each year. Table 1 of my report lists more than 100 statutes that directly impact FDA enacted by Congress only in the last 20 years since 1988. That is an average of more than six new statutes a year. In the history of our country, no other Federal regulatory agency has ever faced such an onslaught of new statutory mandates without appropriate funding and personnel to implement them. These unfunded mandates cascade down on FDA from all sides of the political spectrum. It is not a problem caused by bipartisan politics but the country cannot withhold the requisite scientific resources from FDA and then complain that the agency is incapable of meeting our expectations. The lack of adequate scientific personnel and the resources to support them has had a major adverse impact on important FDA regulatory programs to assure the continued safety of marketed products. Ten specific examples are provided in pages 10 to 12 of my report. Tables 4 and 5 of my report cover FDA appropriations for the 20-year period of 1988 to 2007. From 1994 to 2007, the agency's appropriated personnel decreased by 1,311 people and FDA's appropriated funding during this time increased by only about two-thirds the amount needed to keep up with inflation. It thus is obvious that FDA has become increasingly impossible to maintain its historic public health mission. The deterioration of the FDA Field Force has been severe. The science functions within the FDA Center for Food Safety and Applied Nutrition which include, of course, dietary supplements and cosmetics, have been hit especially hard. In conclusion, science is at the heart of everything that FDA does. Without a strong scientific foundation, the agency will flounder and ultimately it will fail. The scientific resources needed by FDA to carry out its statutory mission cannot be sustained on a minimal budget. Congress must commit to doubling the current FDA funding together with a 50 percent increase in authorized personnel over the next 2 years if this agency is to do its job. Thank you, sir. [The prepared statement of Mr. Barton Hutt follows:] Statement of Mr. Hutt Major Points 1.Science at FDA today is in a precarious position. In terms of both personnel and the money to support them, the agency is barely hanging on by its fingertips. 2.To correct this problem, Congress must commit to a two- year appropriations program to increase the FDA employees by 50 percent and to double the FDA funding, and then at least to maintain a fully burdened yearly cost-of-living increase of 5.8 percent across all segments of the agency. 3.During the past 20 years Congress has enacted more than 100 statutes that directly impact FDA, without providing money and personnel to implement them. 4.There are numerous unfinished FDA safety programs because of a lack of FDA resources. 5.During the past 20 years, faced with its ever-increasing responsibilities, FDA appropriations have resulted in a gain of only 817 employees and a loss of more than $300 million to inflation. 6.FDA regulation of food, dietary supplements, and cosmetics have been hit especially hard. 7.The deterioration of the FDA Field Force has been equally severe. 8.Science is at heart of everything that FDA does. Without a strong scientific foundation -- adequately funded by Congress -- the agency will flounder and ultimately fail. Testimony Mr. Chairman and Members of the Subcommittee, I am Peter Barton Hutt. I am a Senior Counsel at the Washington, D.C. law firm of Covington & Burling LLP and a Lecturer on Food and Drug Law at Harvard Law School where I have taught a course on food and drug law for the past fifteen years. During 1971-1975 I served as Chief Counsel for the Food and Drug Administration (FDA). I appear before you today in my capacity as a consultant to the Subcommittee of the FDA Science Board that prepared the recent report on "FDA Science and Mission at Risk." It is meaningless to discuss the scientific needs of FDA without first analyzing the resources -- both money and personnel -- currently available to the agency to accomplish its public health mission. At the first meeting of the Subcommittee I therefore volunteered to prepare a report that would document both the increasing responsibilities imposed on FDA by Congress during the past two decades and the reduced appropriations provided for the agency. My report is included in the Subcommittee's report as Appendix B and is attached to this testimony. Because of its central importance in demonstrating the need for additional congressional appropriations for FDA, I request that my report be included in full in the record of these hearings. Introduction Science at the Food and Drug Administration (FDA) today is in a precarious position. In terms of both personnel and the money to support them, the agency is barely hanging on by its fingertips. The accumulating unfunded statutory responsibilities imposed on FDA, the extraordinary advance of scientific discoveries, the complexity of the new products and claims submitted to FDA for premarket review and approval, the emergence of challenging safety problems, and the globalization of the industries that FDA regulates -- coupled with chronic underfunding by Congress -- have conspired to place demands upon the scientific base of the agency that far exceed its capacity to respond. FDA has become a paradigmatic example of the "hollow government" syndrome -- an agency with expanded responsibilities, stagnant resources, and the consequent inability to implement or enforce its statutory mandates. For the reasons set forth in my report, Congress must commit to a two-year appropriations program to increase the FDA employees by 50 percent and to double the FDA funding, and then at least to maintain a fully burdened yearly cost-of-living increase of 5.8 percent across all segments of the agency. Without these resources the agency is powerless to improve its performance, will fall only further behind, and will be unable to meet either the mandates of Congress or the expectations of the American public. Congress and the nation therefore have a choice. We can limp along with a badly crippled FDA and continue to take serious risks with the safety of our food and drug supply, or we can fix the agency and restore it to its former strength and stature. If Congress concludes to fix FDA, however, this cannot be done cheaply. It will be necessary to appropriate substantial personnel and funds to reverse the damage done to FDA in the past two decades. Accumulating Unfunded FDA Statutory Mandates My report first addresses the tremendous problems encountered by FDA in implementing the burgeoning number of new statutory responsibilities imposed by Congress each year. Table 1 lists more than 100 statutes that directly impact FDA enacted by Congress only since 1988 -- an average of more than six each year. These are in addition to the core provisions of the Federal Food, Drug, and Cosmetic Act of 1938 itself and another 90-plus statutes directly involving FDA that were enacted during 1939-1987. Each of these statutes requires some type of FDA action. Many require the development of implementing regulations, guidance, or other types of policy, and some require the establishment of entire new regulatory programs. Virtually all require some type of scientific knowledge or expertise for the agency adequately to address them. Yet none of these statutes is accompanied by an appropriation of new personnel and increased funding designed to allow adequate implementation. In the history of our country, no other Federal regulatory agency has ever faced such an onslaught of new statutory mandates without appropriate funding and personnel to implement them. Instead, the agency is expected to implement all of these new unfunded congressional mandates with resources that, in the corresponding time, represent at best a flat budget. Not surprisingly, many of the new congressional mandates languish for years or cannot be implemented at all. In addition to the laws listed in Table 1, which directly require FDA to take action, Congress has enacted a number of statutes of general applicability that place a large administrative burden on FDA in conducting its daily work. Representative statutes of general applicability that require substantial FDA resources for compliance are listed in Table 2. For example, in order to promulgate a regulation, FDA must at a minimum include, in the preamble, not only full consideration of all the substantive issues raised by the regulation itself, but also a cost-benefit analysis, an environmental impact discussion, a federalism evaluation, a small business impact statement, a determination whether there is an unfunded mandate impact on state or local governments, and an analysis of paperwork obligations. The proposed and final regulations must be reviewed and approved by the Department of Health and Human Services (DHHS) and the White House Office of Management and Budget (OMB). However well-intentioned, these responsibilities place a major burden on FDA and require that scientific resources be diverted from other areas in order to assure compliance. This has led FDA to avoid rulemaking wherever possible and to substitute informal guidance or to take no action whatever on important regulatory matters. The statutes of general applicability are not the only directives that have a strong impact on FDA. Every President in the past 40 years has issued one or more Executive Orders that impose additional obligations on FDA. A representative sample is set forth in Table 3. These Executive Orders have the same binding status as a statute and can have as great or greater impact. The combined weight of these unfunded FDA statutes, statutes of general applicability, and Executive Orders is tremendous. Each includes additional responsibilities for the agency without commensurate appropriations for personnel and funds. The result is that, with relatively flat funding and a very large increase in what the country expects from the agency, FDA is falling further and further behind. These unfunded mandates cascade down on FDA from all sides of the political spectrum. It is not a problem caused by partisan politics. Nor does my report question the justification for these mandates. Rather, it is the undeniable fact that these mandates are unfunded, and thus that FDA lacks the capacity to implement them, that is objectionable. The country cannot withhold the requisite scientific resources from FDA and then complain that the agency is incapable of meeting our expectations. Unfinished FDA Safety Programs The lack of adequate scientific personnel and the resources to support them has had a major adverse impact on important FDA regulatory programs to assure the continued safety of marketed products. For example, on several occasions FDA has established comprehensive reviews of products after they have been marketed, either at the direction of Congress or on its own initiative. Virtually all of these reviews remain unfinished for lack of agency resources. Ten specific examples are provided on pages 10-12 of my report. Lack of Adequate FDA Appropriations No one outside FDA has enough information about the agency to conduct a zero-based budget analysis for FDA. It is likely that FDA itself has numerous materials that would bear upon such an analysis, but the agency states that it is not able to make those public. My report therefore pursues a different approach. Attached are tables that present a partial statistical history of the congressional appropriations for FDA personnel and funds for the past 20 years, compiled from publicly-available sources. Tables 4 and 5 cover the 20-year period of 1988 - 2007. As the last column in Table 5 shows, from 1988 to 1994 FDA's appropriated personnel and funding kept even with its increasing responsibilities and exceeded inflation. The agency's appropriated personnel increased from 7,039 to 9,167 (a gain of 2,128 people) and its funding from $477.504 million to $875.968 million (a gain of $398.464 million). In 1994, however, FDA hit a brick wall. From 1994 to 2007 the agency's appropriated personnel decreased from 9,167 to 7,856 (a loss of 1,311 people), returning it almost to the same level that was appropriated 20 years earlier. FDA's appropriated funding during this time increased by $698.187 million, but this was only about two-thirds the funding needed to keep up with FDA's fully burdened cost-of-living increase of 5.8 percent, compounded yearly. Thus, over the entire 20 years FDA gained only 817 employees -- an increase of 12 percent -- and lost more than $300 million to inflation, while faced with implementing the new statutes listed in Table 1 and the agency's substantial other core responsibilities under the 1938 Act. Confronted with a burgeoning industry as documented in Table 6, it became increasingly impossible for FDA to maintain its historic public health mission. My report contains numerous examples of the impact of this lack of personnel and funds on FDA programs, particularly dealing with food and regulatory enforcement. The science functions within the FDA Center for Food Safety and Applied Nutrition (CFSAN) -- which include dietary supplements and cosmetics -- have been hit especially hard. In the 15 years from 1992 to 2007, CFSAN suffered a reduction in force of 138 people, or 15 percent of its staff. During the same period, Table 1 shows that Congress enacted several important new laws creating major new responsibilities for CFSAN, all of which required substantial scientific expertise for implementation. The deterioration of the FDA Field Force -- which must daily make scientific evaluations of FDA-regulated products -- has been equally severe. Between 1973 and 2006 there was a 78 percent reduction in food inspections. FDA conducted twice the number of foreign and domestic food establishment inspections in 1973 (34,919) then in did for all FDA-regulated products in 2006 (17,641). The inability of FDA adequately to police the importation of food and drugs into the United States has been well documented by Congress during the past two years. Conclusion We must all recognize that FDA can increase its attention to high priority issues, or take on entirely new responsibilities, only in the following two ways. First, FDA can divert personnel from other priorities, thus leaving those other areas neglected. This is what happened with contaminated pet food, one of the many areas which have been neglected because of a lack of agency resources. Second, Congress can determine to provide adequate funding for all of the responsibilities that the country expects FDA to implement. But it is clear that, unless Congress adopts this second approach, FDA will of necessity be forced to follow the first. Science is at the heart of everything that FDA does. Without a strong scientific foundation, the agency will founder and ultimately fail. The scientific resources needed by FDA to carry out its statutory mission cannot be sustained on a minimal budget. Congress must commit to doubling the current FDA funds, together with a 50 percent increase in authorized personnel, within the next two years. From then on, it is essential that the FDA budget at least keep up with inflation and perhaps even more. Another report should be prepared in five years to offer advice on the state of science at FDA at that time and the resource needs that remain. ---------- Mr. Stupak. Thank you. Dr. Woteki, it is time for your opening statement, please. STATEMENT OF CATHERINE E. WOTEKI, PH.D., GLOBAL DIRECTOR OF SCIENTIFIC AFFAIRS, MARS, INC. Dr. Woteki. Thank you, Mr. Chairman. I am Catherine Woteki. I am global director of scientific affairs for Mars, Incorporated, a global food and pet care business. Prior to joining Mars, I was Undersecretary for Food Safety in the U.S. Department of Agriculture and also dean of agriculture at Iowa State University. I am pleased to have the opportunity to appear today to present the findings of the FDA Science Board's review of the Center for Food Safety and Applied Nutrition and the Center for Veterinary Medicine. Between them, these two centers are responsible for assuring the safety of the Nation's food and feed supply, cosmetics, veterinary drugs and dietary supplements and for assuring that information on labels is truthful and not misleading. All together, this segment of the U.S. economy amounts to a staggering $466 billion in domestic and imported food sales, $18 billion in dietary supplements, $60 billion in cosmetics, $5 billion in veterinary drugs, $35 billion in animal feed sales and $15 billion in pet food sales. Our committee's key finding is, and I am going to quote directly from the report, that ``FDA does not have the capacity to ensure the safety of food for the nation. Crisis management in FDA's two food safety centers, the Center for Food Safety and Applied Nutrition,'' or CFSAN, as it is called, ``and the Center for Veterinary Medicine,'' or CVM, ``has drawn attention and resources away from FDA's ability to develop the science base and infrastructure needed to efficiently support innovation in the food industry, provide effective routine surveillance and conduct emergency outbreak investigation activities to protect the food supply.'' That is the end of our direct quote. The committee's recommendation as you have heard is to double FDA's appropriation over the next several years. The crisis within FDA and particularly in these two food safety centers is the result of decades of neglect and erosion of CVM and CFSAN's resources needs. The current situation is not a reflection on the outstanding staff who do a commendable job under enormous pressure. They set priorities, they focus on the most important public health issues and they develop innovative ways to leverage what they have. Rather, our review led us to conclude that CVM and CFSAN's basic functions of inspection, enforcement and rulemaking are severely eroded. Some examples you have already cited in your opening statements. Over 35 years, there has been a 78 percent reduction in inspections with food establishments, now inspected on the average once every 10 years. The recent pet food crisis strained an already overtaxed system. The Center for Veterinary Medicine received more than 18,000 telephone calls related to the melamine pet food contamination but they only have two full-time people who are devoted to working on pet food issues. Since 2003, just in the last 5 years, CFSAN's workforce declined from 950 FTE to 771, and CFSAN no longer has the ability to generate the science needed to fulfill it human nutrition regulatory responsibilities. Now, why has this happened? Well, a good part of that answer is the dramatic increase and diversification of the responsibilities assigned to these two centers. Since 2003, a half dozen new laws have been enacted that require significant investment of personnel and resources to implement. They include provisions that are related to food contact substances, the Bioterrorism Act, food allergen labeling, trans fat labeling, egg food safety, pandemic flu planning, and minor use and minor species health. These new responsibilities increase the complexity of the centers' tasks and increase the scientific demands that are placed on them but no additional funding has been provided to enable the centers to implement these new responsibilities. My written testimony provides more specific findings and recommendations and I request that that be inserted into the record, and I am happy to answer any questions that you may have. [The prepared statement of Ms. Woteki follows:] Statement of Dr. Woteki, Ph.D., R.D. Mr. Chairman and members of the Committee, thank you for the opportunity to appear today to present the findings of the FDA Science Board's review of the Center for Veterinary Medicine and the Center for Food Safety and Applied Nutrition. Between them, these two centers are responsible for assuring the safety of the nation's food and feed supply, cosmetics, veterinary drugs, and dietary supplements and for assuring that information on labels is truthful and not misleading. All together, this segment of the US economy amounts annually to $466 billion in domestic and imported foods sales; $18 billion in dietary supplements, $60 billion in cosmetics, $5 billion in veterinary drugs, $35 billion in animal feed and $15 billion in pet food sales. Our committee's key finding is that "FDA does not have the capacity to ensure the safety of food for the nation. Crisis management in FDA's two food safety centers, Center for Food Safety and Applied Nutrition(CFSAN) and Center for Veterinary Medicine (CVM), has drawn attention and resources away from FDA's ability to develop the science base and infrastructure needed to efficiently support innovation in the food industry, provide effective routine surveillance, and conduct emergency outbreak investigation activities to protect the food supply" (Report of the Subcommittee on Science and Technology, FDA Science and Mission at Risk, November, 2007, p. 3). This crisis is the result of decades of neglect and erosion of CVM and CFSAN's resource needs. In contrast to drug discovery and development, FDA's food evaluation methods have not kept pace with evolving risks, and evolving science These centers are strapped for resources and can accomplish little beyond addressing the top priority of the moment. Major issues of public health concern are not being addressed such as cosmetic safety and the many regulatory responsibilities FDA has for human nutrition The current situation is not a reflection on the outstanding staff who do a commendable job under enormous pressure. They set priorities, they focus on the most important public health issues, and they develop innovative ways to leverage what they have. Rather, our review (which was conducted in winter and spring of 2007 against a backdrop of cascading product recalls) led us to conclude that CVM and CFSAN's basic functions of inspection, enforcement and rulemaking are severely eroded. Over 35 years, there has been a 78% reduction in inspections with food establishments now inspected, on average, once every 10 years. The CVM workforce consists of 375 FTE, 4% of FDA total, but it faces unique challenges in the number and diversity of species it must address as well as maintaining a human health orientation. The pet food industry is a $15 billion a year business and largely falls under FDA's regulatory purview. The recent pet food crisis strained the already overtaxed system. CVM received more than 18,000 telephone calls concerning melamine pet food contamination. Estimates are that about 1 percent of the total volume of pet food was involved with a potential economic impact of $200 million. However, CVM is able to devote only two people working full time on pet food issues. Since 2003, CFSAN's workforce declined from 950 FTE to 771 FTE. CFSAN no longer generates the science needed to fulfil its human nutrition regulatory responsibilities. The dietary supplement industry has grown to more than $20 billion in annual sales, and millions of Americans use those products every day. But the legislation authorizing FDA regulation of those products has never been funded, the practical effect being that the products and their health claims are essentially unregulated. The same can be said of the cosmetics industry, which has more than $60 billion in annual sales, but is overseen by an FDA staff of less than 20 people supported by $3.5 million budget. Why has this happened? Most importantly, CVM and CFSAN have experienced a dramatic increase and diversification of their responsibilities. Since 2003, a half dozen new laws have been enacted that require significant investment of personnel and resources to implement. The new laws include FDAMA provisions related to food contact substances, the Bioterrorism Act, FALCPA-food allergen labeling, trans fat labeling, egg safety food cGMP, pandemic flu planning, and minor use and minor species health. These new responsibilities increase the complexity of the Centers' tasks and increase scientific demands, but do not provide funding to enable the Centers to implement their new responsibilities. Our finding is not a new one. In 1991, a previous committee reported to the Secretary of HHS its "deep concerns about the viability of the foods program and the lack of Agency priority for food issues. Decline in resources and program initiatives during the past 10-15 years indicate a lack of Agency management attention and interest in this area, although public interest in, and concern for, an effective food program remain high" (Report of the Advisory Committee on the Food and Drug Administration to the Secretary of HHS, May, 1991). Center for Veterinary Medicine - specific findings and recommendations CVM faces a spectrum of regulatory issues requiring high levels of science. These include methods to identify residues (synthetic and natural chemicals) and emerging infectious diseases; antimicrobial resistance monitoring (science and informatics base of NARMS); biotechnology (genetic engineering, cloning, use of phages, biopharma); and new technologies in drug manufacturing and delivery (nanotech, genetics, biomarkers, new approaches to characterizing microbial resistance). The key stressors that CVM faces are: the convergence of massive data volume and complexity with newly developed products from the "omics revolution"; developing and maintaining unique databases with respect to species, endpoints, human health; and under staffing (375 FTE), vacancies in key scientific positions, and lack of funds (>80% of budget in salary). Our committee's recommendations are to: bolster CVM's in-house scientific capability in emerging areas relevant to veterinary medicine; improve IT capability, and integrate within FDA and with CVM partners (CDC, USDA), eliminate paper storage; and foster integration with cutting edge science activities across FDA and with external partners; and to expand the FDA Fellow Program. Center for Food Safety and Applied Nutrition - specific findings and recommendations CFSAN's regulatory responsibilities require high levels in diverse sciences: food production sciences; risk mitigation at the source; consumer understanding of nutrition and food safety information; better labeling for public health; immunology; detection and prevention of foodborne viral diseases; safety of cosmetics; and adverse event reporting and analysis. The key stressors on the Center include: lack of resources (950 FTE in 2003 vs. 771 FTE in 2007; new mandates; elimination of research programs); globalization of the food supply; new food processing technologies; new threats to public health; ongoing response to emergencies; outmoded IT systems and laboratory instruments; and the fact that they are addressing only the highest priorities. Our committee's recommendations pertaining to CFSAN are to: add resources to attract, retain and leverage scientific expertise and regulatory research in priority areas; invest in 21st century regulatory science that could anticipate future food safety issues; and develop a cadre of professionals capable of applying the new science to emerging challenges; leverage research programs sponsored by NCTR, ARS, CSREES, CDC, NIH and DHS and conduct this activity with the Chief Scientific Officer; and not neglect cosmetics and nutrition. Thank you, Mr. Chairman, I will be happy to answer questions. ---------- Mr. Stupak. Thank you, Doctor. For the witnesses, any attachments to your testimony will be made part of the record, and again, we appreciate those. There are some good charts and statistics for us. Dr. FitzGerald, please, opening statement, sir. STATEMENT OF GARRET A. FITZGERALD, PROFESSOR OF MEDICINE AND PROFESSOR AND CHAIR OF PHARMACOLOGY, DEPARTMENT OF PHARMACOLOGY, UNIVERSITY OF PENNSYLVANIA SCHOOL OF MEDICINE Dr. FitzGerald. Thank you, Chairman Stupak and members of the committee. My name is Garret FitzGerald. I am a professor of medicine, chair of the Department of Pharmacology and director of the Institute of Translational Medicine and Therapeutics at the University of Pennsylvania. I have worked in the area of basic and clinical research relating to drug action for the past 30 years. The FDA is charged with a mission fundamental to the safety of the Nation. Recent events--the cardiovascular hazards of COX-2 inhibitors, the uproar over the anti-diabetic drug Avandia, and the confusing and contradictory messages in the press about the lipid-lowering drug Vytorin have undermined our belief that the agency can safeguard the public and just as importantly communicate informed and unbiased information about drug safety. The recent episodes of pet food and toothpaste contamination remind us that the bulk production of drugs, chemicals and cosmetics that reach the United States have largely moved offshore. Serious as each of these incidents is, they are merely warning signs of a gathering storm. We ignore them at our peril. The