[Senate Hearing 111-570] [From the U.S. Government Publishing Office] S. Hrg. 111-570 ``BODY BUILDING PRODUCTS AND HIDDEN STEROIDS: ENFORCEMENT BARRIERS'' ======================================================================= HEARING before the SUBCOMMITTEE ON CRIME AND DRUGS of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION __________ SEPTEMBER 29, 2009 __________ Serial No. J-111-51 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 57-768 PDF WASHINGTON : 2010 ----------------------------------------------------------------------- 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 PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York JON KYL, Arizona RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware ARLEN SPECTER, Pennsylvania AL FRANKEN, Minnesota Bruce A. Cohen, Chief Counsel and Staff Director Matt Miner, Republican Chief Counsel ------ Subcommittee on Crime and Drugs ARLEN SPECTER, Pennsylvania, Chairman HERB KOHL, Wisconsin LINDSEY GRAHAM, South Carolina DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York JEFF SESSIONS, Alabama RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma BENJAMIN L. CARDIN, Maryland AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware Hanibal Kemerer, Democratic Chief Counsel Walt Kuhn, Republican Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, prepared statement............................................. 144 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 2 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 1 WITNESSES Fabricant, Daniel, Ph.D., Interim executive Director and CEO Vice President, Scientific & Regulatory Affairs, National Products Association, Washington, DC.................................... 13 Kinghman, Richard F., Partner, Covington, & Burling LLP, Washington, DC................................................. 15 Levy, Michael, Division Director, Office of Compliance, Center for Drug Evaluation and Research, Food and Drug Administration, Washington, DC................................................. 7 Rannazzisi, Joseph T., Deputy Assistant Administrator, Office of Division Control, Drug Enforcement Administration, Department of Justice, Washington, DC..................................... 9 Tygart, Travis, chief Executive Officer, United States Anti Doping Agency, Colorado Springs, Colorado...................... 11 QUESTIONS AND ANSWERS Responses of Daniel Fabricant to questions submitted by Senators Hatch and Specter.............................................. 29 Responses of Richard Kingham to questions submitted by Senators Specter and Hatch.............................................. 40 Responses of Michael Levy to questions submitted by Senators Hatch and Specter.............................................. 57 Responses of Joseph T. Rannazzisi to questions submitted by Senators Hatch and Specter..................................... 126 Responses of Travis Tygart to questions submitted by Senator Hatch.......................................................... 139 SUBMISSIONS FOR THE RECORD Fabricant, Daniel, Ph.D., Interim executive Director and CEO Vice President, Scientific & Regulatory Affairs, National Products Association, Washington, DC, statement......................... 141 Kinghman, Richard F., Partner, Covington, & Burling LLP, Washington, DC, statement...................................... 146 Levy, Michael, Division Director, Office of Compliance, Center for Drug Evaluation and Research, Food and Drug Administration, Washington, DC, statement...................................... 149 Mister, Steve, President and CEO, Council for Responsible Nutrition, Washington, DC, statement........................... 164 Rannazzisi, Joseph T., Deputy Assistant Administrator, Office of Division Control, Drug Enforcement Administration, Department of Justice, Washington, DC, statement.......................... 171 Tygart, Travis, Chief Executive Officer, United States Anti Doping Agency, Colorado Springs, Colorado, statement........... 177 ``BODY BUILDING PRODUCTS AND HIDDEN STEROIDS: ENFORCEMENT BARRIERS'' ---------- TUESDAY, SEPTEMBER 29, 2009 U.S. Senate, Subcommittee on Crime and Drugs, Committee on the Judiciary, Washington, DC The Subcommittee met, pursuant to notice, at 2:30 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Subcommittee, presiding. Present: Senator Hatch. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman Specter. Good afternoon, ladies and gentlemen. The hour of 2:30 having arrived, the Subcommittee on the Committee of the Judiciary on Crime and Drugs will now proceed with this hearing on bodybuilding supplements and the possibility of their containing steroids or steroid-like substances. The Federal laws which govern this subject are complex. If the substance is a drug within the meaning of the Food and Drug Act, it is subject to preclearance by the FDA. Failure to comply with Federal law may result in criminal penalties. If the item comes within the Controlled Substances Act as one of the titled defining steroids, there again may be a criminal violation. The legislation provides that substances produced before 1994, which are body-building, are not subject to the rules of the Food and Drug Administration. But experience has shown that there are many of these body-building supplements which are sold over the counter which may contain steroids or steroid- like substances which may cause very severe damage to the liver or the kidneys. We find that our society, which is very much addicted to supports and very much addicted to excelling in sports, that athletes are very anxious to buildup their bodies to be able to excel or at least to do better. And this is an attitude which goes from professionals like Mark McGuire who received disciplinary action as a result of having steroids in his body to J. C. Romero of the Philadelphia Phillies who was suspended this year to the detriment, candidly, of my home town team for 50 games because he had steroid-like substances in his body. Or at least that was the allegation and the judgment of some. So the question arises as to whether there needs to be a change in Federal law. The consequences can be very serious for using steroids as identified by the Food and Drug Administration in serious terms as follows: Anabolic steroids may cause serious long-term adverse health consequences in men and women. These include shrinkage of the testes and male infertility, masculinazation of women, breast enlargement in males, short stature in children, adverse effects on blood lipid levels, and increased risk of heart attack and stroke. The