FDA is the safeguard for the integrity of our drug supply and our food supply. Failure of the FDA to fulfill its mission would expose each and every one of us to danger, either from the willful intent of terrorists or the incompetence of manufacturers. Both the Institute of Medicine report and our subcommittee report, ``FDA Science and Mission at Risk'' have identified in plain terms a disturbingly systemic set of problems in the agency. These include the politicization and instability of leadership, attrition of manpower, poor morale, structural and organization inadequacies, depleted infrastructure, and most importantly, critical gaps in scientific expertise and technology, as emphasized in this report. These factors, many but not all reflecting a serious erosion of necessary resource, compound to undermine seriously the science base at the agency and its ability to fulfill its mandate. How have we let the FDA get to this point? We have failed to maintain and upgrade the FDA over the past 50 years. Complex organizations, just like complex machines--and planes are good example--can continue to function effectively if preventively and reactively maintained. Last year a 57-year-old seaplane lost a wing and fell into the sea, killing 20 people on board. It had been poorly maintained, literally papering over the crack. However, the National Transportation Board assigned blame not just to the airline but also the Federal Aviation Agency (FAA) for not amending the rules with the times and having the appropriate regulatory requirements in place. How can we move to restore the ability of the FDA to face the challenges of the world in 2008, not those of 1958? We must empower the FDA to cope with the rapidly changing science of drug development to ensure a pipeline of safe, innovative and effective medicines for our present and our future. Firstly, we must reorganize the structure of science at the FDA. Unlike many agencies, this one must be grounded in science and science must permeate its activities and decisions. Amazingly, FDA presently lacks a chief scientific officer. We believe that such a position of leadership is necessary to guide the restructuring of the agency and provide constant advice to the Commissioner. As Dr. Cassell has emphasized in her opening remarks, the FDA does not subscribe to rigorous peer review of their scientific programs and centers. To our knowledge, the Center for Drug Research and Evaluation and the Office of Regulatory Affairs have never been peer reviewed in their totality. Those centers that have been peer reviewed have been subject to this process so infrequently and not in a formal process. Secondly, agency scientists need to become reengaged with the scientific community through attendance at meetings and encouragement to publish on regulatory science and through training. Third, the presently segregated approaches to drug review and evaluation before and after approval for marketing must be integrated. Our information about how a drug works and how safely it works is fragmentary at the time of drug approval. We must exploit enhanced mega databases of clinical information, accessed in real time by agency scientists to assess drug safety post approval, and you will hear more from Dr. Nordenberg on this issue. It took 7 years from the time we first predicted that Vioxx and Celebrex would cause heart attacks and stroke for the evidence to accumulate and this message to be delivered in unequivocal terms to consumers. This reflected a failure to integrate different types of scientific information and a reliance on a passive form of surveillance for safety signals once these drugs had reached the market. We must and we can do better. Fourth, agency scientists may indeed be suspicious of safety signals but lack the freedom, the expertise and often the site where confirmatory tests must be pursued. We believe the FDA needs access to a neutral testing ground, a jet propulsion lab for the FDA. So what is a JPL? When Boeing comes to the Department of Defense with a new engine for jet fighters, DOD doesn't say wonderful, let us write you a check. They may not have the facilities or the expertise to put it through its paces in Washington but they can turn to their collaborating experts in the JPL in Pasadena and subject it to rigorous assessment. The JPL provides a technologically advanced site for assessment. It provides independence and it provides expertise. This is the model we need for the FDA--academic sites where they can interact with experts in the emerging sciences to pursue evidence that is important to the regulators to clarify drug safety or efficacy, both before and after drug approval. Presently, we approve drugs based on the ability to detect large average effects of benefit or risk in studies of large populations. This approval is clearly inadequate and essentially unchanged for the last 50 years. People vary strikingly in their response to most drugs, differences determined by the interaction of factors within their environment and their individual complement of genes. What matters most to most people is not whether there is an average affect in a population but how a drug will work with them. The FDA is poorly placed to react, either to the challenges or the opportunities of this revolution in technology and medicine. Information from these new sciences is already providing an understanding of biological networks, which just as the interstate superhighway system lets us navigate the country will allow us to understand more comprehensively how our body works in health and how and where these highways are blocked in disease. The FDA is not on this superhighway. It is stuck on a rural dirt track trying to get from place to place in a Model T. It needs a major infusion of resource to give it modern, fuel- efficient cars to get them on that superhighway. It also needs the drivers who can cope with the traffic and roads of the 21st century. We propose that it hires some drivers but gets up to speed by renting the rest part-time from the scientific fast lane, the academic sector. It is unrealistic, short of the reintroduction of the military draft, to believe that the agency could ever recruit a sufficient number of individuals skilled in these emerging sciences to assess and interpret the information that will derive from them. The inability of FDA scientists rigorously to review these products will not only result in lost lives in some cases but in others will result in the failure of critical innovative life-saving medicines to reach the bedside, as you have heard from Dr. Cassell. For example, the only relevant expertise that the agency has in house in genomics, the most advanced of these new sciences, is fragmented, uncoordinated and paltry. Expertise in virtually every other aspect of the emerging sciences is essentially nonexistent in the FDA. Our subcommittee concluded that science in the FDA is indeed in a precarious because, as Dr. Cassell has emphasized, every regulatory decision that the agency makes is based on science and the deficit must be addressed. It is realistic and desirable that the agency recruits or retrains a small cadre expert in these emerging sciences. However, their impact can be magnified if they are integrated into a larger network, a consortium of extramural scientists at academic sites--a jet propulsion lab for the FDA. Besides amplifying the science base of the agency in the area of its greatest weakness, this JPL would provide a site in which the agency expands its capacity to assess medicines using the most modern technologies and a framework for educational exchange. This initiative should also revolutionize our approach to drug development, hastening the time to drug approval and detecting more efficiently and faster problems with drug safety. This initiative will empower the agency by harvesting the talent of the U.S. academic sector, the largest biomedical and bioengineering enterprise on the planet and one funded largely by the U.S. taxpayer. In summary, we concluded that the FDA is in crisis. Its ability to fulfill its mandate has eroded to a critical degree and will rapidly deteriorate unless they are provided appropriate resources and the agency itself takes radical restructuring action. Both the Institute of Medicine and the Science Board reports identify steps that will enhance greatly the ability of the agency to guarantee the safety of the food we eat and the drugs and devices we are prescribed. This will require provision of a substantial increment in resources. However, best to do this while the levees are leaking rather than after the hurricane has hit. [The prepared statement of Mr. FitzGerald follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Stupak. Thank you, Doctor. Dr. Nordenberg, your testimony, please, sir. STATEMENT OF DALE NORDENBERG, M.D., MANAGING DIRECTOR, HEALTHCARE INDUSTRY ADVISORY, PRICE WATERHOUSECOOPERS Dr. Nordenberg. Good morning, Mr. Chairman and members of the committee. Thank you for inviting me to appear this morning. I am Dr. Dale Nordenberg. I am testifying this morning on behalf of the Subcommittee on Science and Technology of the FDA Science Board for which I served as an advisor while I was an associate director at the National Center for Infectious Diseases at the Centers for Disease Control, responsible for informatics. When I became a managing director with PriceWaterhouseCoopers 4 months ago, I am not here this morning on behalf of PriceWaterhouseCoopers nor does my testimony in any way reflect the policies or positions of PriceWaterhouseCoopers. I am a CDC-trained medical epidemiologist and my area of expertise is health information technology. I have approximately 25 years of experience in this field. Accordingly, I would like to focus my comments on the FDA's information technology capabilities and the demands placed on them. The subcommittee found that an information crisis is putting the agency's mission at risk. Although there is recent evidence of some progress in information technology of the FDA, there is a dual and compounding risk. The FDA is struggling with a too-slow modernization of its current information network while it is challenged to regulate products based on rapidly emerging sciences, particularly genomics, as you have heard from Dr. FitzGerald. Based on our evaluation, let me offer several examples of how the FDA's mission is being affected. We found that the FDA's information systems were to a great extend obsolete, unstable and unsecured. For instance, 80 percent of network servers were beyond their recommended life. An example of the consequences of an unstable technology infrastructure is the e-mail outage that occurred during the FDA's response to a national foodborne outbreak of E. coli in 2006. The FDA has lacked consistent leadership in information technology. The agency has had four chief information officers in the past 5 years. While the FDA's information technology professionals display commendable dedication, they need strong leadership, the resources to deliver quality and programs that build skills and expertise, particularly in the areas of emerging technology and science The FDA's information system which it depends on to evaluate product safety and efficacy are inefficient. Inspectors' reports are still handwritten and slow to work their way through the compliance system. The system for managing imported products cannot communicate with Customs and other government systems and often misses significant product arrivals because the system cannot even distinguish, for example, between road salt and table salt. Clinical trials data were often buried in paper-filled warehouses. The FDA cannot electronically search must of its data, which meant that possible side effects of drugs cannot be tracked and additional uses for existing therapeutics cannot be identified. Finally, the agency lacks the capability to manage the complex data information challenges associated with rapid innovation. This can affect the FDA's ability to ensure the timely and safe introduction of products in such areas as nanotechnology, genomics, wireless products, medical imaging and cell-based products that could bring hope and results to people waiting for breakthrough treatment. The FDA's information technology crisis can be solved. Adequate funding for information technology is crucial. The subcommittee believes that the information technology budget at the FDA must be increased. The overall IT budget for the FDA is approximately $200 million compared to approximately $500 million for the CDC, although the FDA regulates, as numerous people have mentioned, $1 trillion in consumer products and 80 percent of the Nation's food supply and is responsible for monitoring hundreds of thousands of sites that distribute it globally. Increasing the budget would allow the FDA to upgrade and modernize its technology, support develop of its professional staff and establish the information systems it needs to fulfill its mission. Extramural investments are critical to stimulate the private sector to develop and implement integrated information-sharing networks that support both pre-market clinical trials as well as post-market pharmacovigilance activities to evaluate safety and efficacy and to support industry innovation. The subcommittee believes that the FDA affects the lives and well-being of Americans, the health of our economy and the security of our Nation as much as any other institution, public or private. Providing the FDA with the tools it needs to fulfill its mission is essential, and in the information age, ensuring that the FDA effectively deploys modern information systems is one of the most important tools of all. Mr. Chairman, I thank you again for the opportunity to appear, and I would be pleased to answer any questions. [The prepared statement of Dr. Nordenberg follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Stupak. Thank you, Doctor, and once again let me extend my sincere gratitude to this committee and the fine work you did. We are going to go with questions with members. We will go 5 minutes and we will move this along as we can. Dr. Cassell, now that the report is accepted, your report is accepted, let me ask you, what really comes next? I notice on page 56 of the report, conclusion states, and I want to read it, ``We therefore urge the FDA to develop a comprehensive plan that includes how and when the agency will respond to these recommendations and report that plan to the Science Board. We also recommend that this plan be aligned with the 2009 budget process in order to align the resources with the proposed response.'' Is the Science Board still meeting? I mean, you are saying in here ``and to report that plan to the Science Board.'' It sounds like Science Board wants to continue to assist the FDA and American people in implementing your recommendations but are you still in existence? Do you still have some input into this process? Ms. Cassell. Thank you for asking the question. You may recall that our committee that issued this report was a subcommittee of the Science Board. While our subcommittee was considered to have issued a final report in terms of those areas that we reviewed, and so therefore we were dissolved as a subcommittee. Some of us still remain members of the Science Board. The Science Board obviously does continue to meet as advisory to the Commissioner. So as far as this subcommittee per se, we do not continue to meet or to have purpose since we were dissolved. However, we fully anticipate that the Science Board will be the body and it would be actively involved in the plan. You can rest assured, however, that the subcommittee will follow with great interest and are committed to help you and others do what is necessary to see that the recommendations of this report are implemented. Mr. Stupak. You said the Science Board expects to be involved. Ms. Cassell. Yes. Mr. Stupak. In order to be involved, the Science Board, since you are all outside of the FDA, you have to be invited by the Commissioner to work on this plan of implementation, does it not? Ms. Cassell. Yes. The Science Board is a permanent subcommittee, and Dr. Woteki and myself are members of the Science Board. So we will continue to be involved in the assessment of the FDA's plan when in fact there is a plan to address the recommendations of the report. I could just hasten to say that the subcommittee anticipated that a plan would rapidly be developed to address these urgent areas that we have pointed out. Mr. Stupak. The subcommittee expects that the plan would be rapidly implemented by the Commissioner. Have you discussed it with the Commissioner? Has he given you any assurances that the recommendations, final recommendations made, will they be implemented? What is his timeline? Has he indicated that to you? Ms. Cassell. No, not at this point in time. Mr. Stupak. Mr. Hutt, you mentioned--I want to make sure I have this right. The money the FDA should receive, you said it is a hollow government syndrome. The FDA basically receives about $1.6 billion a year, just over $2 billion when you get PADUFA fees for new drug applications. You said over the next 2 years you should double that, so are you saying in 2009 the budget then including the user fees should be $4 billion and then the year after that be $8 billion? Mr. Hutt. No. What I said was, over the next 2 years the entire budget should be doubled and the number of people increased by 50 percent. That is over a 2-year time so---- Mr. Stupak. So in 2009 we would go from 2 billion to 1 billion if you did half of it, then in 2010 you would go the extra 2 billion or to 4 billion? Mr. Hutt. Yes. Mr. Stupak. And use that money in a period of time to increase employees by 50 percent? Mr. Hutt. That is correct. Mr. Stupak. OK. Mr. Hutt. That is appropriated funds that I am talking---- Mr. Stupak. Correct. Then you say maintain at 5.8 percent yearly to maintain increases in cost of living and other fees you have? Mr. Hutt. Yes, because that is where Congress has failed to keep up with the times. FDA's budget has been basically over many years relatively flat. It hasn't kept up with inflation. Mr. Stupak. I agree, and 100 more statutes, as you pointed out, in the last 20 years. Mr. Hutt. Yes. Mr. Stupak. Let me ask you this then. I am a little confused. There is some concern expressed that the Science Board overstepped its mandated because it focused on review, not merely on scientific concerns at the agency but also the lack of resources that Mr. Hutt has pointed out, and in your report it says, I will quote again, ``Although this subcommittee was asked to review gaps in scientific expertise and technology and not to assess available resources, it rapidly became apparent that the gaps were so intertwined with 2 decades of inadequate funding that it is impossible to assess technology without also assessing the resources,'' which Mr. Hutt did. So what is the rationale for asking you to do your work, to point out the scientific shortfalls but not discuss the resources necessary to improve that scientific resource or base of knowledge since every decision, as you said, Dr. Cassell, at the FDA should be based on science? Mr. Hutt. Well, let me respond to that. At the first meeting of the subcommittee, I pointed out that it would be a disconnect to talk about pure science and not to talk about resources. That is the reason that I undertook to write a separate report on A, resources, and B, responsibilities. I will let Dr. Cassell to her views on this also. Ms. Cassell. Yes. We were in fact discouraged from looking at the resource issue but as Mr. Hutt said, it was rapidly apparent that it would be almost criminal to identify the gaps without also trying to address the resource issue. Therefore, we did give this a lot of attention in terms of our review. Mr. Stupak. My time is up, but I am sure we are going to come back for another round so I will have a chance to ask more questions. Just one comment, Mr. Hutt. If we go 5.8, double that amount to 5.8 each year, we are the authorizing committee, I am sure we are happy to do it but I think the appropriators will have a different view on it, and I would think the Commissioner would love you on his Science Board, especially with those numbers and the assistance you are willing to put forth. Mr. Hutt. Well, I am not a scientist so he will---- Mr. Stupak. But you are a financial man, which they need obviously. Mr. Shimkus for questions, please. Mr. Shimkus. Thank you, Mr. Chairman. A couple things. My response on most Federal Government operations is, we always over-promise and we always under- deliver. That is endemic of government and it is unfortunate and I think the report kind of highlights that and it is a challenge that we have to face. Dr. Woteki, in my opening statement I mentioned the 600 investigators that we moved after September 11 and they are now gone. Can you talk about that real quick, where they went to, why, what happened? Dr. Woteki. Well, quite frankly, that is not an area that we looked into. We have the statistic on---- Mr. Shimkus. But you were nodding when I mentioned that. Dr. Woteki. Yes, because it is, I think, a good indication of the resource constraints under which FDA is operating. The fact that the bump-up in inspectors, which was badly needed, that they were not able to maintain that in subsequent years is a symptom of how deeply stressed they are for resources. Mr. Shimkus. Briefly, Mr. Hutt? Mr. Hutt. Mr. Shimkus, it was a simple matter of appropriations. The appropriations were not there to sustain that number of inspectors and therefore they were lost. Mr. Shimkus. Over-promising, under-delivering. Now, I was at another meeting obviously but Mr. Hutt called you--is it Cassell or Cassell? What is the proper pronunciation? Ms. Cassell. It is Cassell. Mr. Shimkus. OK. The first question I have for you is, what are the top three areas of the FDA where you believe there could be bipartisan support for significant funding increases? Ms. Cassell. I believe first and foremost, no one could argue with the urgent situation of the information technology situation. That has to be corrected. Secondly---- Mr. Shimkus. And if I could jump in real quick. When I talked to my constituents and they say what can Congress do in an election year and smaller objectives. Information technology is I think something that in a bipartisan way there could be movement on. Continue, please. Ms. Cassell. The second would be the food importation situation and associated food safety situation. The other thing would be the drug safety and the recommendations that the IOM, the Institute of Medicine, recommended that be put in place so that we have a safe drug surveillance system. While the PADUFA funding did increase funds for those recommendations, they certainly fall short of what is needed to fully implement them, and we think this is a very serious problem. Mr. Shimkus. Let me follow up with you on the PADUFA and the user fee question. Are there avenues--I mean the appropriations is going to be the appropriations battle and I don't think it matters who is in charge. A slice of the pie is going to be always difficult. PADUFA has been successful. Are there other ways that we can use a system like that in other areas to--I mean, I think there is actually more accountability too. When you have the user folks paying in, they are going to make sure that there is a better response. Is there another way in which we can use that? Ms. Cassell. I think that perhaps Dr. Woteki might address that. Dr. Woteki. Yes. The Center for Food Safety and Applied Nutrition and CVM have not had a user fee situation. They have relied on direct appropriations, and I have to admit that as Undersecretary for Food Safety in a different administration, I testified on behalf of user fees to support our inspection area for meat and poultry. At that time it was not a viable option and at this time it arises again with respect to support for the food side and the veterinary side of FDA. The one thing that we did conclude in our review of the financial situation with respect to FDA in these two centers is the need for new appropriation and that that has to come from Congress. Mr. Shimkus. OK. It will be interesting to see what my livestock folks have to say about some of that. Dr. Nordenberg, it kind of goes back to the technology. Are you familiar with FDA's automated import entry system, Predict, and did you evaluate this in your review? Dr. Nordenberg. I am not familiar with that system. Mr. Shimkus. I think we should probably throw that in as far as concern from the subcommittee and evaluate that with respect to these concerns. With that, my chairman is not here so I could gavel it closed but I think I would get wrestled. I yield back my time, Mr. Chairman. Mr. Stupak. Thank you, Mr. Shimkus. Mr. Melancon for questions. Mr. Melancon. Thank you, Mr. Chairman. I guess I have got one general question for the entire panel. There have been numerous reports that have spoken to the demise of FDA over the period of years. Being the Cajun I am and with the storm effect, and the gentleman just reminded me of a story. After the storm, Boudreau was at his house and the water was up to the front porch. It was continuing to rain and a levee had broken and a neighbor came by in a boat and said, you know, get on board, I will take you with me. He said no, I am going to wait for the Lord to save me. And then the next boat came by and he was on the second floor and the next boat came by, he was on the roof. Finally he is on the top of the chimney and a helicopter came by and he said thanks but I am waiting on the Lord. He got to heaven's gate and he was upset and he wanted to know why the Lord didn't do anything and the Lord said I sent three boats and a helicopter, what else do you need. I mean, we have seen these reports. In each of your minds, what exactly would you suggest to the Congress, to the Administration or to anyone else that we can do or that can be done to put right this agency and move it in the direction that we have to move it to make it a viable agency to be responsive to the needs of this country? Ms. Cassell. Very quickly, that was the most appalling thing to our committee, I think, that we observed and that is, that what we were finding certainly was not new. It had been reported in the past as long ago in terms of food safety as we heard in the 1950s and in a 1991 report. So the question is why in fact have these recommendations not been implemented. One obviously is resources and lack of resources to implement them. That is one thing. So what can we do? We can make certain that we do get increased appropriations. But in addition to that, I would say that this committee as well as the Science Board can request and should request frequent updates in terms of what has been done to implement the recommendations or to find out why they are not being implemented and not to let this report and other reports that you will hear about this morning sit on a shelf and we are back here 5 to 10 years from now basically having the same conversation because I think by that time we won't have an agency to really talk about. Mr. Hutt has recommended there be another similar review in 5 years. Our report strongly recommends that there be external advisory committees, standing committees that would review processes continuously within each of the centers and to review progress in terms of implementation and to critique advances, and I think this has been one of the major deficits in the past. There hasn't been that external peer review that other agencies do utilize, welcome and in fact I think don't get in a situation that we currently have with the FDA, and I think Mr. Hutt also has some---- Mr. Melancon. And I would like to ask to have everybody continue that line, but let me ask, do you or anyone have any knowledge of these reports being done and they are just put on the shelf or did the administrators in the past or present take them, go to OMB, come to the Congress appropriations or did they just ignore the vital signs were bad? Ms. Cassell. I am aware of one recent report in 1997 called the Horn report that actually specifically looked at science within the agency and have been told that in fact it really never saw the light of day. I am--I don't know for certain about previous reports and conversations with OMB but a lot of what the Horn Report recommended quite honestly would not have required a lot of additional increased resources. Mr. Melancon. When in the light of day was suggested that this report not show up, whose suggestion was it that it not appear anywhere? Do you have knowledge of that? Ms. Cassell. I don't know. I don't know, but I can just tell you that was one of the great concerns of our committee. You can imagine the busy people I talked about. I had to continually assure them our report would make a difference, and we did repeatedly ask Commissioner