consequences of liver failure and kidney disorder have already been identified. On one of the morning television shows a young man appeared to say, in anticipation of this hearing there was television coverage, that he had used a steroid-like substance and became very ill, went to a doctor and was told that if he hadn't secured medical aid by 2 days he might well have been dead at that point. There is a collateral issue which the Subcommittee will take a look at and that is a Federal court decision which prohibited the national football league from taking disciplinary action against athletes under the anti-doping provisions. There the Eight Circuit Court of Appeals upheld a District Court decision saying that it was a matter of Minnesota law and that the individuals cited could defend themselves under a Minnesota statute. Well, it is an item which most likely can be handled by Federal supremacy. If the Congress decides to act to eliminate any ambiguity that Federal law will control notwithstanding Minnesota law which Federal statute could supercede the decision of the Court of Appeals for the Eighth Circuit. These are very important items. We are dealing with a multi-billion dollar industry, estimated to bring in on dietary supplements like $24 billion a year and body-building supplements projected to yield in the range of $2.5 billion a year. So there are substantial property rights involved. But there are also very substantial health risks involved. In existing legislation as noted, under the Food and Drug Administration, under controlled substances there are tough penalties. We may need to take a look at what we are going to do here with the exemption which allows these body-building steroids to be sold without preclearance under 1994 legislation. Now I am pleased to yield to my distinguished colleague, Senior Senator from Utah. This hearing panel is small, but loaded with ex-chairmen of this Judiciary Committee. Senator Hatch. STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. Thank you, Mr. Chairman. It is nice to be with you as always. We are very close friends and I appreciate being here at this hearing. There should be a high priority to enforce the laws currently on the books so that no one, a high school football player, a middle-aged dieter, or a major league baseball player may walk into a health food store and purchase a product off the shelf that contains steroids. Today such purchases are illegal, plain and simple. Any company that sells such products is in violation of law and those types of products should be taken off the market immediately, no infrastructure, ands, or buts about it. So this is an important issue and is equally important that this hearing clear up the abundant confusion and misinformation about what the laws are, how they are being enforced, and which agency is responsible for overseeing and enforcing laws that make anabolic steroids illegal. It is my hope that we can use this hearing as an opportunity both to educate American consumers, especially teens and athletes about the dangers of steroids and to ensure them that laws do exist to protect them from these dangerous products. As members of the Subcommittee know, we have worked hard to ensure that the government has adequate authority to take products containing anabolic steroids off the market. Many of us have been concerned as we begin to see the use of anabolic steroids increase in professional and amateur athletics. That was the primary reason for the enactment of the 1990 Anabolic Steroids Control Act which banned anabolic steroid use in the United States. Senator Biden and I were the prime sponsors of that bill. While the 1990 law was successful in deterring potential steroid abuse, new products were being developed to circumvent the reach of Federal law enforcers. And while not technically anabolic steroids, these steroid precursors react in a virtually identical dangerous manner once inside the human body. So we worked closely with the Drug Enforcement Administration and then Senator Biden to update the law and pass the Anabolic Steroid Control Act of 2004. Mr. Chairman, I recall your being very supportive of this legislation as well and I personally appreciated it. This was not controversial legislation. It passed the Senate unanimously and the House of Representatives passed it by a vote of 408 to 3. The Anabolic Steroid Control Act of 2004 addressed the abuse of steroids by athletes and also youngsters and teenagers by listing new steroid precursors as controlled substances. The law also gave the DEA the authority to schedule new precursors more easily without the sometimes difficult process of proving the product builds muscle mass. Importantly the law designated the substance androstenedione as a controlled substance, thus clearing up any ambiguity that this dangerous product could mask as a dietary supplement regulated by the Food and Drug Administration. Senator Harkin of Iowa and I had spent considerable time urging the government to ban andro, as it is called, and I was very supportive of its listing which thus placed significant controls on its distribution and use including substantial criminal penalties. Let me take this opportunity to raise one issue that will probably be considered within the context of this hearing. When the 2004 law was considered on the floor, Senators Biden, Kennedy, Durbin and I had a detailed colloquy including discussion of how DHEA, a hormone precursor, which is sometimes marketed as a dietary supplement would be treated under the Anabolic Steroid Control Act. As we recognized, it was not the intent of Congress to stop the use of substances that are legitimately marketed as dietary supplements, or to limit access to substances that are not abused as steroids by athletes or children. The 2004 law deliberately did not schedule DHEA and as a result legitimate users of DHEA continue to have access to it if it is lawfully marketed. However, the 2004 law does allow the DEA, the Drug Enforcement Administration, if it should find that the product is being abused by athletes, by youngsters, or by teenagers to schedule it as a controlled substance by applying the standards in Section 201 of the Controlled Substances Act including the eight factor analysis listed in Section 201.C of that Act. But I add that in fact the DEA need not find that DHEA meets each of the eight factors before it can be scheduled. For example, if the DEA considers that DHEA has no or minimal psychic or physiological dependence liability, the DEA may schedule DHEA if the agency concludes, after consideration of the facts