von Eschenbach, will this report be taken seriously, in fact, will you consider the recommendations. This was before we had specific recommendations but before investing ourselves in the task, we wanted to be certain it wouldn't end up like previous reports. Mr. Hutt. Mr. Melancon, the basic problem is that every citizen in the United States assumes that our oldest and most important Federal regulatory agency is out there doing its job. No one knows that Congress has had a flat budget. No one knows our Field Force has been decimated. We assume that there are FDA inspectors all across the country, and when they are lost, as they have been, there is no major story about it. It is not the kind of story that our news media report every day. So it is up to all of us, everyone in Congress on a bipartisan effort, everyone in this room, all of us in this committee, to get the word out there that this is a serious problem and to bring it to the attention of the public so that everyone knows what the situation really is. Mr. Melancon. Any special specific recommendations or is that included--I mean, other than money, and we know that is one as the chairman had indicated---- Mr. Hutt. Well, I call on our national press, many of which are in this room and are extremely fine people, to focus on the budgetary aspects of FDA and to delve down deeply into, as we did, each of the centers to delve down into the functions within each of the centers such as Dale said, the Field Force. To me, the heart of FDA is the Field Force. They are the people out across the country. They aren't sitting in Washington. They are in every city in the country trying to make sure that our food is safe and our drugs have the integrity that they should. Ms. Cassell. But actually the Office of Regulatory Affairs, which would include some of the aspects of the Field Force, has never had an external review as far as we know. Mr. Stupak. Thank you. Mr. Burgess for questions, please. Mr. Burgess. Thank you, Mr. Chairman. I guess, Dr. Woteki, let me ask you and perhaps Dr. Cassell can address this as well. When we had our food safety hearings earlier or rather last year, between the USDA and the FDA oversight over food products in this country, for foreign countries, USDA has 20 percent, FDA has 80 percent. Within the USDA, the concept of equivalency exists. In another country if they don't do things exactly like we do, it still has to be equivalent to our processes, and FDA, to my understanding, does not have that same concept of equivalency. Is that something that the FDA needs as far as the oversight of imported foods? Ms. Cassell. Cathy, I think you are in a better position. Dr. Woteki. Yes, and I know Peter as well has strong feelings about this, but you are absolutely right with respect to the difference in the authorizations that FSIS has with respect to FDA for imported foods. Under the meat and poultry inspection acts, FSIS requires before any country will export meat or poultry products to the United States that they, one, have an equivalent system of inspection from a legal as well as from a functional perspective, and secondly, an inspector must actually visit the plants from which the meat that will be exported in which they are slaughtered and processed. So then in addition, the imports undergo an inspection when they actually reach our shores so there is at least two levels of inspection that occur for meat and poultry products. Mr. Burgess. At the USDA? Dr. Woteki. That is at USDA. FDA is quite different. Their authority starts at the shore, and I understand from reading some interviews with the Commissioner that there are some ideas being proposed to strengthen the FDA presence overseas. I don't know the specifics of what the regulatory authority is under which they will be doing it but I do think it is appropriate to strengthen FDA's presence overseas. Mr. Burgess. So if they need legislative authority to strengthen that oversight overseas, that would be something you would be in favor of us providing? Dr. Woteki. Most definitely, yes. Mr. Burgess. Let me just ask you this because we heard this testimony in one of our hearings earlier this year, and I was just astounded. This is just a little bit off topic, but if someone, a company that is importing from overseas finds that they have a supplier with a problem, they are not obligated to report to other suppliers that they have found a problem so if their competing entities are using that same importer, the problem may not be stopped. Furthermore, they are under no obligation to disclose that to the FDA or to any regulatory agency, and that seems like a very weak link in our chain that if we have got someone overseas who is actively engaged in the process of importing food over here and they find that one of their suppliers has put whatever in--has contaminated a product with whatever, I guess because of competitive reasons they don't want to disclose that to other importers but it seems like there has got to some way, some reporting mechanism so that the agency charged with keeping us safe can know that and at the present time I guess there is no mechanism in place for that to happen. Is that correct? Dr. Woteki. Well, Peter can also intercede on that question as well. I would just like to point out that the Grocery Manufacturers Association has put together a proposal for strengthening food safety and does deal specifically with this issue of reporting requirements and I would urge you to consider their proposals with respect to strengthening FDA's authority with respect to imported foods. Mr. Hutt. Mr. Burgess, let me just briefly comment. First, FDA has current statutory authority to inspect establishments abroad. That is in the statute. There is no limitation about inspecting in the United States and in fact FDA inspectors do go abroad and do inspect today. The problem is, there aren't enough of them to really do the job. That is the problem. Once again, it's not statutory authority. It is resources. And second, I agree completely with Dr. Woteki that a voluntary program by the industry to address some of these would be an extremely good thing for Congress to review because if industry can do it by itself, it will do a much more thorough job more efficiently and quickly. Mr. Burgess. You know, in general I would agree with that philosophically but again I was just astounded that that does not already occur, and in my mind it raises a question if there should not be some obligation, hey, we found this in this stuff that we are importing and report that to whatever the regulatory agency is, whether it be FDA or USDA. It just seems common sense that our agency would require that type of reporting if a serious problem with a foodborne illness or contaminant in a food product was identified. Mr. Hutt. Well, sir, that is a very complex issue because if you are going to set up a system of that kind, there will have to be a whole new mechanism, far more resources in FDA in order to implement it, resources that might better be spent on other things. But if industry can do it itself, then the government resources will not be needed and can be used frankly for better use. Mr. Burgess. Again, I will concede that philosophically I would agree with that but it doesn't seem to be happening and my concern is that if someone finds a problem, they just keep quiet about it and then the poor FDA is left trying to catch up the best they can. So to put it in the obligation that under certain circumstances this voluntary program that I welcome the Grocery Manufacturers Association setting up but under some circumstances they are obligated to take that data to whatever the regulatory is. Mr. Chairman, I know I went over. I will yield back. Mr. Stupak. Would you care to answer? Mr. Hutt. Well, no, I think we could continue this discussion perhaps at a later time. Mr. Stupak. Mr. Inslee for questions. Mr. Inslee. Thank you. I wanted to ask the panel about this medical device scam disaster we have a little bit, and you heard me talk about a couple tragedies that have befallen some folks and I want to talk about this one situation to just put it in context. This article in the Seattle Times, the report I was reading is about a fellow who in the 1980s developed a machine he said could cure a host of illnesses, allergy and cancer. He called it the EPFX. His name was William Nelson. The USDA basically shut him down and ordered him to stop selling the machine. He refused. He was indicted on felony fraud charges, left the country and he is now in Budapest, Hungary, and one would like to think that was the end of the story, success, mark of achievement by the FDA but we now find out that he is in Budapest, Hungary, selling these devices worldwide. He sold 10,000 of them in the United States, 10,000 of them, and here we have a situation where the FDA has identified a known problem, a known machine, a known potential disaster for people and there are 10,000 of them that we haven't succeeded in stopping this from happening. Now, to me, that is just extraordinary to think that such a known problem could exist. It is one thing to have a product, an adulterated product we didn't know about. It is another one to have it known and having a wholesale failure to solve this problem. Now, that failure could result from I think multiple circumstances. One, failure to have enforcement agents available in the field, as Mr. Hutt suggested. Two, allowing some loopholes and there are other stories of how people have used the independent review boards as a loophole to continue to allow marketing while supposedly it is in a clinical trial. Third, just a lack of IT resources to be able to track this and see where these devices were but if any of the panel could help us understand what you believe would be the source of that failure, I would like to know. Mr. Hutt? Mr. Hutt. Mr. Inslee, I am as horrified as you are by that story. As a personal matter, during my tenure at FDA I drafted the medical device amendments of 1976 and that statute had substantial legal authority for FDA to stop exactly what you are describing, and I am sure Dr. von Eschenbach is as horrified as both of us. The problem is FDA enforcement resources. The agency can't be cut back in terms of its field personnel, which, as I said a few moments ago, is the heart of compliance activity in the agency. We can't cut those back and then expect that they will be able to solve the problem that you described. So the answer is to strengthen the FDA field. That is why I feel it should be doubled in the course of 2 years, over the next 2 years. Most of those resources would go to the Center for Food, Center for Veterinary Medicine and the FDA Field Force where they have been cut back over the years so that this kind of problem could be dealt with immediately. Obviously it wasn't dealt with. It wasn't dealt with effectively at all. It should have been. But I urge you to look at the cause of why it wasn't dealt with and it is the lack of appropriations from Congress. Dr. Woteki. I might also add that in the area of dietary supplements, there are many false claims that are being made as well, and it is an area where again because of priorities and resources, the agency can't address. Mr. Inslee. Let me ask you if there is another problem here, and that is, in reading these horror stories, what I read a lot about, there are devices that have been originally approved as biofeedback devices or devices involving some seemingly benign-sounding mechanism but then go into a person who uses it who says this is going to cure cancer, this will cure chronic fatigue, this can alleviate your allergies when you have the individual using the device making these representations. Do we have a problem in the lack of consistent enforcement between the FDA and the locals, because a lot of these local people are under local licensing as physical therapists or counselors or, you know, whatever. Do we have a problem in those two agencies not working hand in glove in that regard? Mr. Hutt. Well, the local, State and food--State food and drug officials coordinate very, very closely with the Food and Drug Administration. Indeed, there is a specific provision in the Federal Food, Drug and Cosmetic Act that allows FDA to commission the local, State food and drug inspectors to act on behalf of FDA. So once again, there is not a lack of authority, but in order to make that work, FDA needs funds to help the State, local people do that job and they don't have sufficient funds to do that. Mr. Inslee. By the way, do we have extradition authority on this, these kind of cases? Here is a fellow who has been indicted on felony charges. Do we not have extradition authority? Do you know? Mr. Hutt. FDA has no extradition authority but the Department of Justice may well. Mr. Inslee. Thank you. Mr. Stupak. Mr. Walden, do you have questions? It is your turn. Mr. Walden. I appreciated the witnesses' testimony and answers to the questions. I have been listening to some of that in the background. I want to follow up on a couple of points. Let us take for granted that there is a need for more money in the agency for a moment and let us say, Mr. Hutt, Dr. Cassell, others, that money is all shoved over here to FDA. Is that just going to solve the problem? Too often government just says here is the check, gee, we are solved. Are there other deficiencies within the agency that need to be met? I have been in small business 21 years. You know, sometimes it is cultural, sometimes it is the people. Dr. Cassell, address that. Ms. Cassell. Yes. Our committee felt very strongly that just adding the additional resources would not solve all the problems. However, without them, you actually could not expect to bring about correction of the major deficiencies. One is structural, and that is, you heard Dr. FitzGerald say there needs to be a strong chief scientific officer. During our review, there was a deputy commissioner appointed but that person's title is deputy commissioner and chief medical officer. We would argue that it would be almost impossible, we think, to have a person that would be the chief medical officer of the agency and in addition be the chief scientific officer. Then we also made the recommendation that within each center there needs to be a strong scientific leader, that these individuals should be responsible for helping to develop in fact the science infrastructure, strategic plan for the different centers and a very strong vision communicated in terms of what is the science base of the FDA, how important is it within the FDA, and also then to be able to communicate and articulate that vision so that in fact you would be able to muster the appropriate resources. So that would be one of our strongest recommendations. The other, I might hasten to add, has to do with the recruitment and retention of the scientific personnel. FDA has twice the turnover---- Mr. Walden. I saw that in your testimony. Ms. Cassell. Twice the turnover rate than other agencies, and not only that, but two of the center directors, the two largest ones, in fact, left their positions during the review. Mr. Walden. Thank you. Dr. Woteki, I had the opportunity to tour the Banfield Pet Hospital facility in Oregon, and I know Mars owns Banfield. Dr. Woteki. Yes. Mr. Walden. I was very impressed with the IT system that you all used to care for animals and track their healthcare. Then I read this report about FDA's typewriter IT system, if you will. I mean, we are going back several generations. Can you compare and contrast how you all operate an IT system and is that--I mean, I would like to see that for human healthcare, by the way. It is great for animals. Dr. Woteki. Exactly. Mr. Walden. Can you talk to us about that and your recommendations and that side of this equation? Dr. Woteki. In essence---- Mr. Walden. That seems to be the other important part. Dr. Woteki. In essence, the Banfield system that you are referring to is the computerized hospital record but for your pet. Each physician, or each veterinarian who practices in the Banfield system as he or she is examining a cat or a dog is entering all of his observations or her observations into this computerized system. So it does enable Banfield to be able to do epidemiological types of studies as well as surveillance on the pet population. So it is a very valuable resource and one in which hospitals for people have also for many years had an interest in creating a similar type of system. From the FDA's perspective, as you heard, there are many aspects of the IT system that need to be addressed, and when you start de novo with a company like Banfield did in building their system, it is easier to do than to step into an agency that has been for over its whole history of introduction of computer systems building separate systems---- Mr. Walden. Right, that don't talk to each other. Dr. Woteki [continuing]. To address each individual center and even programs within the center. Mr. Walden. And one of the things we found in other oversight hearings is that some of the reports of drug interaction, problems that people have had, seem to go off into a wasteland and never get integrated in, and that is what struck me about the similarity with what you all do at Banfield is that integration. It seems to be lacking not only at FDA but in other agencies. Would it be better just to start over with a new system? Dr. Woteki. Well, Dr. Nordenberg would be more competent to answer that question. Mr. Walden. Thank you. Dr. Nordenberg? Dr. Nordenberg. This question comes up frequently, and the language around it is telling. People often speak about a system but in fact there is no single system. I reflect back on the Internet. Is the Internet a system? It is more of a system of systems that nobody owns. What the country needs and what the FDA needs to catalyze the development of is a system of systems that will share the type of data you are talking about for purposes of clinical trials and for purposes of post-market pharmacovigilance to look for adverse events. It does that by investing in extramural activities to stimulate both academia and private industry, the hospitals, the payers, whoever might be a stakeholder in the type of data that we need to collect so that at any moment they could look at that data and say oh, this product is out there and this is what is happening to our people. Now, one of the peripheral components is exactly what you are talking about. That component would be the electronic health record in the case of human beings but in the case of animals, it will be the animal health record, if you will. Mr. Walden. Thank you. I know my time is expired, Mr. Chairman. Thanks for your indulgence. Mr. Stupak. Thank you. We are going to go another round here. This is a great panel and I have a number of questions. Dr. Nordenberg, there is a lot of questions on IT. Let me ask you this question. I think we have had four or five IT officers in the last few years at the FDA so everyone brings a different system with them and none of them working together. So doesn't it make more sense to have the FDA's IT budget and that of the CDC and NIH targeted at the department level and the FDA, the CDC and the NIH become clients of HHS and you can then predict concepts at the front end of all agencies. Then if there is a consolidation of food agencies under HHS, which is being proposed by Congresswoman DeLauro, and a separate drug and device agency, you do not have to duplicate the IT systems for managing important programs for foods, drugs or devices. Does that make sense? Dr. Nordenberg. The requirement at hand is very complex. The ability to collect data from all the different points of contact, if you will, is something that no agency or department can control. In fact, if you look at the Nation, 85 percent of our infrastructure is privately owned. We talked about preparing this response. Eighty-five percent of the infrastructure is privately owned. So the question really is, how does government stimulate the development of these capabilities at the point of care, for example, in terms of electronic health record and how does it influence development of the interoperability or the ability to exchange or integrate data, and in fact HHS is leading an effort out of the Office of the National Coordinator for Health Information Technology. If you go back 5, 10, 15 years ago, we didn't have the technology required to do what we are talking about so some of this is organic and inherent within limitations of the FDA, the changes in leadership, the lack of resources. Those type of things, if we can fix those we can rapidly fix the intramural, the intra- agency challenges. But if you want to affect the extramural, these data-sharing networks, these require investment again in academia and in the points of care, if you will, so they can evolve their capability. For example, we not only would deal with HHS as a department but Homeland Security would be important here in terms of we have to deal with Customs so then you bring it above those two departments so really the overall standards are set at a department level but the various agencies interact with their stakeholders and then hopefully there's interoperability. Mr. Stupak. Well, that is what I was suggesting. If we had a department and each agency could plug in, I just think you would---- Dr. Nordenberg. Within each agency there is that--there is where the comment about the chief information officer is so critical. For example, HHS has a chief enterprise architect---- Mr. Stupak. Correct. Dr. Nordenberg [continuing]. That interfaces with each of the---- Mr. Stupak. Agencies. Dr. Nordenberg [continuing]. Agencies with their chief enterprise architect and there is that attempt to standardize. But this going to be--this is a large, complex project moving forward. Mr. Stupak. Dr. Cassell, on December 1 last year, the New York Times ran a piece on the Science Board report entitled ``Advisors Say FDA Flaws Put Lives at Risk.'' Your report on page 6 also notes that lives are at risk. How are lives at risk? Give us an example that we could identify with, clearly identify with. Ms. Cassell. I think that you and all of us have unfortunately read about these in the news over the last year and a half, many of them related to foodborne illnesses. Many in fact have been associated with situations where we should have been able to perhaps better predict the risk as well as the benefits of new therapies, and I would say that if in fact you look in almost in every area in terms of the deficiencies that we have pointed out, we say lives are at risk because you don't have the appropriate checks and balances in place. One of the things that was pointed out in the self-assessment by FDA was indeed the fact that vaccine adverse events reports today are still being reviewed manually. We also made the observation, as have others, that there has been a tremendous increase in adverse drug events that as Mr. Hutt found when he was putting together his white paper, in fact while you have this tremendous increase in adverse-event reporting you did not increase the number of the staff within FDA that were reviewing those adverse events so that in fact the time being spent on each adverse-event report to try to better understand what was going on were far fewer. I think Peter actually tried to calculate the exact number of minutes that could be spent on ones today versus several years ago. Collectively then, I think you can't reach another conclusion other than the fact that American lives are at risk in terms of almost every area where FDA oversees products. Now, mind you, this is not to frighten people to the extent today that you stop eating or stop taking your medications but rather to say in fact it is urgent the deficiencies that have been noted and they have to be corrected, to no longer delay them waiting on yet additional reviews of yet additional committees. I think the point is that they are--we are at the breaking point, if you will. Mr. Stupak. Well, 6 years ago I wrote legislation saying put an 800 number for adverse effects, not to scare anyone, just so that it can be reported. That doesn't do us any good if--again, FDA still hasn't put out the 800 number. We are still waiting 6 years later. But even if they did, there is no one to receive it or to review the documentation for doing it by hand. Let me ask each of you, and if you can do it quickly because my time is up, in 60 days if we were to come back and have Commissioner von Eschenbach come back before this committee, instead of being on the third panel I will put him on the first panel if he tells me how he is going to implement your recommendations. What is the one recommendation you would say do in the next 60 days that would make a significant change at the FDA and how they are doing? If they had 60 days, what would it be? Dr. Cassell, I will start with you and go right down the line. Ms. Cassell. I would certainly like to hear from my other colleagues. I would put IT at the first of the list, what would be done to actually address the recommendations that have been pointed out by the subcommittee. Right underneath that I think you have to address this issue of recruitment and retainment of the scientific personnel that are needed. Mr. Stupak. OK, IT, recruitment of scientists, get back the science base. Ms. Cassell. And then the importation issue. Mr. Stupak. And importation. Mr. Hutt? Mr. Hutt. I approach it somewhat differently. FDA can do relatively little to implement our report, in fact, almost nothing, without additional funding. It is up to Congress. It is not up to FDA to help solve this problem. FDA is ready to change, I am certain of that. But if you say it is the old issue that one of the members of the subcommittee, of your subcommittee said, telling people to do more with less is impossible. I believe Mr. Dingell made that point. They are going to do less with less, and that is what they have been doing for the last 20 years. So asking them now to implement a report of our nature on the basis of what they have today is asking the impossible. Mr. Stupak. Correct, but if they don't submit a plan to Congress and ask for it, the appropriators are going to look at them and say you are not serious about it and---- Mr. Hutt. That is correct. Mr. Stupak. If you go back and look at the budget---- Mr. Hutt. I agree---- Mr. Stupak [continuing]. There have been no increase requests. Mr. Hutt. The one thing they could do is lay out a blueprint and they could lay out, if they are permitted, and they may not be permitted, to put money against everything that they want to do. Mr. Stupak. The blueprint has to be with dollars just like you. You were told to look at this report but you are not allowed to look at the resources necessary. You can't have one without the other. Mr. Hutt. But Mr. Stupak, this is the real world. The Commissioner can't go against the President's budget. The Commissioner can't come in here and say the President has set this budget, he is wrong, I want a higher budget. That is unrealistic. That is not going to happen. Mr. Stupak. And if he is bound by the President, then how do we break that impasse? Mr. Hutt. I can't solve that problem. Mr. Stupak. We are working on it. Dr. Woteki? Dr. Woteki. Well, my one recommendation was going to be that you request a forward-looking plan that would say if you are going to be appropriated this number of dollars, how would you use it, and then use that to provide the appropriate oversight. Mr. Stupak. Dr. FitzGerald? Dr. FitzGerald. Yes. I believe that a plan denominated with dollars is what is requested, and I think within our report we have had the temerity to suggest ways in which the problem can be fixed. Mr. Stupak. Mr. Nordenberg? Dr. Nordenberg. I would also say that the plan is critical. I would also say that needs to be prioritized so that aspects of the technology of the infrastructure that are currently unstable and at risk should be identified and remediated as soon as possible. I look at the PADUFA language here for the IT plan. They talk about a 12- to 24-month period of focusing on completing plans. Twelve to 24 months is way too long. There needs to be an immediate assessment of things that are unsecured and unstable and have those remediated. Mr. Stupak. Thank you. My time is up. Mr. Burgess? Mr. Burgess. Thank you, Mr. Chairman. I feel obligated to say these hearings that we have where we have the head of a Federal agency in, we require that person to spend the whole day with us. I think that structurally is unfair and I just want to register my displeasure with how these hearings are structured. This is an individual who as we heard from testimony today, he is got an enormous job on his hands and we are tying up a full day, and this is the second time we have done that, and I for one want to register my displeasure. I don't want to see us repeat this trajectory again in the