and relative importance of other factors, such as the actual or relative potential for abuse, the history and current pattern of abuse, or the scope, duration, and significance of abuse, that it should be scheduled. So that we would be clear, I asked that the Administration provide its written understanding of that provision. And Administrator Karen Tandy wrote a letter to me stating that the presence of each of the eight factors is not a mandatory prerequisite to scheduling. Now, Mr. Chairman, I ask unanimous consent that that letter be submitted for the record. Chairman Specter. Without objection, it will be made a part of the record. [The letter of Administrator Tandy appears as a submission for the record.] Senator Hatch. Thank you, sir. If I could take a few more minutes because this is a subject that is very important to me and my home state of Utah, world leader in the manufacture of dietary supplements. I would like to take a few minutes to discuss briefly the Dietary Supplement Health and Education Act of 1994 known as DSHEA. While the Health Committee has jurisdiction over this bipartisan law, that Senator Harkin and I wrote, it is an important piece of supplement regulatory structure. DSHEA clarified the Food and Drug Administration's regulatory authority over supplements while ensuring that consumers will continue to have access to safe supplements and information about their use. It passed the Senate not once but twice by unanimous consent. The law established a statutory framework for FDA so that these vitamins, minerals, herbal products, amino acids, enzymes and other dietary supplements are generally recognized as foods. The law ``grandfathered'' supplements on the market in the United States at the time of enactment. The presumption being that these products had an abundant history of long and safe use. At the same time we wrote a strong safety standard into the law the products that might be harmful could be removed from the market. As a double safeguard we also gave the FDA an ``imminent hazard'' authority so the agency can immediately remove from the market a product it suspects to be unsafe, no questions asked. We also included a provision to require manufacturers to submit to the FDA, 75 days prior to marketing, safety information about any new ingredients not previously marketed. A key principle of the law is that supplements were not subject to premarket approval since the cost and time alone required to see a product through the FDA approval process would sound the death nail for this industry. Most supplement products cannot be patented and there is no incentive for a manufacturer to put its products through this costly and onerous process when any other manufacturer could benefit equally from the research and investment. Another key provision in the law authorized issuance of good manufacturing practice standards for supplements so that FDA inspectors could make certain the products are being manufactured in compliance with all the safeguards of the law. Finally, we required that all ingredients be listed on the label and that any claims must be made truthful and not misleading. The reason I outline these provisions is to illustrate that we took great pains to design a regulatory framework that will assure supplements are manufactured and marketed with consumer safety as the top priority. We provided the FDA with an arsenal of new tools to enforcement the law. Some they have used, others not. And since that time the industry has grown. By some estimates it is a $20 billion industry today. While critics of the industry have viewed this growth as a negative development, repeatedly stating that the industry is unregulated, is simply the wrong statement. All of these requirements are set out in the law in order to be administered by the regulatory agency, the FDA. While the great majority of supplement products are used safely, there have been problems with some products. Some of the problems relate to manufacturing, some relate to labeling. I do not see this as a failure in the law. Supplements are regulated under the law. But let me be clear. We all recognize there are bad actors in the supplement industry. These individuals should be subject to swift punishment by the FDA and the Federal Trade Commission. Their products should be removed from the marketplace immediately and the full weight of the law should be brought down on these bad actors. Unfortunately it is no secrete that the FDA is a woefully underfunded agency. The agency will be the first to admit that its oversight of the dietary supplement industry is hampered by a lack of resources. For several years I have worked with Senator Harkin to rectify that shortcoming by requesting that the Appropriations Committees in the House and the Senate provide the FDA with more resources so that it can do a better job regulating the industry. Senator Kohl, Senator Bennett, and Senator Cochrane have been very helpful as well in this regard. One other regulatory authority should be mentioned before I conclude. The situation with the herb ephedra certainly pointed out that the FDA could benefit from earlier warnings about serious problems with supplement and over-the-counter drug products. Senator Durbin was instrumental in pushing this issue forward. We worked together with Senators Harkin, Enzi, and Chairman Kennedy to pass the Dietary Supplement and Nonprescription Drug Consumer Protection Act in 2006 which mandated a system of adverse event reports to the FDA regarding all serious events which are associated with the use of these products. Finally, I also want to mention that the Government Accountability Office issued a report on the regulation of dietary supplements at the end of January. The GAO report, in my opinion, made some helpful recommends regarding FDA oversight of these products. We, in Congress, will continue to evaluate GAO's recommendations on how to improve the regulation of this industry. But one of the important points the report raises is the lack of FDA resources to enforce the laws already on the books. I will continue to work with my colleagues in Congress and the FDA to provide more resources to the FDA for dietary supplement oversight. Before I conclude I want to stress and extremely important point. Since enactment of DSHEA almost every FDA Commissioner, Henney, McClellan, Crawford, and von Eschenbach on record stating that the agency has enough enforcement authority to regulate dietary supplements. And the current Commissioner, Dr. Margaret Hamburg, in a recent speech to the Food and Drug Law Institute on effective enforcement and benefits to public health mentioned that, ``reports have noted that there has been a steep decline in the FDA's enforcement activities.'' And, ``in some cases serious violations have gone unaddressed for far too long. These include violations involving product quality, adulteration, and misbranding. False, misleading, or otherwise unlawful labeling, and misleading advertising.'' Furthermore, in providing an example of the FDA stepping up its enforcement activities, Dr. Hamburg cited enforcement actions against companies selling over-the-counter, body- building products that contain anabolic steroid under the guise of dietary supplements. Dr. Hamburg stated in referring to these steroid products, ``these are unproven and unapproved drugs not dietary supplements.'' In other words, these products are considered ``adulterated'' and ``misbranded'' under the Food, Drug and Cosmetic Act. Simply put, under current law, these products are not allowed to be marketed. I appreciate the Chairman's willingness to listen to my long statement. But as you know, this subject is near and dear to my heart. I want to welcome our witnesses and thank them for taking the time out of their busy schedules today to join us. I look forward to discussing this important issue with them and of course with my Chairman and, of course, other members of this subcommittee. Chairman Specter. Will the witnesses please raise your right hands? [Whereupon, the witnesses were sworn en masse.] Chairman Specter. You may be seated. We will proceed now to our first witness who is Mr. Michael Levy, Director of the New Drugs and Labeling Compliance in the Office of Compliance for the Center for Drug Evaluation and Research at the Food and Drug Administration. Since 2000 he was associate Chief Counsel at one of the branches of FDA. And before that he was an assistant district attorney in the Philadelphia DEA's office. Outstanding academic record, Duke, cum laude, Bachelors Degree; Amherst, Duke, cum laude, law degree, and Amherst College, magna cum laude. I note your service with the Philadelphia District Attorney's Office. Mr. Levy. That's correct, yes. Chairman Specter. So you have obviously had excellent training. [Laughter.] Mr. Levy. Thank you. Chairman Specter. You have the same name as a former Assistant District Attorney. Mr. Levy. I do, yes. Chairman Specter. Is he your father? Mr. Levy. He is not. No, we are not related. Chairman Specter. You are not related? Mr. Levy. Not related. Chairman Specter. Well, I hired him as an assistant DA in 1971. He could qualify. He is now the distinguished United States Attorney for the Eastern District of Pennsylvania. Thank you for joining us, Mr. Levy. We look forward to your testimony. There is a 5-minute limitation. Mr. Levy. OK. Chairman Specter. Which is the standard rule in the subcommittees on the Judiciary. STATEMENT OF MICHAEL LEVY, DIVISION DIRECTOR OFFICE OF COMPLIANCE, CENTER FOR DRUG EVALUATION AND RESEARCH U.S. FOOD AND DRUG ADMINISTRATION WASHINGTON, DC Mr. Levy. OK. Mr. Chairman, and members of the Committee I am Michael Levy, as you mentioned, Director of the Division of New Drugs and Labeling Compliance in the Office of Compliance of FDA's Center for Drug Evaluation and Research. Chairman Specter. As Senator Thurmond used to say, pull the machine a little closer. Mr. Levy. OK. With me today is Doctor Vascilios H. Francos, Ph.D., Director of the Division of Dietary Supplement Programs in FDA's Center for Food Safety and Applied Nutrition. Dr. Francos will assist me in responding to questions pertaining to products marketed as dietary supplements and their regulation under the Federal Food, Drug and Cosmetic Act. At this point I want to take the opportunity to thank Senator Hatch for his long-standing leadership on dietary supplement issues and specifically the 2004 Anabolic Steroid Control Act and adverse event reporting for dietary supplements. Senator Hatch. Well, thank you so much. Mr. Levy. And thank you to the Subcommittee for the opportunity to discuss FDA's perspective on the issue of steroids and products marketed as dietary supplements. FDA is very concerned with products containing synthetic steroid ingredients that are marketed as dietary supplements. Body-building products marketed as dietary supplements are commonly found to contain these types of steroids. There is no requirement for the manufacturer of a dietary supplement to provide FDA with evidence of the product effectiveness or safety prior to marketing unless the product contains a substance that was marketed as a dietary ingredient before 1994 and that has not been a part of the food supply which the law defines as a ``new dietary ingredient.'' In addition to the agency's concerns that many of these products have not been clinically studied or demonstrated to be safe, the products are often sold with misleading labeling and they are frequently manufactured without quality controls. By labeling steroid products as dietary supplements unscrupulous firms can introduce into the marketplace products that contain ingredients that may pose risks to health. FDA has recently taken action to protect the public from illegal steroids and dietary supplements. In July 2009, for example, FDA issued a public health advisory warning consumers to stop using any body-building products that are represented to contain steroids or steroid-like substances. The public health advisory was issued in response to a cluster of serious adverse event reports submitted to FDA associated with several products containing synthetic steroids and marketed as dietary supplements. Adverse events included serious liver injury, stroke, kidney failure, and pulmonary embolism. Although the body-building products containing these synthetic steroids were marketed as dietary supplements they were not dietary supplements. Rather, they were unapproved and misbranded drugs that had not been reviewed by FDA for safety and effectiveness. FDA executed a criminal search warrant and issued a warning letter to American Cellular Labs regarding the illegal manufacture of these products. FDA also, last week, executed a criminal search warrant at the premises of Body-building.com. This search warrants involves an active criminal investigation into the distribution of body-building products marketed as dietary supplements that have been found to contain steroids. In the past 5 years FDA has sent 28 warning letters to firms that were illegally marketing products marketed as dietary supplements and containing steroids. Currently FDA's civil and criminal enforcement offices are