future. If we have to call the head of a Federal agency in, let us afford him the due courtesy that we would the head of any Federal agency, allow him to give his testimony first and then get on with the business of running his agency. Mr. Stupak. I will give you my word that in 60 days if we have another hearing and have Commissioner von Eschenbach come back to implement the plan that we are hearing about today, I think it is important---- Mr. Burgess. Reclaiming my time---- Mr. Stupak [continuing]. That if he does it--I will extend your time--then I may put him on the first panel, and then he can tell us how he is implementing it. How about that? Mr. Burgess. It should be unequivocal that he is on the first panel every single time he testifies before this committee or any other, the same that would be afforded to any Administration, whether Republican or Democrat, regardless of who is in charge in the House of Representatives. This is a foolish way that we are going about this, and personally I just take great umbrage to it and I think it reflects poorly on the subcommittee, and that is something that I think is a serious problem. We have an approval rating of 10 percent right now, for crying out loud. How are we ever going to do--we have no political capital left. How are we ever going to do the things that have correctly pointed out to us when we continue to behave in this manner? Dr. Nordenberg---- Mr. Stupak. The way to do it is to have oversight of FDA, and again, 60 days to have Commissioner von Eschenbach back and see if he is implementing his plan---- Mr. Burgess. Reclaiming my time. No problem with oversight---- Mr. Stupak [continuing]. And we will have him---- Mr. Burgess [continuing]. But for heaven's sakes---- Mr. Stupak [continuing]. On the number 1 panel. Mr. Burgess [continuing]. Let us do it correctly. Mr. Stupak. We are. Mr. Burgess. There is no precedent for doing things this way. Dr. Nordenberg, let me ask you a question about the information technology because that comes up all the time. How did we--did we just buy the wrong equipment originally or did we buy the right equipment and now it has degraded over time because we haven't invested the proper amount in maintenance or software upgrades? Where is the difficulty? I mean, it seems to me--let me just tell you my problem. We hear from people on both sides of the dais in this committee and in fact in the full Congress that the way to solve our problems with healthcare in this country is that every doctor needs to come up in the 21st century with health information technology. So we propose vast unfunded mandates on our medical personnel across the country and we can't even do it right in a Federal agency. I mean, they are going to come back to me and say look, this hearing you just had and you couldn't even do it right within probably the most premiere Federal agency in the United States government. How are we to go to our physician colleagues with a straight face and say you need to upgrade your computer technology? How did it get like this within the FDA? Dr. Nordenberg. So as I mentioned, if you look back 5, 10, 15, 20 years, everybody I think is very much aware of how rapidly technology has evolved. You take a large organization or enterprise, they start to buy technology, they start to implement it. The ability for them to keep pace with changes in technology is very difficult. So when we---- Mr. Burgess. Let me stop you there for just a minute. Is that because they are a bureaucratic Federal agency or because it is just difficult to keep up with technology? Dr. Nordenberg. It is difficult to keep up with technology. However, for the reasons you mentioned, this agency, which is one of our premiere agencies in this country, which is so critical for protecting the people in this country as well as for helping industry innovate and bring that innovation to market, it is critical that this enterprise as much as any stays abreast and so when we look at our recommendations, it is possible to go out and make an investment, and our report actually states that we believe that there are good people on the ground and with the appropriate investment they can modernize their basic infrastructure. There is no reason why that cannot happen and can't happen expeditiously. On the other hand, the extramural challenges of building these complex, multi-partner data-sharing networks is not a quick fix. On the other hand, it is absolutely critical because those networks will be the networks that enable the FDA to exploit regulatory science and to evaluate the safety profiles and efficacy profiles of the products that it regulates. Mr. Burgess. Yes, and that is--pardon me for interrupting because my time is going to run out but that is exactly what concerns me. We sat here last June in a very self- congratulatory time talked about what a good job we were doing as far as database management and providing the FDA with the tools it needed for database management so that, as you point out, the pharmacosurveillance and post-marketing studies can go forward, and now you are telling us it doesn't even exist? Dr. Nordenberg. So essentially what I would say is the way I look at this problem, you have to look at it as a supply chain problem. People--for example, the FDA is actually regulating projects that are built by complex supply chains. It doesn't matter if it is a device, a therapeutic or food. On the other hand, the information it needs to regulate these products has to come from a supply chain. If you were to--and I did this exercise in my former role at the CDC. We asked individuals, do you know what information you need to have to perform a specific task. Even that elemental question is difficult for people to answer. So we are really in a different phase, if you will, a stage of industrialization and so we need to help the FDA and other agencies and the private sector to move and leverage technology more efficiently. Start with the question, what is our information supply chain, what do we need to know, where does the data come from, how do we stimulate the development in entities we don't own to develop that capability. Hospitals--a small hospital that doesn't have that much money, how do you stimulate them to buy an electronic health record and then integrate these electronic health records? It is being worked on but it is very complex. Mr. Burgess. Let me ask you this, because you alluded just a moment ago to the 12- to 24-month time frame was woefully inadequate. Now, Mr. Stupak is saying that we need to hear back from this panel within 60 days. Are you going to be able to report to us favorably within 60 days developing this type of advanced network that we are going to have within our information technology structure? Dr. Nordenberg. Two things. I think it falls on the FDA to come back to us, thankfully, and secondly, the way I divided up this problem is twofold. One is intramural, so I believe that the FDA can assess its intramural technology deficiencies and that can be remediated expeditiously. Mr. Burgess. Let me just stop you there for a second. Have we not already done that with this panel, with this subcommittee, with this board? Was that not your job to identify those---- Dr. Nordenberg. Our job was not to get down to the nitty- gritty level, for example, of identifying how many boxes need to be replaced and what software applications specifically might need to be replaced. Our job was, the way I understand it, is to evaluate what capability does the FDA have. So for example, if there is a system that exists to look at imports but you interview and you speak with people across the agency and senior levels of multiple centers and you say are you getting the data and information you need with regards to the imports, the importation of products that the FDA regulates, and they answer universally no, the best system in the world is moot. The information supply chain does not exist or it is broken. So---- Mr. Burgess. That is your current assessment at the FDA now? Dr. Nordenberg. Our assessment, the subcommittee found that the information supply chains at the FDA are insufficient. The way it mentions the pre-market clinical trials, the post-market pharmacovigilance, the way data is flowing around imports, and this is not just a technology problem. This is a process problem. This is an information supply chain problem. When you look at the task at hand, they have to monitor what is going on at hundreds of thousands of sites be it manufacturing, warehousing, transportation. Mr. Burgess. No quarrel that it is a big job but again a few moments ago you said a 12- to 24-month time frame was unrealistic, way too much time to devote to that. What is the current amount of time? When should this subcommittee be able to come back to the FDA and have some assurance that at least we are on the right track as far as developing the right kind of information supply chain that you keep alluding to? Dr. Nordenberg. So let me try to answer that one more time. So if we look at what is inside the FDA and the environment that it controls, that could be remediated in months. Go assess what is deficient, buy the products, hire the people, whatever you need to do or dispatch your own people and remediate that. That is not solving the second issue that you are addressing, the large, complex, multi-stakeholder networks. That is not a couple of months fix. In fact, the country already is working on this at multiple levels of the government. This gets back to the chairman's comment around, you know, what level should this be controlled. So HHS is already working from a healthcare perspective. It doesn't address--well, it probably doesn't address the animals as well. So from an overall healthcare perspective, as a chief enterprise architect, it has an office of health information technology but the FDA has specific--a specific mandate around assuring product safety and product efficacy for the products it regulates, and that longer-term challenge is much more complex that than shorter-term challenge that I mentioned, so you have to look at those two things entirely separately. Mr. Burgess. So can you give us estimates on what a reasonable time period is for the short-term challenge and the long-term challenge, what should---- Mr. Stupak. I would ask you to answer that and that will have to be it. It has been 10 minutes now, Mike. Dr. Nordenberg. So the short-term challenge of assessing the intramural technology deficiencies and having a plan to mitigate that, that should easily be able to be done within 60 days. Mr. Burgess. And the longer-term challenge? Dr. Nordenberg. The longer-term challenge is--that will be--to develop a plan for that is closer probably to a 6-month effort. It is going to have to be a staged capability assessment. So what do they want to be able to do in 6 months, 12 months, 18 months, 24 months is much more complex. In fact, I believe it would require--and I believe the subcommittee has stated as such that it requires extramural collaborations both in terms of academia and the private sector to address that latter problem. Advisory groups have to be stood up, collaborations have to be established. It is not something the FDA can do alone. Mr. Hutt. And there are no funds to do it. Mr. Burgess. We are going to get you the funds. Chairman Stupak has promised that. Are we going to become an appropriating committee, because that would just be a lot easier. Mr. Stupak. If you want to go the appropriations committee, that is fine with me. I would go next to Mr. Melancon for questions, please. Mr. Melancon. Yes. My colleague was talking about I guess etiquette. After a number of hearings and a number of reports and allowing for the administrator to be the first person up, we still haven't gotten any answers, and here we are in 2008 and there is an article in the New York Times that the current agency would need at least 27 years to inspect every foreign medical device plant, 13 years to check every foreign drug plant, 1,900 years to examine every foreign food plant. You know, that is kind of disappointing to hear. And in reviewing generally the presentation that was going to be given by the administrator, I find it vague. So having this group up here to tell us what we need to be looking at, to understand what the problems are internally, whether it is political, financial or otherwise, I think it is about time that it got here because maybe now we can ask the question and hopefully the administrator can give us good, straight answers on those questions so that we can help him fix the problems within this agency. You know, it takes money, and when we are $9 trillion in projected deficits, it is hard to fix much of anything. But at the same time, if we can't protect America, what are we here for? I don't know that I have a whole lot of questions because what we are talking about, I think, and tell me if I am off base, we are going to have one-time items that are going to be pretty sizable across the board from the bottom up to get this thing back rolling and then we are going to have some numbers that are going to have to be projected out over the next couple of years so that we can rebuild the force, rebuild the technology and put all the infrastructure back in place to make this agency a viable agency. Is there any place in there, can you see any place where we can cooperate with USDA, with maybe NOAA or maybe anybody that is out there that has inspection capabilities to help us through this process or are we faced with agencies that will not cooperate with each other? Is that a problem anywhere? Dr. Woteki. Well, I can respond from the food and veterinary medicine side, and yes, there are opportunities to leverage what FDA has, particularly with respect to inspection capabilities and FSIS and also with respect to outreach to the academic community that Dr. FitzGerald spoke about. Trying to get the NIH, for example, or the Agricultural Research Service as another example or the Cooperative State Research Education and Extension Service to focus on the regulatory science needs of the Food and Drug Administration would go a long way towards helping CFSAN and CVM to have the science base that they need to do their jobs. So how to get that leverage for FDA with the research agencies to address their problems and so that those research agencies in turn in the grants that they provide to the academic community will be shaping those grants so that they are focusing again on the regulatory science needs is the kind of leveraging that FDA needs. We do make a recommendation in the report that is in the section towards the back where the individual agency reports are that providing funds to FDA that they could actually then use to leverage with the research funding agencies, partnering in essence to fund this regulatory science agenda would go a long ways towards helping to rebuild that science base that they need. Ms. Cassell. I would also just point out that NASA many years ago began to develop methodologies to detect microbial contamination in the air-handling system and the water systems of the space shuttle. Then the Department of Defense and Homeland Security have capitalized on these and have invested millions and billions of dollars over the last few years in particular on improved systems for microbial sampling of food and water and in addition have invested heavily in information technology in terms of data mining and other capabilities as it relates to handling of large amounts of data, and it would seem that there would be ways that one could capitalize on that investment that has already been made and to leverage that. But as Dr. Woteki has said, I think with the agency, i.e., FDA having resources to bring to the table to help allow that leveraging and also the personnel internally to bring that leveraging back into the agency would be extremely important, and we do make these recommendations in the report, but you are absolutely right about leveraging. We have to do this. Mr. Melancon. I yield back my time. Mr. Stupak. Thank you. Well, let me thank this panel once again. We could go on for a long time but we do have two more panels. I want to thank this Subcommittee of the Science Review Board and all the experts on the Science Review Board. For the last year you have given up many, many hours of your time and your expertise and you put in thousands of hours because you truly care about the FDA and improving and reforming the FDA as you indicated, and I think every member up here too, we have deep respect for the FDA but it is an issue that we feel needs attention, whether it is resources, whether it is--but your input is greatly appreciated and I hope the Commissioner would take your comments to heart and work with you and not just dismiss this panel and the expertise you bring to this issue because it truly for the benefit of the American people. Thank you, each and every one on this panel. You are excused. Thank you. I would like to call our second panel of witnesses to come forward. On our second panel, we have Dr. Marcia Crosse, director of the public health and military healthcare issues at the U.S. Government Accountability Office, Miss Lisa Shames, director of food and agriculture issues at the U.S. Government Accountability Office, and Dr. Donna Porter, specialist in life science, Science Policy Research Division at the Congressional Research Service. It is the policy of this subcommittee to take all testimony under oath. Please be advised that witnesses have the right under the rules of the House to be advised by counsel during their testimony. Do any of you wish to be represented by counsel? Everyone indicating--our witnesses indicate they do not. So I am going to ask you to please rise and raise your right hand to take the oath. [Witnesses sworn.] Mr. Stupak. Let the record reflect the witnesses replied in the affirmative. You are now under oath. We will begin with a 5-minute opening statement. As I indicated in the last panel, if you have attachments, they will be submitted for the record with your full testimony, so if you want to summarize it, you have 5 minutes each. Dr. Crosse, we will begin with you, please. Thank you. STATEMENT OF MARCIA G. CROSSE, PH.D., DIRECTOR, HEALTH CARE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE Ms. Crosse. Thank you, Mr. Chairman, members of the subcommittee. I am pleased to be here today as you examine FDA's capacity to carry out its mission. I testified before this committee in November on FDA's program to inspect foreign manufacturers of pharmaceuticals for the U.S. market. At that time I discussed how FDA's programs were not keeping up with the globalization of drug manufacturing. I testified about FDA's infrequent inspections, weaknesses in its data systems and challenges unique to foreign inspections. You asked that we conduct a similar examination of FDA's medical device inspection program and our findings mirror the weaknesses that we found for drugs. GAO has also examined concerns regarding the safety of the food supply, on which my colleague will testify. FDA is required by statute to inspect every 2 years all domestic establishments manufacturing medical devices classified as being of high risk, such as pacemakers and defibrillators, or medium risk, such as syringes and hearing aids. There is no comparable time requirement for inspecting foreign establishments but FDA is responsible for ensuring that they meet the same standards required of domestic establishments. Inspections of products at the border cannot substitute for onsite inspections to determine if products are manufactured under proper conditions. We found that for medical devices, just as for drugs, FDA has not met the statutory requirement for domestic inspections. FDA inspects domestic establishments about every 3 years for high-risk devices or 5 years for medium-risk devices. Foreign medical device establishments are inspected less frequently, about every 6 years for high-risk devices or 27 years for medium-risk devices. As with drugs, China is the foreign country with the largest number of establishments registered to manufacture medical devices for the U.S. market and it is in China that the mismatch between the number of establishments and the number of inspections is the largest. Almost 700 Chinese device establishments are registered, and in the 6-year period that we examined, a total of 64 inspections were performed. FDA faces particular challenges in managing its foreign inspection program. Two FDA databases contain inaccuracies that create very different estimates of the number of foreign medical device establishments subject to inspection. As we have heard today, these systems cannot exchange information, and any comparisons are done manually. In addition, inspections of foreign device establishments pose the same challenges to FDA in human resources and logistics as we found for drug inspections. FDA depends upon volunteer inspectors, has no independent translators, and has difficulty altering the travel itinerary if problems are uncovered that might warrant further review. Over the years there has been interest in using third parties to supplement FDA's inspection resources. The Medical Device User Fee and Modernization Act of 2002 required FDA to accredit third parties to inspect certain establishments and FDA has implemented two such voluntary programs. These programs allow for a single inspection that can meet the requirements of FDA and of other countries, which serves as an incentive by allowing a company that markets its devices in many countries to reduce the number of inspections. Disincentives to using third-party inspectors include bearing the cost for the inspection and exposing the company to possible regulatory action. This last point is of particular note because hiring a third-party inspector ensures that an inspection will take place whereas it could be many years before FDA arrives for an inspection. We found that few inspections have been conducted through FDA's programs. In the 4 years since FDA first cleared an accredited organization to conduct independent medical device inspections, a total of seven inspections have been conducted. In conclusion, our findings are consistent with the Science Board's findings regarding FDA's ability to fulfill its regulatory responsibilities. Our findings also support the Science Board's conclusions that the agency's work is jeopardized by information technology and human resource challenges. In addition, the small number of inspections completed by accredited third parties has not assisted FDA in meeting its regulatory responsibilities. This raises questions about the ability of such third-party programs to quickly help FDA fulfill other responsibilities. Mr. Chairman, this concludes my prepared remarks. I would be happy to answer any questions you or other members of the subcommittee may have. [The prepared statement of Dr. Crosse follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Stupak. Thank you, Dr. Crosse. Ms. Shames, opening statement, please. STATEMENT OF LISA SHAMES, DIRECTOR, FOOD AND AGRICULTURE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE Ms. Shames. Chairman Stupak and members of the subcommittee, I am pleased to be here today to discuss FDA's resources to meet its responsibilities for food safety. There have been dramatic changes in the volume and variety of foods FDA regulates. Further, changing demographics and consumption patterns underscore the urgency for effective FDA oversight. More of the population is and increasingly will be susceptible to a foodborne illness. In addition, we are eating more foods that are often associated with foodborne illness such as leafy greens. Today I will focus on three topics: GAO's designation of the Federal oversight of food safety as a high-risk area, opportunities to leverage resources in FDA's Food Protection Plan that was released last November, and tools that can help agencies address management challenges. First, regarding food safety, FDA is one of 15 agencies that collectively administer over 30 laws addressing food safety. This fragmentation, as been noted earlier, calls into question whether the government can promote the integrity of the food supply. It is a key reason GAO added the Federal oversight of food safety to its high-risk list and cited the need for a government-wide reexamination of the system. For many years we have reported on problems with the food safety system including inconsistent oversight, ineffective coordination and the inefficient use of resources. One such problem worth nothing today is the mismatch between the government's resources for food safety and agencies' responsibilities. That is, as been noted, FDA regulates about 80 percent of the food supply but receives about 20 percent of food inspection resources. To help the government as a whole, we have recommended enacting comprehensive and risk-based legislation and reconvening a council on food safety. Further, with pressing fiscal challenges, a government-wide plan can help Congress balance trade-offs when resource allocations are made. Second, FDA released its Food Protection Plan. This plan proposes several positive first steps that are intended to enhance food safety. GAO has recommended many of these proposals over the last few years such as opportunities for FDA to better leverage its resources, which is especially important for FDA's food safety responsibilities. Unlike FDA's programs for drugs and medical devices, FDA is not authorized to charge user fees for its food safety activities. Some of our recommendations are for FDA to establish equivalence agreements with other countries, certify third parties and accredit private labs for testing food. We also found that FDA's food safety activities overlap with, if not duplicate, other agencies' activities. To use resources more efficiently, FDA could, for example, authorize the Department of Agriculture to inspect jointly regulated food processing plants and conduct joint inspector training programs with USDA. It is also important to note that FDA plans to request the authority to order a food recall. As you know from the hearing your subcommittee held last spring, food recalls are voluntary. Federal agencies including FDA have no authority to compel companies to recall contaminated foods except for infant formula. In contrast, FDA has authority to recall unsafe biological products and medical devices. Other agencies that regulate the safety of products such as toys and tires have recall authority and have had to use it when companies did not cooperate. While the Food Protection Plan proposes these positive first steps, more-specific information about the resources and strategies to implement the plan would facilitate oversight. FDA officials told us resource information would be released during the budget process. We were also told that implementation plans detail timelines, actions and deliverables. FDA officials do not intend to release these implementation plans but will keep the public informed of their progress. Nevertheless, without more information, it will be difficult for Congress and others to assess the likelihood of a plan's success. Lastly, the Science Board cites numerous management challenges that have contributed to FDA's inability to fulfill its mission. GAO has identified some tools that agencies can use to address their management challenges. For example, a chief operating officer can elevate, integrate and institutionalize responsibilities to address these challenges. FDA recently spelled out the responsibilities for such a position. GAO has found that a performance agreement can promote further accountability. In addition, a well-designed commission along the lines of the Science Board can produce specific, practical recommendations that Congress can enact. In conclusion, it is imperative that FDA is able to help ensure the safety of the Nation's food supply in the most efficient, effective, accountable and sustainable way. To do so, leveraging resources and building capacity will be critical. This concludes my statement, and I would be pleased to answer any questions. [The prepared statement of Ms. Shames follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Stupak. Thank you, and thank you for your testimony. Dr. Porter, your opening statement, please. STATEMENT OF DONNA V. PORTER, PH.D., R.D., SPECIALIST IN FOOD SAFETY AND NUTRITION, DOMESTIC SOCIAL POLICY DIVISION, CONGRESSIONAL RESEARCH SERVICE Ms. Porter. Thank you, Mr. Chairman. I would like to thank you and the members of the subcommittee for inviting me to speak today. My name is Donna Porter. I am a specialist in food safety and nutrition in the Domestic Social Policy Division of the Congressional Research Service. I am accompanied today by my colleagues, Judith Johnson, Susan Thaul and Erin Williams. Today, CRS is releasing a report that is a 28-year history of the FDA's budgetary and statutory authority. I would ask that the full report be included in the hearing record. CRS takes no position on whether the FDA has the necessary resources to meet its statutory responsibilities. However, the report that we have prepared examines the agency's budget and increasing statutory authority since 1980. It is intended to help inform the debate on whether FDA's budget has kept pace with the increasing demands that have been placed on the agency. In response to the CRS request for historic data, FDA cited constraints on its staff time and indicated it would only be able to provide data to us for very recent years. The data in the report that we have completed was taken from the annual FDA Budget Justification documents, which despite some limitations provide reasonably consistent information over time. I would like to describe four figures that are in the report that I feel illustrate how the agency has fared in the last quarter-century. Figure 1 shows the 28-year history of the FDA budget and FTEs. Direct congressional appropriations to the agency, adjusted for inflation, doubled during the time period that we looked at. Over that same time, FDA received a 12-fold increase in other funds, primarily user fees. As a result, the overall FDA budget in fiscal year 2007 is 2\1/2\ times what it was in fiscal year 1980. Personnel, measured as full-time equivalent positions, or FTEs, reflects a similar impact of user fees. Comparing the fiscal year 1980 budget with fiscal year 2006 budget, the last year for which complete FTE data was available, budget authority-funded FTEs stayed about the same and the FTEs funded by user fees increased 4-fold. Overall, there was a 19 percent increase in total FTEs. In general, direct appropriations have either been in line with inflation or have gradually increased over time. The exception was in fiscal year 2002, when Congress increased direct appropriations to FDA by 23 percent in response to the domestic terrorist attacks and the anthrax scare. In figure 2, we have presented the FDA's food budget and FTEs, and let me just say parenthetically the figures in my testimony are numbered differently in the full report when you go to the full report. Overlaid on this graph are the 11 major statutes that were added to responsibilities to the food program since 1980. Funding of the foods programs does not include user fees, as you are all well aware. The slight budget increases in the early 1990s can be attributed to the passage of the Nutritional Labeling and Education Act and the somewhat larger increase in the late 1990s can be attributed to former President Clinton's Food Safety Initiative. Funding increased markedly following the 2001 domestic terrorist attacks but since then the foods budget has remained flat at its higher level. In figure 3, we have the human drugs budget and FTEs with an overlay of the 14 new major statutes adding responsibility to its program. This provides an interesting contrast to the food programs' grab that we just looked at because of the impact of user fees that have primarily supported drug review. The apparent increase in FTEs and dollars in fiscal year 1983 through fiscal year 1987 reflects an agency reorganization that combined human drugs and biological activities during that 5- year period. We determined there was no way to decipher how much was spent in each area during those years so we just left them combined. Starting in fiscal year 1994, user fees, which are the upper parts of the bars that you are looking at, have become an increasingly proportion of the overall resources available for human drugs while at the same time congressional appropriations have remained relatively flat. This figure also shows with the growing gap between the two FTEs that the overall increase in human drugs personnel is supported by user fees. Finally, figure number 4 shows some information about FDA's research program, which supports its regulatory mission. The figure represents a 15-year history of FDA research spending in the five major areas: foods, human drugs, biologics, animal drugs and devices. Overall, the FDA research budget in fiscal year 2007 has declined by about 50 percent since fiscal year 1993. Unfortunately, this was as far back as the data was available for us to use. Mr. Chairman, that completes my testimony. My colleagues and I would be pleased to address any questions that you and the committee may have. [The prepared statement of Dr. Porter follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Stupak. Thank you, and thank you all for your testimony. Dr. Crosse, let me start with you, if I may. Did your audit find that one database at the FDA showed that their foreign inspections, the roughly 3,000 that there be in existence, roughly 3,000 foreign firms and another database showed there is approximately 7,000 foreign firms sending drugs here to this country? Ms. Crosse. That is correct. One system showed about twice as many firms shipping drugs to the United States as were registered in the other system. Mr. Stupak. OK. And your report also found the FDA was having significant difficulty with their statutory mandate regarding these drug inspections. In fact, despite the experts telling this committee that drug firms should be inspected about once every 2 years, your audit found that overseas FDA was only able to inspect on an average of once every 13 years? Ms. Crosse. That is correct. We estimate that without any growth in the number of firms overseas, at the current rate they would only be able to get there about once every 13 years. Mr. Stupak. OK, and then in medical devices, FDA by statute again is supposed to inspect firms every 2 years domestically and that has taken as much as 6 years to inspect high-risk firms making class III devices? Ms. Crosse. That is correct. The firms that are making such devices as cardiac stents and the catheters that are used in angioplasty procedures, and pacemaker electrodes, those firms are being inspected about once every 6 years. Mr. Stupak. OK, and then class II medical devices, they are being inspected about once every 27 years? Ms. Crosse. At their current rate, they are getting there about once every 27 years. That is correct, for the foreign firms. Mr. Stupak. So if I am the FDA Commissioner, I am trying to figure out what to do, would it be smarter then to use the limited resources--we heard a lot about resources in the last panel and I know you sat through these panels. Would it be smarter then to direction to class III or to class II, or can you not do it that way, prioritize it by severity or health risk of the device being implanted in a human body? Ms. Crosse. Well, I think they are doing some prioritization. Clearly they are putting more resources into getting to the class III device establishments more frequently than the class IIs but they are not making that choice completely to go to the class III facilities, to get to all of the class III facilities before they do class IIs. That is a choice they have not made. Mr. Stupak. Well, the FDA recently announced last week that they are going to establish offices overseas and especially like China and India. Does the FDA have the regulatory authority overseas to do what has to be done for a class II or class III medical device inspection? Is there some question about that? Ms. Crosse. Well, certainly they don't have the same authority to demand entry at a facility overseas as they do in the United States but they do have the ability to stop those products from being imported if those manufacturers do not cooperate in an FDA inspection. I think it is a very positive thing that they are trying to establish some presence overseas because part of what these staff in the countries could do is just to verify the information that is in the registration system to even determine what facilities exist, where they are located and what they are making. Mr. Stupak. Well, besides just establishing an office overseas, should you not have some kind of verification system of manufacturing practices and certify the plant or the labs that are producing these devices, especially for a class III device? Ms. Crosse. We certainly think the inspections are absolutely needed as well. It is not just the verification. We believe that they do need to be inspecting facilities at the manufacturing site. Mr. Stupak. Thank you. Ms. Shames, let me ask you this. On page 11 of your testimony, and you repeated it but I just want to--you note, and I am quoting, ``FDA officials have declined to provide specific information on how much additional funding it believes will be necessary to implement the Food Protection Plan, saying that finalizing the amounts will take place during the budget process.'' Do you have any confidence that what will be proposed in the budget process will be anything close to what may actually be needed to implement these plans? Ms. Shames. Well, of course we will have to see what does come out in the President's budget that will be released in February. Just give some examples again from the Science Board, to update some of the guidelines, the food safety guidelines that we are talking about, the Science Board estimates that it will cost over $200 million. To update the IT system that was discussed earlier, they said that it would cost hundreds of millions of dollars. So FDA acknowledges that it is going to cost more money but does not provide any specifics. Mr. Stupak. In the past couple years' budget areas that you looked at, has the FDA ever asked for a significant amount of money to improve or implement these plans? Ms. Shames. Well, in fact, the appropriations have gone up slightly on the food side. In nominal terms they have gone up slightly. In real terms they have actually declined. The point that we have noted over the last couple of years is that GAO has made numerous recommendations where FDA could leverage its scarce resources by working with USDA to work jointly with some of the training and some of the inspections. FDA can bring in other parties as part of the food inspection, for example, looking for equivalence agreements. It is only now in the Food Protection Plan that was released a couple of months ago that FDA appeared to be moving forward with that. Mr. Stupak. Dr. Porter, let me ask you, if I may, on page 11 of your report is the following statement: ``Some members of Congress have also expressed concern over FDA funding level and have voiced their frustration at the inability to obtain clarification from the agency on the adequacy of the FDA budget.'' Your report then goes on to describe that many FDA commissioners have while in their official positions said that the agency does not need resources yet when they leave the agency they tell a different story. In fact, you quote former Commissioner Donald Kennedy who said the following, and I quote, ``I hope you and your staff will be diligent in pursuing FDA resource needs but you may have to rely on grizzly veterans like me because budget authorities at HHS and OMB specifically prohibit present officials in the agency from speaking out publicly about the need for more funding. It is important that the American public know that when they hear FDA officials say they are satisfied with their budget allocations, they have their fingers crossed under the witness table.'' Dr. Porter, as an expert on budget matters and given the extensive concerns related to the lack of resources at the FDA as described in the Science Board report, how would you advise Congress to obtain the accurate figure of what the FDA truly needs to protect the American public? Ms. Porter. Well, Mr. Chairman, those kinds of comments from Donald Kennedy and others were very consistent. There were lots more of them that we might have put in the report but it would have been totally redundant. What we did discover was, there are several alternatives that are used by other agencies in terms of communicating with Congress. One of those is the professional judgment budget that Congress frequently asks the CDC for and the alternative budget that the National Institutes of Health Cancer Center provides, and I think that perhaps there are some alternatives like those kinds of mechanisms that might be used that Congress could explore with the agency as ways to have something that doesn't go through the normal budget process and filters out perhaps what the agency believes is needed for various priorities. Mr. Stupak. Well, I know like veterans have the independent budget and then there are other organizations. Is there any organization outside of the FDA that would advocate for a different budget, an independent budget, a professional budget, whatever you want to call it, has there ever been an organization that would do that other than the Science Board that gave their recommendations today? Ms. Porter. Well, I am not aware of anything until very recently. I mean, there is, you know, considerable literature out there where people have talked about the agency's problems over the years but I think that it has been more individuals until very recently when the alliance was formed of people who are former agency officials, commissioners, secretaries of health and various other high-ranking people, who have expressed considerable concern and much of their experience is from inside knowledge of the agency. Now that they have stepped away from the agency, they are more comfortable I think with expressing what they feel is needed for the agency so that it can go forward. Mr. Stupak. Right, and Mr. Hubbard has testified once or twice before this committee but that is recent vintage. I don't know of any other organization or group. Ms. Porter. I am not aware of any other organizations per se. Well, there have been a couple of organizations out there who feel that what FDA does is that they have too much authority and they shouldn't be doing some of the things---- Mr. Stupak. Well, you are always going to find that. Ms. Porter. Those are the only other organizations I know of. Mr. Stupak. Thank you. Mr. Shimkus. Mr. Shimkus. Thank you, Mr. Chairman. I appreciate the second panel being here. Sorry about how crazy our lives are. Dr. Porter, 1980, is there a reason why 1980 was chosen? How far--I mean, in a timeline of the FDA, which is very old, why 1980? Ms. Porter. I should start by saying I climbed on board at CRS in 1980 so my---- Mr. Shimkus. It works for me. Ms. Porter. But more importantly, that was the year that Mr. Reagan was elected President and he wasn't real hip on regulatory agencies and started a major effort to re-regulate parts of the government or at least do regulatory reform, and in some of my reading back over what had happened in the last 30 years, that seemed to be a good point at which to start to look at where FDA as well as many other regulatory agencies were falling behind in terms of the budgets that they had, you know, had up until that point and the cutbacks began. Mr. Shimkus. The issue is the 1980, 1981 would be really Carter Administration budgetary numbers, fiscal year. Ms. Porter. Yes, just for a year though. Mr. Shimkus. Just raising that for the sake of clarity and transparency. Let me move on because---- Ms. Porter. We had budget documents going back that far so that partly was our starting point since we were unable to get the information out of the agency. Mr. Shimkus. Right. That is fine. Resourcing is a clear issue that has been raised, and I think that has been really well vetted. I think there is valid concern. In the chairman's opening statement, and I felt very proud to hear it, was that it is not always resourcing, it is also efficiency, it is also management, it is also transforming. You go from 1980 until today: Who heard about biologics? Who heard about the importation? Third World countries sending drugs to this country? And it is really a different era. So my focus will be, again, accepting the premise that resourcing has been vetted, what about management? And I want to turn to Dr. Crosse. You encountered in your evaluation at the FDA some problems that also were not just resource identified. Is that correct? Ms. Crosse. Yes, I would say so, although we were not doing a systematic evaluation of the management of the program. In trying to gain information from the agency, we asked for such things as copies of whatever monthly reports they put together, whatever information they might have for managing their resources and how they were allocating their workload, at what rate staff were meeting the established goals, and we were told that they don't have such reports. Now, how much of that is traceable to IT problems, I can't say, but clearly they were not setting out with the mindset of trying to manage the program and all of the human resources that they have in place. It just wasn't the way they were approaching this work. Mr. Shimkus. Which is a valid point. Our Federal employees do a great job, given the paradigm that they find themselves in Federal agencies, but many of us believe--of course, they don't have the pressure that is placed on them from the competitive market to not only provide a great service at a low cost but also when business has to do that, they are going to be held accountable for the safety of that through litigation system or through consumers fleeing the product, and so the built-in process of reevaluation sometimes you don't find in a Federal agency. Is there anything you can point to, an example of where that might be true in the FDA evaluation? Ms. Crosse. Well, I don't think I would put it down to the lack of the kind of competitive pressures that exist in the private sector. Mr. Shimkus. I am a competitive-market Republican so I believe that everything is solved by that. Ms. Crosse. I mean, I think these folks are working extremely hard to try to work within the limited resources that they have. I think to some extent, or at least in some parts of the organization, that the mindset though is more of trying to deal and wrestle with some of the scientific challenges that they have rather than taking an orientation to specifically try to manage it in the way that someone with an MBA background might. Mr. Shimkus. Right, and I think that is the flipside of this coin on resourcing is, management--I mean, we are willing to talk about resourcing with the Majority but of course there will be a desire to see results and real transformation of an agency to be able to be accountable, to be able to pull up documents, to be able to follow through the processes and not experience the difficulties that some folks had in trying to gather information, and I hope that we move in that direction. Mr. Chairman, I yield back. Mr. Stupak. Let me ask a couple questions while all the members are coming down here. We were talking earlier about not getting the numbers, financial numbers as to some of these plans. Back in November, the President's Interagency Working Group on Import Safety submitted this action plan for import safety. This is November of 2007. And then the other one again right around November, again November 2007, Food Protection Plan. Did any of you come across any evidence that these were being implemented, either the Food Protection Plan or the Plan for Import Safety? Ms. Shames. Both documents are high-level frameworks of proposed actions. At least for the Food Protection Plan, we found that those proposals are consistent with recommendations that GAO has made over the last couple of years and that is why we feel as a start it is very positive. Mr. Stupak. Well, they recognized it, but did they begin implementing it? Ms. Shames. No, no, we are told that their implementation plans have specific time frames, deliverables, accountable parties. We are told that they are not going to be made public, and while we recognize that implementation plans need to be nimble and flexible and the real world is very dynamic, on the other hand certain transparency helps in terms of accountability, allows you to see exactly what progress is being made. Likewise plans can engender some buy-in for what FDA's priorities ought to be. There is a shortage of resources and clearly there needs to be some sort of priority. Mr. Stupak. In fact, actually in your testimony you said, ``Without a clear description of resources and strategies, it will be difficult for Congress to assess the likelihood of the plan's success in achieving the intended results.'' It would be also difficult to get any kind of resource commitment from Congress if we don't know what the plan is. Ms. Shames. Exactly. Mr. Stupak. Are these the ones where you couldn't get any monetary, the resources it would take or the cost it would take to implement these plans? You could not get the financial information? Is that correct? Ms. Shames. Well, we are interested in more detailed information overall, but certainly in light what the Science Board is saying for resources, that of course is of critical importance. We have noted too though that FDA is one of 15 agencies. So if are you looking at food safety, it really needs to be looked at from a government-wide perspective. There is a structural imbalance in terms of the resources that USDA gets versus FDA despite the responsibilities that each agency has. Mr. Stupak. Let us go from food safety to drug safety, Dr. Crosse. I read somewhere that about 80 percent of the active ingredients for pharmaceuticals come from overseas now. Ms. Crosse. That is my understanding, yes. Mr. Stupak. OK. And we were talking about inspection earlier, like 27 years for class II medical devices. I am looking at your report, page 25. It is table number 2, the FDA's inspection of foreign establishments involved in the manufacture of drugs in the U.S. market, and China by far is the largest. It has grown since 2002 to a number up there, 714 different establishments, we believe, but yet they are only inspecting 10 to 15 per year, correct? Ms. Crosse. That is correct, yes. Mr. Stupak. So if you have 714, we are inspecting 10 to 15 per year, if my math is correct, that would be about 40 to 50 years before you would get around to inspecting them again. Ms. Crosse. Yes, if the rates do not increase, that is correct. Mr. Stupak. Now, India and China are the largest producers of these pharmaceutical ingredients that are coming here to the United States. When you open an office in India or China, you still need some kind of a jurisdiction to make the number and resources to make the inspections that are necessary to close that gap of 40 to 50 years down to 2 or 3 years as it is domestically, correct? Ms. Crosse. Yes, they would have to add resources to be able to do that. Mr. Stupak. The question is probably obvious, but would you explain to us why is it important that you have these inspections? What is so important about it? How do you guarantee the safety of the drug being made or the pharmaceutical being manufactured? Just explain in your own words for pharmaceuticals and medical devices, why is it so important to do these inspections? Ms. Crosse. Well, I think they need to go to the facilities to see what kind of physical infrastructure exists in these locations, to see what the production lines are, to see what kind of quality control procedures the facility has in place, how they are doing their own testing and measurement of either the drugs or the devices, to ensure that they are meeting the specifications. These are not products that one can readily just check at the border in the way that you can take a small sample from a food shipment perhaps and send to the lab. A medical device may be a very expensive piece of equipment. They may come in small quantities. You would have to essentially destroy that piece of equipment in order to test it against specifications, or it would no longer be sterile. So your best approach there is to actually see what kind of production line is in place and what kind of quality procedures that company has to ensure production of a piece of equipment. Mr. Stupak. Well, isn't this what the FDA has said in some of these reports that what the FDA calls building quality into the system? Is that what they are talking about by doing more inspections at the manufacturing site? Ms. Crosse. Well, I think that is one component of what they are talking about. I think there are a number of kinds of checks and balances that they hope to put in place but certainly inspections are one piece of that. Mr. Stupak. Thank you. Mr. Shimkus? Mr. Shimkus. Just for a second, Mr. Chairman, just to follow up on this debate. My colleague makes a good point in the setup of this discussion. We will never have enough resources. If the growth continues in these areas, I mean, how do we ever get there? So what we will need is, what is the solution? Where should we go or how do we manage this? I don't know if we have the answer but that is the great thing about the Oversight and Investigation Subcommittee. We start posing the questions, and the committee's jurisdiction, part of us will start trying to address those, but maybe it is training and really international agreements based upon training in which we are partnering with these countries that want access to our markets where we are spreading the risk and we can be assured of the quality. Otherwise if we expect it to all be done in our arena, I am not sure how we ever get there, but it is a great question and I just pose that as a solution. There are probably many more. But that is a concern. I don't know if anyone wants to comment on that. Dr. Crosse? Ms. Crosse. I would just comment, I mean, I think something like the accredited persons inspection program held great promise. It held out the possibility of a company having one inspection performed to meet the requirements of multiple countries, so many of these are international firms. I think the great disappointment there is that it has not been taken up by industry. Really, industry has been very, very slow and in fact has been slow to cooperate in allowing the inspectors to be trained to participate in this program. And so that would have provided or may still yet provide an opportunity to leverage resources where you are not having to just build the FDA inspection force, you have outside inspectors who can be accredited to do the inspections to meet the standards of all of these countries. So far it has been very, very slow in taking off. Mr. Stupak. If I may, but why would you go to a voluntary inspection plan if you know the FDA isn't going to show up for at least 27 years, or if it is active pharmaceuticals, 40 to 50 years, why would I, as a manufacturer, why would I submit myself to a voluntary thing because I know they will never come? Ms. Crosse. I think that is one of the reasons that it has not taken off more quickly. I would agree that given the very low rate of inspections by FDA in some of these countries, there is no incentive. Mr. Shimkus. I don't have anything to add other than we would just hope for better, and I appreciate the time. Thank you, Mr. Chairman. Mr. Stupak. This idea about opening offices overseas came up last fall after we had our inspectors in China and India, both the Minority and Majority staff were over there in August and they came up with great ideas, and that was just one of them. I think we will have the Commissioner next and we can explore that a little bit further with him. Thank you to this panel. Thank you very much for your time and your insight into this issue. Thank you. We would now like to call our last witness and the third panel would be Dr. Andrew von Eschenbach, Commissioner of the FDA. It is the policy of this subcommittee to take all testimony under oath. Please be advised, sir, that you have the right under the rules of the House to be advised by counsel during your testimony. Do you wish to be represented by counsel? Dr. von Eschenbach. No, sir. Mr. Stupak. OK. You are already standing, so we will take the oath. [Witness sworn.] Mr. Stupak. Let the record reflect the witness replied in the affirmative. You are now under oath, sir. If you would please give your opening statement, and thank you for being here and thank you for sitting through this hearing today. We appreciate it. STATEMENT OF ANDREW C. VON ESCHENBACH, M.D., COMMISSIONER, FOOD AND DRUG ADMINISTRATION Dr. von Eschenbach. Thank you very much, Mr. Chairman, Mr. Shimkus and members of the subcommittee. I want to truly express my gratitude to you and your colleagues for the opportunity to discuss the importance of maintaining a strong scientific foundation at FDA. This is the science that is necessary to enable the agency to not only respond to a rapidly and radically changing world but even more important to lead the future of FDA's regulatory processes and decisions. Our work must be both science-based and led by science. I have invested my entire professional career in the world of scientific discovery and development that has led and made possible fields like genomics and molecular biology and frankly a whole