gathering and reviewing additional data about other products that are marketed for body building and that claim to contain steroids or steroid-like substances. Despite these actions FDA enforcement in this area is challenging. Because FDA generally does not receive information on these products prior to marketing, FDA generally cannot identify violative products before they enter the marketplace. After products enter the market, FDA must undertake a painstaking investigative and analytical process of the products, ingredients, and labeling that often involves laboratory testing to show that they are violative. Currently the agency struggles to provide effective civil and criminal deterrents to prevent unscrupulous firms from fraudulently marketing these products. We are also unable to effectively prevent the importation of many violative products because of the sheer volume of imports and the agency's inability to do a comprehensive examination of all packages entering the United States. These challenges make it very difficult to stop the sale of these dangerous products. FDA, however, will continue its efforts to identify and remove illegal steroid products from the marketplace. FDA is committed to doing everything we can to protect the American public, not only through regulation and enforcement, but also through education, outreach and collaboration with entities outside FDA. FDA looks forward to working with Congress on this important public health issue and I would be happy to answer any questions. Chairman Specter. Thank you, Mr. Levy. Our next witness is Mr. Joseph Rannazzisi, Deputy Assistant Administrator for the Drug Enforcement Agency, coordinates major drug investigations and serves as liaison to the pharmaceutical industry. He has his Bachelors degree in Pharmacy from Butler University, a law degree from Detroit College at Michigan State, registered pharmacist and a member of the Michigan Bar. Thank you for coming in today and the floor is yours for 5 minutes. STATEMENT OF JOSEPH T. RANNAZZISI, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF DIVERSION CONTROL, DRUG ENFORCEMENT ADMINISTRATION, DEPARTMENT OF JUSTICE, WASHINGTON, DC Mr. Rannazzisi. Thank you, sir. Chairman Specter, Senator Hatch, distinguished members of the panel, on behalf of Acting Administrator Michelle Lynhart and the more than 9,400 men and women of the Drug Enforcement Administration I want to thank you for the opportunity to appear today and provide testimony concerning body-building products, hidden steroids and enforcement barriers. To understand the use of steroid products for body-building and performance enhancement, we must start by discussing testosterone. Testosterone is a hormone that is produced in the body and primarily responsible for the development and maintenance of male sexual characteristics and the promotion of muscle growth. It is a Schedule III controlled substance that has legitimate medical use as a therapeutic agent. It is also used non-medically by body builders, weight lifters, and amateur and professional athletes to perfect body appearance, increase physical performance and gain muscle size and mass. Over time scientists developed and synthesized compounds or derivatives that were structurally similar to testosterone and prohormones such as androstenedione, andro, a steroid that when ingested is metabolized into testosterone. Androstenedione was sold over the Internet and in health food and nutrition stores as a dietary supplement until 2004. Many, if not all the designer steroids, steroid prohormones and testosterone boosters on the market today are sold as dietary supplements. In 1990 Congress passed the Anabolic Steroid Control Act which placed 27 anabolic steroids into schedule III of the Controlled Substances Act. Pursuant to the 2004 Act the Congress placed an additional 36 steroids and over-the-counter prohormone dietary supplements into schedule III of the CSA including androstenedione and its derivatives. Dietary supplements are regulated under amendments to the Federal Food, Drug and Cosmetic Act; added by the Dietary Supplement Health and Education Act of 1994. The Drug Enforcement Administration has no statutory authority to enforce provisions of DSHEA. But does have statutory authority to investigate the manufacture and distribution of anabolic steroids in the dietary supplement market. With the passage of the Anabolic Steroid Control Act of 2004, Congress refined the definition of the original 1990 law to allow DEA to administratively classify a substance as an anabolic steroid if the substance is both chemically and pharmacologically related to testosterone, not an estrogen, progestin, or codoco steroid and not dyhydroepiandrosterone or DHEA. Using this provision DEA identified substances marketed as anabolic products in the dietary supplement market and then conducts a scientific review, an analysis of the substance to determine if it is related to testosterone and if the substance meets the criteria to be classified as a schedule III anabolic steroid. The scheduling process requires an interagency review, the publication of a notice of proposed rulemaking and the review of public comments and the publication of a final rule in the Federal Register that provides notice to the public and industry of the scheduling action. This is a lengthy process and there is no method under the current statute to expedite this scheduling process. DEA is currently in the final stages of the scheduling process for boldione, desoxymethyltestosterone, 19-nor4- 4,9(10)-androstadi- enedione, three substances that are sold and marketed as anabolic steroids in the dietary supplement and found to be chemically and pharmacologically similar to testosterone. DEA is aware of 58 supplements that purportedly contain one or more of these steroids. The initial notice of proposed rulemaking concerning the scheduling of these substances was published in April of 2008. We anticipate publishing the final rule in the next several months. When finalized, these products would be the first substances scheduled under the 2004 Act. As you can see, the overall time period to perform an anabolic steroid scheduling action may take as long as 2 years to complete. In the time that it takes DEA to administratively schedule an anabolic steroid, several new products can enter the dietary supplement market to take the place of products that have been scheduled. Chemists continue to create new derivative products by substituting and altering the structure of testosterone and then market them as dietary supplements. Often these new formulations