host of disciplines that were unknown when FDA began its mission to protect and promote the public health or even a few decades ago. However, this science now makes it possible to do things like protecting and eliminating chemical and microbial contamination of water, our food and the environment. This science can give hope to patients with incurable cancer, to those living with AIDS or diabetes or in fear of Alzheimer's, stroke or heart disease. So as science makes these solutions possible, it is and must be science that will enable the FDA to ensure that these solutions, these products are safe and efficacious when they are delivered to the American people. As Commissioner of Food and Drugs, I take that responsibility very seriously to be able to modernize and improve FDA's scientific infrastructure as it is a critical element for success in the future of our regulatory mission. But the real questions, Mr. Chairman, are what science and how best to create a portfolio that is different because by its very nature of its regulatory purpose, the science and research being conducted at FDA is unique and different from that at NIH and academia and perhaps even in industry. Mr. Chairman, based on all my experience, I know that FDA must ask the question not whether our science is excellent but more importantly, is our science aligned for the challenges of today and of tomorrow. And in order to help address that issue and issues regarding our scientific portfolio, I asked the chairman of our Scientific Advisory Board to help us look ahead. The Board reached out beyond its membership to include ad hoc experts to make up a subcommittee to conduct the review. They worked for nearly 12 months to prepare the report that we are discussing today. Let me state, I am extraordinarily grateful for the incredible hard work and productivity of this committee and they have provided important insights into both the opportunities and the challenges facing the agency. I take their report very seriously and I want to assure them and the committee that it will be used to formulate the initiatives and serve as a basis for resource investments that will perpetuate the scientific excellence of FDA as a regulatory agency. We already have work underway to address some of the challenges and opportunities that they have defined. Let me focus on one brief example to confirm the statement. Allow me to address an issue of information technology, which was a major theme of the report and something that has been highlighted repeatedly in today's testimony and even by your opening statement. FDA needs a modern information technology infrastructure to support a science-based and a science-led regulatory agency, and if I could have the chart portrayed for you or the graphic that is up on the screen. [Slide.] In 2006, when I arrived at the FDA and assessed that information technology infrastructure, we were dealing with a wide diversity of servers or equipment. Much of it had an average age of more than 8 years and was only working at about 30 percent efficiency. We rapidly began to reform and rejuvenate this information technology infrastructure, and you can already see by this year in 2008, we have made progress in streamlining the system, replacing antiquated equipment and improving the efficiency and our targeted and projected by virtue of the information technology plan that we have put in place to be able to totally modernize that system within the next two years. The work has begun but the work is not finished. We have much that needs to be done and this report will be an important contribution as FDA continues on that trajectory, not only in information technology but all the other elements of our scientific portfolio. Let me be frank, Mr. Chairman. I am here today to testify to Congress and the American people that we should be proud of the performance of FDA as it remains the world's gold standard as a regulatory agency but more importantly, I am here today to work together with you to address the challenges that we face and how important it is to continue to make this agency even greater and able to respond to the rapidly changing world around us. We are not here today because of what is wrong with the FDA but what is right and must get even better. There are nearly 10,000 individuals in that agency who serve the public every day and the caliber and quality of our current scientists is unparalleled and the commitment of our workforce is truly amazing. Every day these public servants work to protect the American people, whether it is preventing botulism in canned food or evaluating medical devices that are saving lives. Each and every employee is serving this country well, and I assure you, Mr. Chairman and the public, that the FDA employees are as committed as you to continuously improving this agency. It has become the world's standard because of our science and we are here to work together to determine how best to continue that proud tradition. The American people are blessed and grateful for the fact that their FDA has the world's finest scientists with this unparalleled track record and we need to continue to assure that they have the tools of modern science and technology available to them to continue that record of accomplishment, to expand their size and skills of that workforce and to be certain that they have state-of-the-art laboratories whether it is in the field or currently in development at our facility on the White Oak campus, and I am happy to be here today to discuss the plans that we have to achieve the mutually important goal that you have laid out for us. Thank you, Mr. Chairman. [The prepared statement of Dr. von Eschenbach follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Stupak. Thank you, Commissioner. I thank the Science Board, and I hope the questions and comments by the members up here show the deep respect we do have for the FDA and its employees. There is no doubt that some of the problems we see facing the FDA is not just the FDA's own creation. All of us up here also share some of that responsibility, and sometimes we express that frustration. It should not reflect our deep respect for those employees who work day in and day out for the FDA. Dr. von Eschenbach. Thank you, Mr. Chairman. Mr. Stupak. The Science Board report, I take it you have read it? Dr. von Eschenbach. Yes, sir. Mr. Stupak. What were one or two things that were most surprising to you with that Science Board report? And by the way, thanks for putting together Science Board. I did say in my opening it was you that put it together in 2006 and we do appreciate that, and I have more questions about that but go ahead. What were one or two things you found most surprising about this report? Dr. von Eschenbach. Well, sir, let me be candid and tell you that I didn't generally find things that were surprising about the report. I did appreciate the very significant emphasis that the report placed and the appreciation that they were able to develop about the importance and insight into many of our scientific needs. I would tell you that for example, their attention to the importance of information technologies and that infrastructure and that would be required to support our endeavor was an extremely important contribution. Their ability to lay out the scientific portfolio that helped us to be able to define and address new trajectories of science including, for example, references to nanotechnology and to systems biology, for example. Mr. Stupak. Well, let me ask you this. On page 6 of the Science Board report, and it has been quoted earlier, it says because the agency lacks resources in many key areas that lives are now at risk, and I quote directly from the Science Board: ``In contrast to previous reviews that warned crisis would arise if funding issues were not addressed, recent events and our findings indicate that some of the crises are now realities and American lives are at risk.'' You didn't find that surprising? Dr. von Eschenbach. No, sir, because I think that is consistent with all of the things that I have been stating and addressing and attempting to approach. We have recognized the world has radically changed around us. We are recognizing that we have to change within FDA to be able to adapt to the challenges. Mr. Stupak. One of things to help you change will be resources. When you were at the Cancer Institute, did you not have a budget other than the administration's budget that was, what, a bypass budget? Dr. von Eschenbach. Congress in 1971 would have passed the National Cancer Act providing unique authorities for the National Cancer Institute to have the opportunity to present a budget directly to Congress. Mr. Stupak. Is that a bypass budget or a professional budget, I think was another word we heard? Dr. von Eschenbach. Euphemistically referred to as a bypass budget. Mr. Stupak. Has there been anything like a bypass budget or anything similar to that at the FDA? Dr. von Eschenbach. I am not aware of that being available to any other agency within NIH or to the FDA. Mr. Stupak. Well, you heard Mr. Hutt's testimony about how you have a hollow government syndrome here, that in the next 2 years there should be 50 percent more employees over 2 years at the FDA, double the funding for 2 straight years then maintain a 5.8 percent yearly budget. Do you agree with that? Dr. von Eschenbach. I agree that the FDA needs additional resources. I have asked for those additional resources as I came to FDA. I think what I have continuously stated has been, it is first and foremost to define what needs to be done. That is why I asked for this report. Once we have defined that---- Mr. Stupak. But do you agree with Mr. Hutt? Dr. von Eschenbach [continuing]. Create the business plan. Mr. Stupak. But do you agree with Mr. Hutt's estimations what you need? Dr. von Eschenbach. I cannot agree with Mr. Hutt's estimations because they are just that, estimations. Mr. Stupak. OK. Then what---- Dr. von Eschenbach. I need to be able to bring forward an appropriate investment strategy that would---- Mr. Stupak. What is your investment strategy then for the 2009 budget? Dr. von Eschenbach. That will be presented by the President next week. Mr. Stupak. OK. But what is your recommendation? You said you have made recommendations. What was your recommendation to the OMB, Office of Management and Budget, to Mr. Nussel for the FDA to improve resources? Dr. von Eschenbach. My involvement was to present to the Secretary---- Mr. Stupak. OK, Secretary Leavitt. Dr. von Eschenbach [Continuing]. Request for additional resources. Mr. Stupak. OK. Did you request additional resources? Dr. von Eschenbach. Yes, sir, I did. Mr. Stupak. How much? Dr. von Eschenbach. That will be presented in the President's budget. Mr. Stupak. So you don't want to tell us? Dr. von Eschenbach. It is the purpose of the President to present his budget next week. Mr. Stupak. Oh, sure, and the President may agree or not agree with you so we would like to have a yardstick, a baseline to measure by. Did he accept your numbers or did he go lesser or more? Dr. von Eschenbach. I will along with you await the President's declaration of his budget. Mr. Stupak. I don't have the President here so I guess I have to ask you. What is the amount you---- Dr. von Eschenbach. I don't have the President here either, sir. When he is presenting his budget---- Mr. Stupak. So you are not allowed to testify what your request is? Dr. von Eschenbach. I am not in a position to testify today to the President's budget. Mr. Stupak. Why aren't you in a position to testify? Dr. von Eschenbach. Because he hasn't released it yet. Mr. Stupak. So you are not allowed to say anything until the President releases his budget? Dr. von Eschenbach. After he releases the budget, we can speak to the budget. Mr. Stupak. So then you will come back then in 60 days and talk about his budget? Dr. von Eschenbach. I will be happy to come back in 60 days once the budget is released. Mr. Stupak. Will you come back in 60 days to talk about implementation and what you have done to implement the Science Board's recommendations? Dr. von Eschenbach. Yes, sir, I look forward to that and I would also even at this point assure you that we have been consistently working to both implement many of the things that the report surfaced as important agendas for FDA and in addition to that following the report's presentation to the last meeting of the Scientific Advisory Board and that report became public, I disseminated that report within the agency and have asked each of our center directors to directly respond to the recommendations in that report and bring forward their operational plans. Many of those things are already underway. Mr. Stupak. Great. Dr. von Eschenbach. And I would be happy to come back and report---- Mr. Stupak. Is 60 days enough time? Dr. von Eschenbach. In 60 days I will be able to report to you progress and I will look forward to continuously reporting progress. This is not going to get fixed, Mr. Chairman, within one intervention. Mr. Stupak. Oh, I know that. Dr. von Eschenbach. It will be an ongoing effort with ongoing investment in the resources that it is going to take. It is not a 1-year budget solution and it is not a plan that can be accomplished in 1 year. Mr. Stupak. Right. And you know me. I will follow through. This is I think our fifth hearing with the FDA and I expect at least five more before the end of the year. Since I have to ask Secretary Leavitt when he comes about the budget and I know he is coming in a couple weeks to talk about the whole of the HHS budget, we will ask about FDA. Let me ask you this and then I will turn it over to Mr. Shimkus for questions. Are you pleased with what the President will be presenting in his budget for the FDA? Dr. von Eschenbach. Well, when the budget is released by the President, then I will be in a position to be able to comment. Mr. Stupak. So you can't determine if you are pleased or unpleased until it is released? Dr. von Eschenbach. Not until the President releases the budget. Mr. Stupak. You guys got to lighten up. OK. Next for you. Mr. Shimkus. Thank you, Mr. Chairman. Dr. von Eschenbach, thanks for coming. You became the head December 13, 2006. I really do applaud those political appointees who answer the call to serve in the final cycles of an Administration. We saw a lot of people leave in the last year, the last 2 years to do other things. Thank you for serving because government service is not all it is cracked up to be. It is very difficult and very demanding and I do appreciate it, and thank you. As director of the National Cancer Institute, a nationally recognized--I can't pronounce it. I am an infantryman, you are a Navy guy. Infantrymen, we don't go past two-syllable words. So urologic oncologist and a cancer survivor listed in the Best Doctors in America publication, and again, a lieutenant commander in the United States Navy Medical Corps. So you come with a great background of service as a practicing physician but also as you move up the ladder you get involved in major medical institutions and the management aspects. I wrote down in listening to the question, I really have--we of all people, I don't--we never have anybody who comes to Washington, D.C., asking for less money. We never do. And I don't know of a single scientist who would ever tell anyone I want less money, because the more money they have, the more science and the more research they can do. It is just a fact of life. And then we have the budgetary authorization battles and the appropriation battles. We have been trying to focus on management and things that we can do. You were starting to talk about change and adapt. Are there some change-and-adapt issues with the Science Board that you can or already have started implementing that creates quality assurance and efficiencies that you would like to bring out? Dr. von Eschenbach. Absolutely, Mr. Shimkus. I think it is extremely important for me as, if you will, the CEO of the Food and Drug Administration, to reflect to Congress and the American people that it is not just how much money we spend but how we spend it, and there are extremely important management issues which need to be addressed at FDA in addition to the resource issues, and I have been attempting to respond to both of those challenges. One of those things I did was to bring a highly skilled, highly reputable chief operating officer, which is in fact consistent with many of the reports and recommendations you have heard today. That chief operating officer has gone through a very systematic process of us being able to create better administrative and management infrastructure. Let me talk about that specifically with regard to then the hiring of a chief information officer. We have heard that FDA has had many chief information officers in the past but under this new system we brought a chief information officer in who was not only highly skilled but we empowered him to be able to start an integrative process across the agency which would create the interoperability that is necessary if we are going to have the right kind of data systems and databases with which to extract information that we can make intelligent regulatory decisions with. What you saw in that display I put up initially was what was inherited in 2006 was a highly decentralized system where individuals were buying servers and infrastructure for very specific needs and they were only running at 30 percent efficiency. They were spending over $200 million a year just to maintain what had already become antiquated equipment, and it wasn't an issue of how much money do we need to spend in IT, we needed to spend more and we have spent more, but how can we spend it even better, and that is what you are beginning to see in that trajectory, that even within 2 years we have made great progress in beginning to create an entirely new IT infrastructure. But we didn't stop there. We brought everyone together in terms of what we now call the Bioinformatics Board, which is co-chaired not only by our chief operating officer but most importantly by our chief medical officer, to really ask the question, what are the right programs that need to be running on that IT infrastructure so that we will accomplish mission. And one of the things that we have been working on in that regard that is indirectly aligned with Congress's issues and concerns around the implementation of the Food and Drug Administration Amendments Act is what we would call sentinel network, and this provides us the information or technology infrastructure and programs that we will be able to do post- market surveillance, which I know is an issue of great importance to this committee. Mr. Shimkus. Thank you, Mr. Chairman, and I yield back. Mr. Stupak. Thank you, Mr. Shimkus. Mr. Dingell for questions, please. Mr. Shimkus is finished. Mr. Dingell. Mr. Chairman, I am happy to defer to Mr. Shimkus first. Mr. Stupak. He already had his questions and now he is deferring to you. Mr. Dingell. Very well. I want to thank you, Mr. Shimkus, and I thank you, Mr. Chairman. First of all, Mr. Chairman, I ask unanimous consent that the record be kept open to include a letter from me to Dr. von Eschenbach and his response to us. Doctor, welcome to the committee. We have a list here of items which the Science Board makes report to you and quite frankly, it indicates that FDA has very little capacity to carry out its mission. We will submit a letter to you asking how much it will cost each of these items to be fixed and what you intend to do about each of these. Now, the Science Board had an interesting remark to make. On page 21 it says, ``During the past 35 years a decrease in funding for inspection of our food supply has forced FDA to impose a 78 percent reduction on food inspections at a time when the industry has been rapidly expanding and food importation has exponentially increased. FDA estimates that at most it inspects food manufacturers once every 10 years and cosmetic manufacturers even less frequently.'' Is that true? Dr. von Eschenbach. It is true, sir, that we need to improve our---- Mr. Dingell. Thank you. Now, Doctor, I note that FDA inspection of foreign and domestic food establishments is referred. In the table it says that FDA conducted 35,000 foreign and domestic establishment inspections in 1973. By 2006 this number had fallen to 7,783. In recent investigations by this subcommittee, your staff told ours that the volume of imports is doubling every 5 years. Is that true? Dr. von Eschenbach. The imports are doubling and our foreign inspections are increasing as well, sir. Mr. Dingell. It is true. Now, Doctor, the Science Board report suggests addressing food safety issues will cause upwards of at least $250 million. Do you agree or disagree with that statement? Dr. von Eschenbach. Mr. Chairman, I believe that it is going to require an investment over time for us to be able to continue to implement our food protection plan which we presented. I have requested additional funds for this and have applied funds in 2008 and will be applying funds in 2009 in a continuous trajectory. Mr. Dingell. Now, Doctor, the Science Board again says, ``FDA does not have the capacity to ensure safety of food for the Nation.'' Is this a true statement or not? Dr. von Eschenbach. No, sir, I don't believe that is true. Mr. Dingell. You don't believe it is a true statement? You disagree? Dr. von Eschenbach. I believe we are assuring the food safety. Mr. Dingell. Let me quote it again. It says, ``does not have the capacity to ensure the safety of food for the Nation.'' Do you agree with that statement or not? Dr. von Eschenbach. No, sir. Mr. Dingell. You don't agree. Dr. von Eschenbach. I believe that we need to continuously expand and improve our capability to respond to the changes that are occurring in our food supply. Mr. Dingell. You admit the huge decline in the number of inspections made both of domestic producers, manufacturers and processors and of foreign processors and that goes across food, drugs and cosmetics. Is that not true? Dr. von Eschenbach. Yes, sir. I believe---- Mr. Dingell. Very good. Dr. von Eschenbach [continuing]. We need to increase foreign inspections. Mr. Dingell. Now, the finding, it says this, ``Recommendations of excellent FDA reviews are seldom followed.'' This is page 56. Do you agree with that finding or not? Dr. von Eschenbach. Sir, under my opportunity to lead this agency, I have asked for external reviews and I have responded to this external reviews including the Institute of Medicine report, including our ability to bring forward---- Mr. Dingell. Doctor, is the statement true or not? Dr. von Eschenbach. I can only speak to my experience, sir. In my experience, I have---- Mr. Dingell. So you are telling me that the statement is not true? Dr. von Eschenbach. I cannot---- Mr. Dingell. You are going to get some mail on this so you better answer this question carefully. Dr. von Eschenbach. Well, I appreciate the question, Mr. Chairman, but I am attempting to respond to it in the context of my experience at FDA, not that of my predecessors. Mr. Dingell. They come forward, Doctor, with another finding. ``FDA cannot fulfill its mission because its scientific base has eroded and its scientific organizational structure is weak,'' page 3. Do you agree with that statement or not? Dr. von Eschenbach. No, sir. I believe the scientific base of the FDA is strong but it needs to be stronger to respond to the emerging challenges and changes that are occurring in the world in science and technology and in the products that we are called upon to regulate. So it is not that it is bad, Mr. Chairman. It is that it is at a level of excellence that needs to continue to improve and continue to expand. Mr. Dingell. Now, I understand that you have not been allowed to comment on the Science Board report, suggesting that addressing food safety issues will cost up to $250 million. Given that, I am curious. How can GAO expect to get the numbers on these matters either from you or the Administration? Dr. von Eschenbach. Well, Mr. Chairman, there is nothing that says I have been told I cannot comment. What I have tried to express very carefully is that it is important to define what needs to be done and how that process can be carried out-- -- Mr. Dingell. Well, let us---- Dr. von Eschenbach [continuing]. And then assign a cost to that. Mr. Dingell. Let us end the remaining time which I have and have you tell us how much will be the amount of money which you will require to carry this out properly. Dr. von Eschenbach. Mr. Chairman, what I am attempting to do is to create a plan which I have promulgated, the Food Protection Plan, which has both authorities that are going to be required from Congress as well as programs that are going to require additional appropriations. We will build the business plan as to what the cost of those investments will be and their source. Some of it will come from appropriations, some of it will come from user fees---- Mr. Dingell. Let me raise one last question. Regarding your IT system, they made some very adverse comments on your operations in disaster recovery plan having no continuity in your agency's IT system. Were you surprised by that finding, yes or no? Dr. von Eschenbach. No, sir---- Mr. Dingell. Why not? Dr. von Eschenbach [continuing]. And we are in the process of addressing that and remedying that. Mr. Dingell. Now, Doctor, then on page 5 the report notes that FDA has inadequate emergency backup systems in place and recent system failures have resulted in loss of FDA data. Is that true? Dr. von Eschenbach. Yes, sir, and we are continuously remodeling---- Mr. Dingell. And it also---- Dr. von Eschenbach [continuing]. And improving that. Mr. Dingell. It also says that there is no backup of these records which include invaluable clinical trial data. Is that true? Dr. von Eschenbach. The records that we have been receiving and previously have been primarily in paper form and we need to transition to---- Mr. Dingell. The answer really to the question I ask is yes or no, is there backup or is there not? Dr. von Eschenbach. There needs to be better backup. Mr. Dingell. Thank you. Mr. Chairman, I have used your time. Thank you. Mr. Stupak. Thank you, Mr. Dingell. Mr. Barton for questions, please. Mr. Barton. Thank you, Mr. Chairman. Thank you, Dr. von Eschenbach. I have been watching the hearing on television as I have scurried before the three subcommittees that are in action at one time. Mr. Dingell is setting a record for number of subcommittees meeting concurrently and it makes it hard for he and I both to be all three places. Let me start out by asking about the genesis of this subcommittee report. How did that come about, the report that we are reviewing today? Who originated or asked that report be done? Dr. von Eschenbach. I did, sir. Mr. Barton. You did? So this is something that you asked for? Dr. von Eschenbach. Yes, sir. Mr. Barton. Were you forced to ask for it or---- Dr. von Eschenbach. No, sir. Mr. Barton. You did it of your own initiative? Dr. von Eschenbach. Yes, sir. Mr. Barton. Now, would you have been surprised if this subcommittee had reported back that everything was just hunky- dory and pink and rosy and they had more money and people and systems were operating at 100 percent efficiency and they were really insulted that you asked them to waste their time doing this report? Would that have surprised you if they had given you that kind of---- Dr. von Eschenbach. Shock might be a better term. Mr. Barton. So it is not a surprise that you have asked this subcommittee to do a thorough analysis of the FDA and how it can be improved and what its shortfalls were and, and lo and behold, they gave you such a report. That is kind of what you expected, isn't it? Dr. von Eschenbach. Yes, sir, and I think it is important for me to again compliment the committee because the fact of the matter is, I have recognized as having been part of the world that created many of the opportunities that are now available to us to save lives and to improve the health and welfare of the American people the gateway or the bridge from all that discovery and that development whether it is nutrition or whether it is drugs that are going to eliminate suffering and death due to cancer, none of that is going to be reach the American people unless it goes through the FDA, and the FDA must be the bridge and not the barrier to that new future, and FDA's ability to do that is based on its science. It has always been a science-based regulatory agency and I perceive it needs to be also a science-led regulatory agency, and first and foremost with the question to look at our scientific portfolio and ask experts who have that understanding and perspective of that full continuum of discovery, development and delivery to look at that portfolio and advise me as to where that portfolio needs to be modified, where there were gaps, where there was overlap, and even more importantly, where there were opportunities to leverage that portfolio with science and technology that was occurring in other areas like the NIH where $28 billion has been invested in science and in industry and other places and they did an extraordinary job and a service to the agency to come forward with the report that---- Mr. Barton. Now that you have this report, have you put it on the shelf and said well, good, I have it---- Dr. von Eschenbach. No, sir. I think my track record affirms the fact that I asked for reports and accept reports and then go about the process of working with the agency to properly implement those---- Mr. Barton. So you are interactive with the committee and you are meeting with them and your associates at the FDA are meeting with them to prioritize an action plan and develop it. Is that---- Dr. von Eschenbach. Well, it is important to point out that the Scientific Advisory Board has been in place since the 1990s. They have been charged by charter to have responsibility to advise the FDA with regard to its scientific portfolio. Mr. Barton. Would you hope that this committee would work with you and your agency and develop a bipartisan plan of action where we could give you additional funding in high- priority areas and actually put something before the Congress and the President at the appropriate time that, you know, here is where we need more resources and here is how we plan to spend the money and here is the technology. Would that be something you hope the committee does or do you want us just to yell at you and point fingers and try to do gotcha stuff? Dr. von Eschenbach. Mr. Barton, I have enormous respect for this committee and I think from the time I have engaged with the committee and its staff, I would look forward to every opportunity to work together so that we can create the right plan and---- Mr. Barton. It is obvious---- Dr. von Eschenbach [continuing]. Implement it in the right way in service to the American people. That is what we are both here for. Mr. Barton. The task force has shown some real areas that need to be improved and I think Chairman Dingell pointed some of that out. So our job is to figure out what we need to do and the best way to give you the resources and if necessary make statutory changes in terms of structure so that the FDA can be the best that I can be. Dr. von Eschenbach. And if I can comment on that, Mr. Chairman. For example, we have already issued our Food Protection Plan, which is along the lines of being able to accomplish what you just said. In that plan, there are requests for authorities that the FDA doesn't currently have. Those are specific issues for this committee and we look forward to working with you on those authorities. Mr. Barton. My time has expired, and I am on regular time. I am not on chairman time so I need to--just one final thing. When Chairman Stupak was asking about your budget submission to the President, you had declined to answer for the simple fact that the President's budget has not been made public, and that is kind of traditional practice that Cabinet agencies and commissioners don't get out ahead of the President, let him offer the budget and then you can come up here and comment on it and at the appropriate time. You will be happy to do that. Isn't that correct? Dr. von Eschenbach. Correct, sir. Mr. Barton. So you weren't being mean to Chairman Stupak, you are just not allowed to comment until the President's budget comes out, and if it were a Democratic President, a Democratic-appointed Commissioner, it would be the same thing. Isn't that true? Dr. von Eschenbach. That is correct, sir. Mr. Barton. Thank you. Mr. Stupak. Democrat or Republican, I would ask the same thing. You could at least tell us if you were pleased with the recommendation without giving a number. With that, let me go to Mr. Inslee. I think you were next. Mr. Inslee. Thank you. Doctor, I want to ask you about these electric energy devices you may have heard me talking about in my opening statement. Dr. von Eschenbach. Yes, sir. Mr. Inslee. And I want to just take this one case as illustrative of what may be in the realm of the possible. I told the story about a fellow who actually had a device that was subject to false claims. USDA shut them down. He refused to stop selling it. He actually left the country. I am told there is a felony warrant for his arrest. But he is still over in Hungary selling these products and according to an article has sold 10,000 of these in the United States. To me, it is just really flabbergasting that we can have somebody who has been identified as a miscreant who is selling thousands of these without our ability to really stop that, and I wonder if you want to give us your thoughts as to whether that is a failure of our system and if so, what would you identify what needs to be done to solve that? Dr. von Eschenbach. First of all, when I listened to your story as a urologic oncologist who spent my entire career taking care of cancer patients, I have witnessed how they can be preyed upon by these kinds of fraudulent and false hopes and devices, and I am as committed as you are to a system solution to this problem. I think it is really a systems failure and a systems solution, that first and foremost we need stop this at the source. Now, FDA has been working with foreign regulators, our counterparts in these other countries, so that they can take appropriate action. Now, obviously there is some heterogeneity, depending upon which country you may be interacting with, but I want to assure you and the committee that we are going right to those foreign sources to get them to intervene. Number 2, we have put an import alert in place for this specific product so that we can alert the borders to stop those products at the border, whether it is, you know, customs and border protection or whomever but we will stop those at the border. Clearly some of those get through and we need to improve that as well and then once they are here we have to detect them, and local authorities have the jurisdiction and the authority, since we have taken action against that product, to eliminate it and prosecute anyone who is marketing is under those false claims that you alluded to that it would cure their cancer. So I think we have steps but clearly there are times when those steps are not sufficient, and that is why in our strategy I talk about being engaged in the total life cycle of products, I talk about a process that builds in prevention, intervention and response as a continuum and in that way really attempt to really protect and promote the health of the American people. Mr. Inslee. Sometimes bold action can help in this regard too and send signals. Is there an extradition possibility with this individual, do you know? Dr. von Eschenbach. I can't tell you about extradition in terms of the specific country that he is in. Mr. Inslee. He is in Hungary, I am told in the newspaper. Dr. von Eschenbach. I don't know enough about the law. Mr. Inslee. How would that work? Would you go to the Justice Department and request them to pursue that, or how would that work? Dr. von Eschenbach. I cannot---- Mr. Inslee. Or is that just their initiative? Dr. von Eschenbach. I cannot answer that for you at the present time. I don't know, and I would have to get our legal people to tell me what that step would be. I do know that we have been--in these kinds of cases we work with the local government for them to take action directly. Mr. Inslee. May I ask that you pursue that and let me know what the options are? You know, I am just going on what I have read in the newspaper but it would seem to me if that is a legal course of available to the United States, it is a statement that we should make, and I hope you will let me know what your progress is on that. Dr. von Eschenbach. I would be happy to do that, sir. Mr. Inslee. How much of this--we have been talking about resources. How much of this is a resource issue? You heard previous testimony about needing field agents to really track this down and it seems to me pervasive. You look at the Internet and these things are all over the place with sparks and whistles and, you know, obviously these people are blatant out there. They are not trying to hide this. They want to advertise it. How much of this is not having agents in the field to go after these problems? Dr. von Eschenbach. Well, again, I want to emphasize the fact that I agree that we need to increase our resources, our Field Force, our number of inspectors, but I think it is important to go beyond just looking at the numbers of inspectors and understand how we will address the problem. There never will be enough inspectors. When we look, for example, at the number of foreign facilities that are producing products that we must regulate, we recognize that what we need to do is not just increase the number of FDA inspectors but to increase their effectiveness. One is by doing that on a targeted risk-based approach that they inspect the right things that are of greatest concern. Number 2, that we leverage their impact, and we have asked, for example, for opportunities for us to have the authority to certify third parties that we could oversee and control but they could do additional inspections, to work with foreign governments where their own infrastructure, their own regulatory processes, their own inspections would be complementary and integrated with ours. We have worked with States here within the confines of the United States where they are doing a significant number of inspections under FDA's direction and with FDA's certification, if you will, and that has significantly leveraged our impact. We may do 7,000 inspections and States have done approximately 8,000, so we are doubling impact but not necessarily doubling the number of FDA inspectors. And I express that because I want the committee to appreciate that I am not looking at this simply from the point of view of if we had this amount of money, we would hire this many more inspectors. I think we have to think more strategically than that, and it is a matter of how can I maximize the effect of the inspectors, not just increase their number. Mr. Inslee. Well, we hope you will put the FDA in zap mode on this, and good luck. I would like to help you out. Thank you. Mr. Stupak. The gentleman's time has expired. He has asked all day about this EPFX. Why does the FDA even allow them in the country? You allow them in as a stress reliever. Dr. von Eschenbach. Well, we have an import alert to keep them from coming into the country. Mr. Stupak. Pardon? Dr. von Eschenbach. We don't allow them into the country. Now, that is not to say---- Mr. Stupak. According to the article, they are a stress reliever. If they are being abused, why would you even let them in? Dr. von Eschenbach. Mr. Chairman, we do not allow them to come into the country. There is an import alert that they would be stopped and seized at the border. You clearly have indicated---- Mr. Stupak. Whether they are stress relievers or not, so if they are labeled as stress relievers you are going to seize them? Stress relievers. FDA has licensed them as stress relievers. Dr. von Eschenbach. If there is a claim made that they would, you know, cure a disease like cancer---- Mr. Stupak. No, stress. Dr. von Eschenbach. There are certain products that can be marketed that don't make claims that fall under the Food, Drug and Cosmetic Act and those things are not subject to our regulation based on the law and based on our statutes. Mr. Inslee. Mr. Chairman, may I ask for an additional 1 minute? Mr. Stupak. Sure. Mr. Inslee. You have really brought up an important issue here. What I sense is going on here is that these machines are being--when they come in, they are identified as stress relievers or, you know, some other type of benign nomenclature, and they are being--you are getting through the sieve or the net through that. Then the folks overseas and other places basically advertise them on the Internet and by the providers themselves who tell the patients, who tell the victims this isn't just a stress reliever, it is a cancer reliever, it is an allergy reliever, it is an osteoporosis reliever. So the problem is, I think there is this missing part in our net where you get the machine in under this benign nomenclature and then the patient is told that it has all these other miraculous attributes to it, and I think we need to think about how to seize that where basically you have to go say at the border somehow or some other way, if there is anybody else making claims about this machine, you can't put it in, and this is where I think there is a little slip between the licensing and the practitioners and the sales of the machine. Somehow we have got to get on top of this where people are using these machines for nefarious purposes. They know that is going on on a repeated basis and we have to be able to shut those down for import. Does that make sense? Dr. von Eschenbach. Yes, sir, I understand. Mr. Stupak. Mr. Burgess? Dr. von Eschenbach. I will get you the specific---- Mr. Stupak. I am sorry. Were you done? Dr. von Eschenbach. That is OK. Mr. Stupak. Mr. Burgess for questions. Mr. Burgess. I hate to prolong this agony but, Mr. Chairman, can I just ask you, is there not an ongoing investigation by this Oversight and Investigation Subcommittee on said machines? Mr. Stupak. We just started to gather the information. Mr. Burgess. So there is an investigation in progress, and honestly, I don't want to devote any more to it but I think both the FDA and the Oversight and Investigation Subcommittee are on the job and this is something that will be correctly elucidated at the proper time. Commissioner, I just want to thank you for your forbearance and staying with us all day. You have lost well over half a day from your primary job at the agency and I know there is a lot of stuff facing you and it does seem unkind that we have tied you up so long. Let me ask you, you have talked to Ranking Member Barton about your activities vis-a-vis the report. At some point this subcommittee will receive the FDA's formal response to the report that was generated. Is that correct? Dr. von Eschenbach. Yes, Dr. Burgess. I actually would welcome the chairman's earlier suggestion that there be a subsequent hearing of which I have the opportunity to come back and brief the committee or present to the committee FDA's progress and initiatives that are directly responsive to many of the issues that the report has addressed, so I welcome that. I would do that formally in the context of a hearing. I would be happy to do that informally and simply as it relates to a progress report or whatever the committee wishes. But whether it is to this committee or not, I fully expect to continue to inform the American people and continue to present what FDA's process and progress have been because I am not interested in plans, I am interested in progress and outcomes, and the plans are only to guide me as to how to accomplish those outcomes. Mr. Burgess. And just to reiterate the ranking member's point, this was an activity that was initiated by the Commissioner's office. Is that correct? Dr. von Eschenbach. Yes, sir, absolutely. Mr. Burgess. You know, we heard a lot about information technology and the problems that you face with the system you inherited, so presumably that would be one of the top three things that will come out of this activity, and I do want you to talk about that but I would also like to hear just briefly what the other--if we are going to talk about the top three areas as we develop our short-term, mid-term and long-term goals, where those issues lie. Dr. von Eschenbach. Thank you for referring to that. Let me frame the answer by saying I have assessed the FDA from the first moment I arrived and I came rapidly to the conclusion that the two most critical assets at the FDA were its people and its infrastructure, its tools, IT tools, because essentially we spend 80 cents of every dollar on people and it is in fact what is most critical to FDA's success is to have the right kind of people and sufficient numbers of that. So my first priority was to address the workforce and what was going to be required to nurture and develop that workforce, and you have heard on other occasions about my plan for, for example, a very expanded credentialed, formalized FDA fellowship program as one way of bringing additional intellectual capital into the agency. The other thing that was apparent was that they needed the right tools and information technology tools were the most critical if we were going to do post-market surveillance. If we were simply going to be able to process the data, information that is coming to the FDA in the form of a drug application or by virtue of adverse-events reporting, we needed a modern IT infrastructure. I looked at our IT infrastructure and recognized immediately it needed to be totally, completely revamped if it was going to be adequate for the future challenges that were emerging like post-market surveillance, and we began that process in 2006, and earlier I showed a brief slide to indicate what kind of progress we have made in rebuilding that infrastructure. I would be happy to present to the committee and to others the very detailed plan, implementation plan with milestones and outcomes that our chief information officer has been preparing and we have been implementing, and I am committed as the report indicates is necessary and as the Congress wants and is holding me accountable for to rapidly and radically transfer the information technology infrastructure at FDA. Mr. Burgess. Certainly this committee wants to support you in that endeavor. Now, we heard reference a little bit earlier to timelines for the, I think it was the information supply chain. Do you have a sense as to when you will be able to report back to this committee and what you will be able to report back as far as the progress that you are making along those lines? Dr. von Eschenbach. I would welcome the opportunity to report to the committee on the progress that we have made thus far which I believe is important and substantial and I also would address the timelines and the implementation strategy that we have targeted 2010 to bring the agency to a point where it has the appropriate infrastructure and the right bioinformatics that are operative on that IT infrastructure. Mr. Burgess. And too we hear from the National Institutes of Health, Dr. Zerhooni talks about a day that is coming with partialized medicine. It just seems like if the FDA is going to be able to adequately participate in that new world, that your tools that you are building right now are just going to be absolutely critical to be able to develop that. Dr. von Eschenbach. And importantly, we are not developing it in a vacuum. First of all, the first principle of our IT infrastructure is the fact that within FDA there will be integration across the centers, and secondly, FDA will be integrated with the components outside of the agency that are critical and essential. So, for example, in our sentinel initiative, we have signed a memorandum of understanding with the Veterans Administration, with the Department of Defense. We have a relationship with Center for Medicare and Medicaid Services with regard to their database. We are engaging with the private sector and private health plans. We have been working through the Brookings Institute to create this nationwide interoperable network that will enable FDA as it catalyzes the development of that network to have access to information about the actual experience of drugs and devices as they are being used in diverse populations so that not only do we immediately begin to detect patterns that reflect an unexpected adverse event, but even more importantly, as physicians we recognize in treating patients there are those times when you recognize unexpected, incredible efficacious events that if you capture that and understand it, you can begin to understand how to use the medicine even better, and I think that is within our grasp and that is something we are going to accomplish but we are going to accomplish it as part of a network, and you have made that possible for me by virtue of the passage of the Food and Drug Amendments Act and we hope to do this through the Reagan-Udall Foundation as we get that up. So I compliment and thank Congress for the opportunity and authority to do that. Mr. Burgess. Very good. I will yield back, Mr. Chairman. Mr. Stupak. The gentleman's time has expired. Mr. Green. Mr. Green. Thank you, Mr. Chairman, and like my colleagues, I would like to welcome Dr. von Eschenbach in coming from Houston. You spent it seems like 30 years with M.D. Anderson as both a researcher and a physician. I appreciate it. I also appreciate the job we expect you to do at FDA, although I will tell you my frustration. You heard it from lots of members on a bipartisan basis. When someone is appointed by any administration, and I know we have the same problem in Democratic administrations, you owe your loyalty to that person, in this case President Bush or previously President Clinton, but because of your appointment and confirmation, you also owe it to the American people, and I have had discussion with appointees bipartisanally over the years and there is bound to be, Mr. Chairman, some way where we can draw a line that says the head of a major department like the Food and Drug Administration can tell Congress what their request is because I think we ought to know, and the President would submit the big budget to Congress but I think we ought to know the wish list from the FDA or the wish list for, you know, any other Federal agency, and I guess because in my experience here on the Hill, I have some other former Texas who are in healthcare facilities like yours, and after they left that particular administration, their freedom of speech was suddenly restored, and it was nice to be able to say well, at that time I had a different boss, I recognize you have a different boss, and sometimes we do that too. I understand if you are a committee chair in the House, you have a different boss and we always do but it is frustrating because this report raises a lot of concern, and was on the docks at the Port of Houston with FDA inspectors and it was frustrating to find out that, you know, our FDA inspectors are on the docks, we don't have enough of them, and the headquarters is down in Laredo and Laredo may be very good because of the land base, biggest land-based port in the world, I guess, but because of all the foodstuffs that are imported and other things from Mexico. But I think the report shows that we have a problem, and in Texas we would say our ox is in a ditch and we need help getting it out, and I think that is what bipartisanally you are hearing from us because our committee is responsible for that. I wish I could tell you we also appropriate money but that comes from that other committee, and it is frustrating because we want to give you the tools but we also--some of it is so money-based, if you want more inspectors, we have to pay for them. If we want labs to be able to get the results back quicker, then we have to pay for them, and those labs have to be close to the places. The closest lab in Texas FDA has is Arkansas. There is not even one in Texas. Chairman Dingell, I have this discussion about his bill that would require some of these testing. Well, I don't know if we need a lab at the Port of Houston but I know we need ability to contract for testing that may be closer than Arkansas is for all the Texas border. Let me ask you, in the GAO, typically whether it is FDA or other agencies, FDA had a lot of attention this year with the reauthorization, and I know you mentioned the aftermarket studies and that is now in statute and it is very important that you have the resources to do that in this last year and maybe your predecessor next year will have it, and what the GAO I think is telling us in the findings by the Science Board report as well as GAO working on food safety is, FDA's food inspection program, FDA's foreign medical device inspection program together conclude that your agency is facing considerable resource constraints. Would you agree with that? Dr. von Eschenbach. Yes, sir. Mr. Green. And last November the GAO testified on the average you were able to inspect foreign manufacturers only about once every 13 years. Is that considered something that the FDA could agree with? Dr. von Eschenbach. In terms of the manufacturers, I think it is important to point out what kind of manufacturer. Mr. Green. Foreign drug manufacturer. Dr. von Eschenbach. The overall number is fine. Mr. Green. And in China the data show that your agency at present inspection rates would only be able to inspect each firm every 50 years. Is that---- Dr. von Eschenbach. The way that is arrayed, Mr. Green, let me try to point out that as it relates to, for example, a new drug or new device that is being produced beyond our borders, they all get inspected before that new device or drug is approved. Some of the inspections that those numbers are referring to are inspections of plants that are already operative and underway for which products are approved and we go back and reinspect, and the point I made earlier and I want to continue to emphasize is that when one looks at the number of places that are now engaged in food production and manufacturing, we cannot simply look at a formulaic number in terms of how many times we inspect each one of them because they are not all the same. Let me talk about devices in terms of the three classes, which I know was raised earlier by the chairman. Factories that are making tongue depressors for which there is relatively little, if any, risk of that product being problematic even though we regulate it would require a much different frequency of inspection than a factory that is making cardiac defibrillators, for example. So I think the numbers are important overall but it is really important to look beyond the numbers to how we will improve the effectiveness of FDA's regulatory function in a risk-based model that extends our number of investigators and number of inspections to do the right thing in the right way, and I say that because I recognize the numbers are being discussed and I respect the fact we need to do more but I want you to understand I am trying to do more in a better way. Mr. Green. Well, and we want you to do that but we also recognize, and I think on a bipartisan basis, you need to do it in a better way but we also need to have more resources because if I am ingesting medication from some other country and we don't inspect them but maybe every 50 years or 13 years even on the average, it is different than a defibrillator but I watched at that dock where these toys were seized by customs agents but also in some cases counterfeit medication that the FDA inspectors were also to seize, and so that is why I say those inspectors on the docks and at the ports of entry have a very difficult job, and they just need to have reinforcements to do it and I think that is what the GAO report is probably aiming at, and whether it is this current Administration or the next one, this Congress is going to have to make sure that those resources are there. Dr. von Eschenbach. Yes. Mr. Green. Thank you, Mr. Chairman. I appreciate your patience. I know I am over time. Mr. Stupak. Thank you, Mr. Green. Mr. Walden for questions, please. Mr. Walden. Thank you very much, Mr. Chairman. Dr. von Eschenbach, thank you for being here today. We appreciate your patience and your input and your leadership. Let me see if I can kind of sum this up since I guess I am at least at this point the last one. You have been there about 2 years as head of the FDA. Dr. von Eschenbach. Yes, sir. Mr. Walden. When you got there you found there were problems at the FDA that are systemic that go back 2 decades. Dr. von Eschenbach. Challenges at the FDA that---- Mr. Walden. Challenges. All right. Among those are an IT system that is inadequate for the demands of today. Dr. von Eschenbach. Right. Mr. Walden. Among those is a lack of inspectors to keep pace with the imports that are coming in, especially doing investigations and inspections overseas because of the shift that has occurred in our economy. You have asked for reports from outside and internal entities to tell you what the problems are and provide you with opportunities to solve them, and that is kind of where we are at today. Is that accurate? Dr. von Eschenbach. Yes, sir. I would like, if I can, to just add that not only have we been identifying these challenges but we have been working towards systemic solutions to those challenges. I have referred often to our IT plan. I looked at initially when I arrived. We were making a $200 million investment in IT. It is up to $247 million. We have looked at the number