have never been clinically tested and the potential adverse reactions in humans are simply unknown. DEA has also identified products in the dietary supplement market that contain small amounts of schedule III anabolic steroids. The presence of these anabolic steroids is not listed on the label of these products. The companies manufacturing, bottling, and marketing them do not hold controlled substance registrations and the manufacture and distribution of these products violate various provisions of the Controlled Substances Act. In conclusion, DEA will continue to identify products that are structurally and pharmacologically similar to testosterone that are masquerading as dietary supplements and classify them as controlled substances. We will continue to investigate companies that market and sell dietary supplement products that are adulterated with controlled substances and pursue the appropriate criminal, civil and administrative remedies to prevent the continued sale of these products. Again, I thank the Subcommittee for the opportunity to discuss this issue and welcome any questions you may have. Chairman Specter. Thank you very much. Our next witness now is Mr. Travis T. Tygart, CEO of the U.S. Anti Doping Agency. Prior to joining the agency Mr. Tygart was an associate in sports law at Holme, Roberts and Owen. A distinguished academic background, Bachelors degree from North Carolina, law degree from Southern Methodist, Order of the Coif. We appreciate you being here, Mr. Tygart and look forward to your testimony. Five minutes. STATEMENT OF MR. TRAVIS TYGART, CHIEF EXECUTIVE OFFICER, UNITED STATES ANTI-DOPING AGENCY, COLORADO SPRINGS, COLORADO Mr. Tygart. Thank you, Mr. Chairman, members of the Committee, Good afternoon. My name is Travis Tygart and I am the Chief Executive Officer of the United States Anti-Doping Agency, or USADA. On behalf of the millions of participants who demand fair, clean, and safe sport that we represent, I appreciate the opportunity to be here today to discuss these important issues. USADA has been recognized by Congress as the independent, national anti-doping agency for Olympic sport in the United States. We are greatly concerned about the ease with which products containing steroids can be purchased in America's supplement storefronts. We are equally concerned that some athletes have tested positive for banned drugs because the product they were using were either contaminated or intentionally spiked by manufacturers. Designer steroids made their leap into America's consciousness in 2003 when the BALCO Doping Conspiracy was revealed. One of the designer steroids found in BALCO was Madol. The story of Madol conforms the alarming migration of designer steroids from underground, clandestine laboratories to mainstream marketing. Since its discovery, Madol quickly rose from an unknown substance to the signature ingredient in nutritional products readily available in retail supplement stores and over the Internet. Unfortunately Madol is just one example of a designer steroid that is marketed as an otherwise legitimate supplement to an unsuspecting public. It is estimated that 10 percent or $2.8 billion is spent annually on performance-enhancing products. Best estimates suggest that there are hundreds to thousands of products currently available that contain one or more of these 20 designer steroids. It is all too easy for the junior high or college athlete to walk into a local health food store or log onto the Internet and see the glossy labels and the bright bold claims of legal and all natural. He thinks, as we all believe, that because these supplements are readily available that they must be safe and effective. What he does not know is that all it takes for a supplement maker to cash in on the storefront steroid craze is a credit card to import raw materials from China, the ability to pour powder into a bottle, and a printer to create a label. What he does not know is that the maker can create a new steroid product, have it on the shelves within a matter of weeks, make unsubstantiated claims, and sell millions of dollars of product before the FDA has the ability to take action. Unfortunately we don't just have to imagine such an athlete because one is here with us today. His name is Jareem Gunter. I have not known Jareem long, but it doesn't take long to realize that Jareem and others like him are sobering examples of how unscrupulous profiteers are trading the health of our children for the pursuit of quick cash. Jareem was fortunate to have some God-given athletic ability and to work hard to earn financial assistance to play baseball at a small college. Jareem decided to look for a legal nutritional product to help his workouts. He did his due diligence, even checking the school's prohibited drug list. And he found a product not on that list called ``Super Draw.'' According to court papers, and its advertising materials at the time, Super Draw even invoked the name of Congress to suggest that because Congress had not added it to the Controlled Substance Act that it was 100 percent legal. Shortly after using Super Draw Jareem started feeling ill and the pain eventually drove him to the emergency room. If he had waited another day, according to the doctor, he might not be alive today, because he suffered acute liver failure. Jareem's pursuit of the American dream was compromised by what he reasonably believed to be a safe and legal product. I want to thank Jareem for being here today and letting me share his story. Today his health is better, but he is forced to be constantly vigilant looking for the return of the symptoms caused by Super Draw. He now works with children at a mentoring center, city of Dreams, in the Bay Area, trying to help other kids stay away from drugs and stay off the streets. Jareem's only mistake was believing that products sold over-the-counter and readily available on the Internet can be assumed to be safe and legal in the United States. Jareem had no way of knowing that a regulatory scheme designed over 15 years ago, for a few companies, selling a limited number of simple vitamins and minerals has been hijacked by unscrupulous manufacturers. He had no way of knowing these companies are exploiting the lack of premarket regulation to sell magic pills while using the reputation of the legitimate food and vitamin industry to cloak themselves with the appearance of safety and propriety. Mr. Chairman, we applaud this Committee for holding this hearing today because now is the time to fix this problem. While the recent FDA raids that were earlier referenced are an important step to protect consumers, the current law severely restricts the FDA and its ability to stop, much less slow down the designer steroid gold rush. Both pre-market and post-market changes are required to give all consumers a truly healthy choice. The legitimate dietary supplement companies truly concerned about the health and safety of our consumers have nothing to fear by the proposals that hopefully will be discussed and are presented in my written testimony. You saw it as committed to being part of the solution. And in the weeks to come we will be announcing an effort supported by the National Football League, Major League Baseball, National Basketball Association, and the United States Olympic Committee and many other entities equally concerned about this topic and committed to solving the problem. We look forward to working with all groups that have a sincere interest in preventing these dangerous products from so easily getting into the hands of our young children. I would like to finally thank this Committee for its time and its interest in this important public health issue and for inviting me to share USADA's experience about the reality of the market. Thank you. Chairman Specter. Thank you very much, Mr. Tygart. We now turn to Mr. Daniel Fabricant, Interim Executive Director and CEO of the Natural Products Association, which is a trade association representing the natural product industry. Mr. Fabricant has his Bachelors degree in Chemistry from the University of North Carolina; Ph.D. in Pharmacology from the University of Illinois at Chicago. Thank you for coming in, Mr. Fabricant. Your testimony is next. STATEMENT OF DANIEL FABRICANT, Ph.D., INTERIM EXECUTIVE DIRECTOR AND CEO, VICE PRESIDENT SCIENTIFIC AND REGULATORY AFFAIRS NATURAL PRODUCTS ASSOCIATION, WASHINGTON, DC Mr. Fabricant. Thank you, Mr. Chairman, Senator Hatch. On behalf of the NPA, thank you for the opportunity to be here today. We represent the interests of more than 10,000 retailers, manufacturers, suppliers, and distributors of healthcare products, dietary supplements, and natural personal care as well as our source for the millions of Americans who use supplements each year. I am also a former college athlete and sports nutrition expert, so I have a deep personal understanding of this issue. First let me say that we welcome this hearing because we share your concerns about illegal steroids. Selling products containing illegal substance is already a crime. Whenever a product containing illegal substance is identified, be they steroids or something else, we are the first to call for throwing the book at the offending party. Anyone caught selling steroids should be prosecuted to the full extent of the law and the natural products industry has worked for years to pass those laws. We believe that tougher enforcement and prosecution, again, to the fullest extent of the law, are the best ways to stop the criminals. The barriers to enforcement are simple: money, manpower and will. We fully support strong rules to ensure what is on the label is what is in the bottle. The criminals who illegally sell steroids do not. We fought for additional DEA enforcement ability, especially concerning the passage of the Anabolic Steroid Control Act of 2004. This law gave DEA additional authority and made it easier for them to schedule anabolic chemicals. We have also worked hard for good manufacturing practice regulations, serious adverse event reporting and the pre-market, new dietary ingredient notification system as well as other important provisions of the Federal Food, Drug, and Cosmetic Act which are used to regulate the space. We also strongly support the FTC's activities against false and deceptive advertising. Criminal activity is always a problem. We are not surprise that criminals defy these laws. That's what criminals do. We are not surprised that criminals ignore current legal requirements to notify the government of their intent to sell illegal substances. So, again, we urge the panel to get tough on criminals. That is why our industry has fought repeatedly for Congress and the Administration to provide the Drug Enforcement Agency, the FDA, the FTC, and other agencies the resources they need to enforce the law. For many years, quite frankly, their budgets were slashed and these resources were lacking. Over the past 12 months, notably at FDA, Congress has provided a significant infusion of funding which has led to a noticeable increase in activity like the enforcement activity last week that made the new cycle. We welcome this increased government enforcement and support efforts to boost resources further. The criminals who illegally sell steroids do not. There are additional enforcement measures that under current law could be used. For instance, the FDA sent 28 warning letters to firms that were illegally marketing products containing steroids in the past 5 years. While warning letters are certainly a good start, how many of those letters were followed up with court action which is well within the authority of the FDA to pursue. Likewise, to our knowledge, DEA has only proposed listing of three additional compounds under the Anabolic Steroid Control Act of 2004 in the past 5 years. These limited enforcement activities are not an effective deterrent and make it far too easy for criminals to stay one step ahead of the law. One place the agencies might concentrate an increasing effort is on those products marketing themselves with street drug names for steroids. I would also say this to any athlete out there, beware of any product that sounds like an illegal steroid. Because if it is posing as steroid or some steroid- like knock off, chances are, it very well might be. And anyone seeking to buy these illegal products is doing such at a great risk to themselves. Finally, it is in our best interest to continue to earn the public's trust and anything we can do to separate the legal, safe, healthy supplement industry from the seedy, fly-by-night, and unsafe world of illegal steroids is worthwhile. Indeed, when any athlete blames an off-the-shelf dietary supplement as the cause for a banned substance being found in their bodies, our industry is always the first one to ask them to name the supplement, name of the manufacturer, and name the store where they bought it. We asked the same question of Donald Fehr who essentially blamed the entire steroids scandal in major league baseball on the legal dietary supplement industry. Clearly, when it comes to drug testing in athletes we all have more questions than we do good answers. So, Mr. Chairman, again, we