of inspections and the challenges of increasing the need to be more engaged beyond our borders, and we have increased the number of inspectors and the number of inspections, but the issue here is that is not going to get addressed in 1 year or in 2 years but what I want to do is create a trajectory that continues to keep pace with the challenge. Mr. Walden. Then in terms of trying to keep pace, you have indicated you reached out to do some FDA inspections with outside organizations maybe in foreign countries. Do you have MOUs, memorandums of understanding, with foreign governments, foreign agencies similar to your own to try and get a better handle? Dr. von Eschenbach. We are in the process of working aggressively to create those relationships with those beyond our borders. Of course, most recently we have addressed the issues having to do with China. We have two memoranda of agreement that we signed with the government agencies within China that are our counterparts. We have been working unilaterally and bilaterally with many nations, and this is a strategy that we will continue to pursue. Mr. Walden. I will just speak for myself but I assume other members of the committee might be interested over time to occasionally get updates on those memoranda and where we stand and the progress you are making on that front. That would be helpful. The other thing I have heard today is that your agency and that of directors prior to you has sort of over time been asked to do all kinds of new tasks and not necessarily funded to do those jobs. Is that an accurate assessment? Dr. von Eschenbach. I believe that the report that was presented earlier today by Mr. Hutt reflected the number of additional responsibilities that have been placed on the FDA for which he did not find a revenue stream to support that. I have attempted to look at our resources not only from the point of view of what Congress allocates in the form of budget but what Congress also allows us to acquire with regard to user fees and also now the private foundation, the Reagan-Udall Foundation. Mr. Walden. And I have only got a minute or so left. I want to hit two topics. One is the user fee topic, and it seems to me, given the fight that always occurs up here on the Hill for general fund money, what about this issue of user fees? I know there are those who probably even on the panels that have done investigations that think you don't want to get too cozy with industry if they are funding it, there won't be that sort of separation. There are others who say your agency doesn't have the resources it needs and, frankly, industry benefits by your stamp of approval. Dr. von Eschenbach. I mentioned those specifically because the data that Mr. Hutt presented did not incorporate the addition of the user fees and what that has done as far as our ability to increase our workforce. Having said that, we have recognized that with regard to the user fee program, is absolutely essential that we keep them restricted and defined as just that, a fee for service for which the industry deriving a direct and specific benefit---- Mr. Walden. Right, helps pay for---- Dr. von Eschenbach. Helps pay---- Mr. Walden [continuing]. Regulatory costs---- Dr. von Eschenbach [continuing]. Regulatory costs so it doesn't become a burden for the taxpayer and that also we have an absolute firewall such that that fee does in no way shape or form influence the regulatory decision, and I think if we put those kinds of safeguards in place, Congress holds us accountable, that can be an important component of our overall resource base. I think we have to explore the opportunities for public-private partnerships and the Reagan-Udall Foundation that I hope that we will be able to implement has given us the opportunity to create that because in the public-private opportunity, for example, I alluded to our surveillance network, we have great opportunity to leverage and do what the Science Board report said we should do which is access expertise and resources that are available in other places to do what FDA needs to do. Mr. Walden. The second and final point I would like to throw your way, there are certainly many Americans, certainly members of Congress who think we should open the door for importation of pharmaceutical drugs from foreign countries. We have had votes on that in the House. There is a lot of pressure to do that. Can your agency certify if that were to take effect that the drugs that people would be ordering off the Internet or coming across our border are safe and are actually what they would be thinking they were filling a prescription for? Dr. von Eschenbach. We are committed to continuously doing everything possible to ensure that the drugs and devices that Americans use are safe and effective, and in looking at the import problem, we have been unable to be certain we could ensure that, even when they are labeled as having come from what we could consider a reputable source like Canada, the product itself often is not and they are often coming from places other than Canada that we have absolutely no control or confidence in or when analyzed found to either not contain the active ingredient or to contain ingredients that are in fact harmful. We have no way of being able to ensure the safety of reimports. Mr. Walden. Thank you, Mr. Chairman. Thank you, Dr. von Eschenbach. We appreciate your testimony and answers today. Mr. Stupak. I thank the gentleman. Let me ask this question. I asked you earlier about the report. You said you read the Science Review Board report, correct? Dr. von Eschenbach. Yes, sir. Mr. Stupak. And nothing surprised you in that report, correct? Dr. von Eschenbach. That was my answer, yes, sir. Mr. Stupak. But then when Mr. Dingell asked you about the food safety where the report says you cannot provide for food safety of the American people, you disagreed with that. Dr. von Eschenbach. Yes, sir. Mr. Stupak. So the report says we are not doing a good job on food safety, we inspect about 1 percent of all the food that comes in, and you think that is a good job? Dr. von Eschenbach. Mr. Chairman, let me be specific. I mean, you asked me if I was surprised about something in the report. I am not surprised that someone would have a different opinion than me. Mr. Stupak. So you are not surprised that the Science Review Board says we are failing to protect our food supply coming into this country? Dr. von Eschenbach. I believe the American food supply is among the safest in the world. I believe we must continue---- Mr. Stupak. So do you disagree with the Science Review Board statement then on food safety? Dr. von Eschenbach. I disagree that food safety today in the United States is not one of the finest in the world. I believe that to be the case. Mr. Stupak. It is not whether it is the finest, whether we are providing the adequate protection the American people expect and the Science Review Board says we are not. Do you disagree with that statement, yes or no? Dr. von Eschenbach. It is hard for me to say we are not doing it when it is the finest food supply in the world, or among the finest food supply in the world, and when we recognize the nature and complexity of the problem that we need to continuously---- Mr. Stupak. The food supply, I agree, we have tons of it coming in. Every 5 years it doubles. The Science Review Board says we are not doing a good job. Do you agree or disagree with---- Dr. von Eschenbach. Well, what is the basis for not doing a good job? Mr. Stupak. It is all there in the report. We don't have inspectors, it doubles every 2 years. We don't have any IT, all these things. We have had hearings on it which you testified. Dr. von Eschenbach. Mr. Chairman, I am not saying that there aren't problems and issues with regard to continuously ensuring the quality of our food supply. That is not my point. Mr. Stupak. Let me ask you specifically then. It is report of Subcommittee on Science and Technology 3.1.1, finding, ``The FDA does not have the capacity to ensure the safety of food for the Nation.'' Do you agree or disagree with that statement? Dr. von Eschenbach. It is ensuring the safety of the food supply. We have one of the finest---- Mr. Stupak. So you disagree with that statement? Dr. von Eschenbach [continuing]. Food supplies in the world. That is not to say there aren't challenges that I have been---- Mr. Stupak. They didn't talk about challenges. They said you did not have the capacity, the FDA--and I am not trying to put you on the spot, I am not trying to argue with you. I mean, do you agree or disagree? Dr. von Eschenbach. I disagree with that. Mr. Stupak. OK. In their report, they also talk about personnel morale, and we talked about IT and I believe Dr. Nordenberg said that multiple turnovers as the head of your IT department, like five times in the last couple years, and then you don't have a chief medical officer. The chief medical officer is also the deputy director of the department and Dr. Cassell said that is just way too much for one person, and they do cite the morale problems. What is the systemic problem with the morale problem at the FDA? Dr. von Eschenbach. Let me kind of address some of these issues specifically, first of all, the turnover of chief information officers. Since I have been at FDA, I have brought in a chief information officer but brought one in with unique and specific expertise but also with a very significant fundamental change in the charge to that chief information officer and their authority and responsibilities. We had chief information officers that were overseeing a totally distributed fragment system with no authority to be able to integrate or centralize that system. The very fact is, I not only got a chief information officer with unique skills and background and experience but enabled and empowered him to make fundamental systemic changes---- Mr. Stupak. Do you have a plan to implement your IT then? You have a new officer. Do you have a plan to implement it? Dr. von Eschenbach. Absolutely. Mr. Stupak. What is the cost of that plan to implement your new IT? Dr. von Eschenbach. We have invested at this point incrementally from $200 million when I arrived to now a total of what is $247 million, and I demonstrated that that has been successful at being able to put us on a trajectory to totally continually refurbish that entire infrastructure. So let me try to be clear about the chief information officer turnover. As it relates to the other issues of change in leadership, the director was recruited to be the acting surgeon general of the United States, and that is not--he didn't leave because there was a morale problem, he left because he had an opportunity to---- Mr. Stupak. Sure. I am not saying any one of these people left because of morale problems. The report cites the morale problem within the agency. So---- Dr. von Eschenbach. There is clearly from my point of view a need to address the morale and the needs of the people at FDA, and that is a process that is underway. It has come about by, number 1, increasing their numbers and giving them more modern tools to work with, and quite frankly, giving them credit for the incredible job that they are doing as the world's best and finest. Mr. Stupak. You held up this Food Protection Plan from November of 2007 in a question from Mr. Barton. This plan doesn't identify any resources to implement it. How much will it cost to implement this plan? Dr. von Eschenbach. The plan is a strategic plan. It is not a business plan. The business plan to be able to implement that is part of our budget process. Mr. Stupak. Are you implementing it? Dr. von Eschenbach. Yes, sir. Mr. Stupak. So you have got to have a budget for implementing it. Dr. von Eschenbach. Yes, sir. Mr. Stupak. What is that budget---- Dr. von Eschenbach. We spent 2008 dollars to implement that. Mr. Stupak. OK, 2008 dollars. I am sure that is fiscal year 2008. Dr. von Eschenbach. Yes, sir. Mr. Stupak. How many dollars have you spent in 2008 to implement this plan? Dr. von Eschenbach. I need to give you that specific number but we have spent 2008 numbers to implement portions of that plan, and I have---- Mr. Stupak. Well, GAO said that--and again, I asked this question earlier. Without a clear description of resources and strategies, it will be difficult for Congress to assess the likelihood of the plan's success in achieving its intended results. Dr. von Eschenbach. The success of the plan, Mr. Chairman, is not how much money we are spending on it. That is a critical and important element---- Mr. Stupak. I agree. It is---- Dr. von Eschenbach [continuing]. To achieve success. Mr. Stupak [continuing]. Not how much money. Dr. von Eschenbach. But success is what the plan actually accomplishes. Mr. Stupak. Here is the list. These are recalls last year, 21 pages. We will measure success when I don't come here with 21 pages of recalls. If we don't have the resources, we are to continue with 21 pages of recalls of food, fish, all this---- Dr. von Eschenbach. I agree that we need additional resources and I have requested resources in the budget. I have also held our leadership at FDA accountable in implementation of that report. Mr. Stupak. As Members of Congress, we are trying to help you. Mr. Dingell, Mr. Pallone and myself have the Food Safety Bill, which will bring user fees for you. If you put it together at $50 a line, it comes to approximately $900 million in extra money could come to the FDA. Has the FDA--and I have asked you this before and I am sure I going to get the same answer. Have you taken a position on the Dingell-Pallone-Stupak Food Safety Bill, yes or no? Before you said no, and I am sure the answer is still no, right? I can answer that one for you. Since 1996 we have been doing food safety hearings. Since 1996 the FDA has never, never taken a position. How can we help you if you won't even take positions on legislation that number 1, would improve the food safety program which your Science Review Board says is broken. We are trying to give you the resources. You won't even comment on it. How can we work together in a cooperative effort---- Dr. von Eschenbach. Mr. Chairman, there is a request for additional authorities. You would help me a great deal by addressing those additional authorities. Mr. Stupak. Well, we would like to help you with that. You won't even tell us how much it costs to implement, where you are getting the resources, what is going to take. I mean, I don't want to be argumentative. Dr. von Eschenbach. The authorities for us to have mandatory recall would not---- Mr. Stupak. No, I asked about the Dingell-Pallone-Stupak bill. You won't even take a position on it. It is the most comprehensive bill we have seen in years. It provides you authorities, provides you recall authority, which you don't have now on food, and will actually give you the resources and you won't even take a position on it. So how can we partner to fix the FDA based on Science Review Board's recommendation when the FDA as the Commissioner or your legislative affairs department won't even take a position on simple legislation designed to assist, provide you with the authority and the resources you need? Dr. von Eschenbach. We continuously are committed and available to provide you any technical expertise you would require---- Mr. Stupak. Give us the technical expertise on our legislation. Tell us what you like or don't like. You won't even tell us that. Mr. Shimkus. Mr. Chairman. Mr. Stupak. Yes, Mr. Shimkus. I am sorry I am over my time. Mr. Shimkus. That Dingell-Pallone-Stupak, would that Stupak be any relation to you? Mr. Stupak. That is my brother. Mr. Shimkus. I just want to mention two things, and I highlighted your resume earlier just because you have a long career in public service, working with patients, and again, it is a good thing to highlight. And I want to address your issue of how safe is safe, what is the cost. I mean, both Mr. Stupak and I play sports, we play baseball. You can have a good team, you can have a very successful team, but that team can always get better and that team can get better by bringing in new players, spending--I am not in a big major market area where the Cardinals can't spend what the Yankees spent or the Dodgers spend or the Red Sox spend but it is quality and it is leadership and it is teamwork and it is fitting the pieces of the puzzle together. That is where our questions--I mean, there is a resourcing issue. We understand that. Dr. von Eschenbach. I couldn't agree with you more, sir, but I have never done an operation in my entire life I didn't ask how can I do it better no matter how well it turned out. I am not before the committee to say that FDA does not have the opportunity to be better and to do more but that is different than saying it is a failure. It is not. Mr. Shimkus. Because I am going to continue to be eating food, you know, tonight and I am going to eat food in the morning and I am going to eat food at lunch and I am assuming it is safe and for 99.99 percent of Americans it is going to be. There is going to be errors. We are going to try to fix that. My colleagues are right to push the envelope and try to get zero defects. We can't get zero defects. I think when you have 21 recalls, I think a broken system would have no recalls. We wouldn't identify any problems and then the problems would emerge. So the fact that there are recalls, the fact is there is a system out there that could be better. We want to help you. I think you identified authorization stuff that we should address. We will have to fight the appropriations battle with our appropriation friends. You have a chance, the fifth time to come back and talk about your budget request, what actually was put in the budget and how we can help to add more to that. I appreciate your time, and there are votes, Mr. Chairman, I yield back. Mr. Stupak. Mr. Walden, you have a question or two? Mr. Walden. Yes, Mr. Chairman, since we are on the third round here. I want to follow up too on this issue of the recalls because I agree with my ranking member, if there were no recalls we might either be in a perfect world or in a world ready for disaster, because that means people aren't catching problems and it is naturally going to occur, right, in the food chain? You get a contaminant in, some device breaks, something doesn't happen right. I want to minimize those numbers. Dr. von Eschenbach. Exactly, and---- Mr. Walden. Explain how that works. Dr. von Eschenbach. Well---- Mr. Walden. And is that the right metric? Dr. von Eschenbach. It is an important point because if we are going to continuously respond to the challenges, our systems have to address preventing these problems from ever occurring in the first place, and that is a new area of opportunity in the FDA. It has to strengthen our interventions, which is the inspections, but it also has to have this piece that is the response. When there is a problem, we have to identify it rapidly and intervene before great harm is done. There will be recalls. There will be problems that will develop in these complex systems and, for example, most recently detecting the problem of botulinin contamination. We went in and understood why that botulinin contamination occurred, and not only was that enabling us to fix the problem---- Mr. Walden. Was that in the spinach? Dr. von Eschenbach. That was in canned foods that was being cooked. And not only were we able to identify the problem and get a corrective process there, but disseminate that to other places and have them make modifications in their cooker to prevent the problems from occurring in those places. Mr. Walden. I see. Dr. von Eschenbach. So response fed right back into prevention. That is what FDA is engaged in and what FDA is doing, and that is in response to Mr. Stupak's concern that we have got to get better, do more and be more effective and that is our commitment and that is the way I think we can go about accomplishing that. Mr. Walden. Dr. von Eschenbach, can you talk to me a little about that food improvement program you are putting forward? Now, I would understand that we are not going to learn about the budgetary costs of that until the President's budget comes out, so you will have some funding requests I assume in the President's budget we will learn about in a week or two that will help underwrite the costs of that. Is that correct? Dr. von Eschenbach. Right, and in the FDA in the past when it had to regulate spinach, it was regulating spinach in the context of what I grew up with my grandmother, namely that she would take it home and wash it five times and then cook it. Now---- Mr. Walden. Until it had lost all its nutritional value too, right? Dr. von Eschenbach. And FDA has to regulate spinach and lettuce in the context that we stop off at the supermarket, bring home a bag, open it up and turn it upside down. The lettuce comes out already cut along with the croutons and the salad dressing. That is a much different reality. If FDA continued to do things the way it did in the past in the future, we would then fail. Mr. Walden. So this Food Protection Plan---- Dr. von Eschenbach. Is to modernize and to keep pace with the new challenges that are emerging so we continue to be the world's gold standard. Mr. Walden. And so specifically that is a strategic plan. Why don't we have the business plan? Dr. von Eschenbach. It is going to require resources and authorities. The resources are tracking through the normal budget process. The authorities are the very specific domain of this committee. Mr. Walden. When will you have those requests to us? Dr. von Eschenbach. Well, the report is published and available for discussion and commentary and implementation. We are looking forward to working with Congress around some of those issues, and many of them have been identified by Congress and, for example, mandatory recalls. Mr. Walden. But the business plan itself, when we will see that? Dr. von Eschenbach. Well, the business plan will be and is part of the budget process and clearly we have made some initiatives and some direction in that regard in 2008. I look forward to making more and discussing those additional opportunities in 2009 once the President's budget---- Mr. Walden. And when did you come out with the strategic plan again? Dr. von Eschenbach. This plan was introduced just a few months ago. Mr. Walden. So you are going to take it from there to a business plan in what time? Dr. von Eschenbach. We have already started some of that business plan process and some of the specifics. I will get to the chairman for the record an exact accounting of the dollars that have been applied to this plan as part of our Food Protection Plan. I just don't have it at the table with me. Mr. Walden. And regarding the chairman's legislation on recall and all, have you been invited to testify? Did we have hearings on that bill yet? Mr. Stupak. The full committee has not. Mr. Walden. Has the subcommittee had a hearing on it yet? Mr. Stupak. This subcommittee doesn't---- Mr. Walden. The Health Subcommittee? Mr. Stupak. I don't believe they have. Mr. Walden. You don't think they have had a hearing on your bill? Mr. Stupak. No. Mr. Walden. OK. Mr. Stupak. But we don't need a hearing to make a decision on legislation. Mr. Walden. Well, we haven't this year, no. Last year, not too many. Anyway, I would be interested to know your opinions too when there is a hearing and you have the invitation to testify on that legislation. Dr. von Eschenbach. If we are called upon to testify, we certainly would be responsive to that, and asked for technical assistance we would be responsive to that. Mr. Walden. Thank you. Thank you, Mr. Chairman. Thank you, Mr. von Eschenbach. Mr. Stupak. Well, that is going to have to conclude and we only have 6 minutes left for a vote, so Dr. von Eschenbach, thank you again for appearing and we look forward to talking to you soon, probably in about 60 days. Dr. von Eschenbach. Thank you. Mr. Stupak. That concludes the questions. I want to thank all of our witnesses for coming today and for the testimony and members for their devotion to this hearing today. I ask for unanimous consent that the hearing record will remain open for 30 days for additional questions for the record. Without objection, the record will remain open. I ask unanimous consent that contents of our document binder be introduced into the record. Without objection, the documents will be entered in the record. [The information appears at the conclusion of the hearing:] Mr. Stupak. That concludes our hearing, and without objection, this meeting of the subcommittee is adjourned. [Whereupon, at 2:55 p.m., the subcommittee was adjourned.] [Material submitted for inclusion in the record follows:] Statement of Hon. Jan Schakowski Thank you, Mr. Chairman - and thank you for your initiative in bringing this important issue before us today. I am eager to hear from our witnesses, many of whom have been immersed in issues surrounding FDA operations for years, and bring particular insight to our hearing today. Thank you for being here. American's assume that the products they use every day have been tested and approved for safety and effectiveness by some government agency. They may not always know exactly which agency this should be - but they make personal care decisions for themselves and their loved ones based on this assumption. As we'll discuss today, this is not always the case. This Sunday's Washington Post showed us that toys from China aren't the only products we're using that are laced with dangerous substances. The article, written by Susan D'Amato, highlights the issue of contaminants in cosmetics; lipsticks containing lead, mascaras containing mercury and hair treatments containing formaldehyde. D'Amato cites a study done by the Campaign for Safe Cosmetics, which tested 33 lipsticks for lead content - several of which exceeded the FDA's lead limit for candy. Why use candy as a benchmark? Because the FDA has yet to set a lead standard for lipstick - in fact, the FDA doesn't even have regulatory authority over cosmetics, nor does it subject cosmetic products or ingredients to premarket approval authority. On the one hand, we have things that have been approved that shouldn't have been - but on the other - we have potentially life-saving therapies which haven't been approved by FDA - and without a lot of clarity as to why. Last Spring, amidst cries of foul play, the FDA delayed its approval of Provenge (a therapeutic vaccine for use in terminally ill patients with prostate cancer) against the scientific recommendation of its own advisory committee, which saw the value in bringing patient's the first nontoxic treatment for prostate cancer. This decision has raised concerns of both FDA's ability to review emerging scientific discoveries - and of the need for transparency into the approval process pipeline. These are two very different, but very alarming illustrations of the challenges which face an outdated, outpaced, and under-resourced FDA. As our witnesses will further detail for us today, the United States is depending on a 1950s FDA facing 21st century demands. This is a stark reality which demands attention and action. I look forward to working with this Committee and this Congress to overhaul the Food and Drug Administration in a way that will re-establish it as a leader in peer-review, innovation, collaboration and communication. Again, thank you to the witnesses for being here - and thank your Mr. Chairman. I yield back the balance of my time. ---------- [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Exhibit Binder Index 1. U.S. Food and Drug Administration (FDA) report, "Food Protection Plan: An Integrated Strategy for Protecting the Nation's Food Supply," November 2007 2. Report to the President by the Interagency Working Group on Import Safety, subject: "Action Plan for Import Safety: A Roadmap for Continual Improvement," November 2007 3. National Antimicrobial Resistance Monitoring System (NARMS) Program Review, conducted by the External Subcommittee of the FDA Science Advisory Board, 5/25/07 4. Federal Register, volume 73, no. 3, subject: "Department of Health and Human Services, FDA: Request for Comments on the Science and Technology Report; Establishment of Docket; Request for Comments," 1/8/08 5. Charter, Science Board to the Food and Drug Administration, 6/26/06 6. Congressional Research Service Report to Congress by Judith Johnson, et al.; subject: "The Food and Drug Administration: Budget and Statutory History, FY1980-FY2007," 1/24/2008 7. Letter from Kenneth Shrine, from The University of Texas System, to FDA Commissioner Andrew von Eschenbach, 01/22/08 8. Letter from Kenneth Shrine to Dr. Gail Cassell, member of the FDA's Science Board, 01/23/08 9. New York Times article by Gardiner Harris, re: "Advisers Say F.D.A.'s Flaws Put Lives at Risk," 12/1/07 10. FDA's Science Board Budget Justification [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]