are glad you are holding this hearing. We support efforts to stop the sale of illegal steroids. We strongly support resources for government agencies to enforcement the law. We stand ready to work with the committee, the government, non-government agencies, and supporting agencies to help identify and remove criminal activity which is the root cause of this tragedy. Thank you. And, again, I look forward to your questions. Chairman Specter. Thank you, Mr. Fabricant. Our final witness is Mr. Richard Kingham, partner at Covington and Burling, concentrating on food and drug law, product liability and product safety. Represented many major pharmaceutical manufacturers and biotech companies as well as trade associations. Graduate of George Washington University, law degree from the University of Virginia. Thank you very much for coming in Mr. Kingham and the floor is yours. STATEMENT OF RICHARD KINGHAM, COVINGTON & BURLING, LLP, WASHINGTON, DC Mr. Kingham. Thank you, Mr. Chairman and Senator Hatch. Manufacturers of legitimate dietary supplements share the concerns that you have with the distribution of body-building products that contain anabolic steroids. The adverse effects of those products are well-known and those substances should not be available for general use. It is important to recognize, however, that the vast majority of dietary supplements are in no way implicated by the matters being discussed in this hearing. More than 150 million Americans regularly use legitimate dietary supplements and those products offer significant health benefits to the people who use them. There is, moreover, and this is the main focus of my presentation, no need to amend existing legislation to deal with anabolic steroids. The Food and Drug Administration and the Drug Enforcement Administration both have ample authority to deal with the problem by making use of existing statutory powers. Congress has twice amended the Controlled Substances Act to give DEA special power to regulate anabolic steroids. The most recent amendments enacted in 2004 greatly expanded the list of substances subject to regulation under the statute to include metabolic precursors, salts, esters and ethers of listed substances. Congress also authorized DEA to add new substances to the relevant schedule without proof of anabolic effect, thus simplifying the burden for administrative scheduling actions. Persons who traffic illegally and scheduled anabolic steroids are liable to severe criminal penalties. FDA also has broad powers to prevent distribution of products containing anabolic steroids under existing provisions of the Federal Food, Drug, and Cosmetic Act. Although many of the products that are currently promoted in stores and in the Internet are labeled as dietary supplements. They seldom, if ever, are in compliance with dietary supplement provisions of the law. FDA has multiple enforcement tools which, in fact, are set out in Mr. Levy's written testimony to this hearing, to deal with products of that type. These include provisions of the Federal Food, Drug, and Cosmetic Act that relate both to drugs and to dietary supplements. Many product, for example, are advertised with claims that fall within the new drug provisions of the Food and Drug Act and are, for this reason, both misbranded and in violation of statutory provisions that require pre-market approval of new drugs. Others contain new dietary ingredients for which required pre-market notifications have not been made to FDA under the dietary supplement provisions of the statute. Those products are legally deemed adulterated and are liable to the full range of enforcement measures under the statute including seizures, injunctions, and criminal prosecution of responsible persons. The provisions of the Food and Drug Act governing pre- market submissions for new drugs and new dietary ingredients do not require FDA to prove that a product is unsafe, but only that the required pre-market procedures have not been followed. Thus, the burden of proof on the government is minimal and experience suggests the courts are willing to interpret the provisions of the act liberally to protect the public against unlawful products. For this reason a warning from FDA backed up with a credible threat to take formal enforcement action is usually sufficient to achieve compliance. FDA has, as Mr. Levy has stated, issued a number of warning letters to companies that distribute products containing anabolic steroids and it has the capacity to issue more letters and to take formal enforcement actions as appropriate. The Food and Drug Act also effectively addresses the problem of so-called ``designer drugs'' that are formulated to circumvent the scheduling provisions of the Controlled Substances Act. Anabolic steroids that are not listed in the relevant schedule will typically be new within the meaning of the provisions of the Food and Drug Act that require prior approval of new drug applications or submission of new dietary ingredient notifications. Now, as has also been mentioned, and recent reports suggest, that there are some products on the market whose labeling does not declare the presence of anabolic steroids that are detected in laboratory assays. Those ingredients might be surreptitiously added to what would otherwise be lawful products. But those practices are clearly illegal under multiple provisions of existing law. The Food and Drug Act, for example, prohibits the addition of the deleterious substances to legitimate products. It imposes special requirements for good manufacturing practice for dietary supplements that include controls on contaminants and the ingredients that are added to products and it requires label disclosure of ingredients. As Dr. Fabricant said, what's in the bottle must be on the label of a dietary supplement. As with the provisions of the law relating to new drugs and new dietary ingredients, these provisions can be enforced with the full range of sanctions under the law. For these reasons I do not believe that amendments to the law, especially a pre-market approval requirement would be appropriate. Existing law, if properly enforced, is sufficient to assure protection of the public. A pre-market approval requirement for these products, which, by the way, they were not subject to prior to 1994, would only add to the expense of bringing them to the market and increase administrative responsibilities at FDA. Body-building products constitute less than 10 percent of the market for dietary supplements in the United States. And the products that are the subject of this hearing are a tiny fraction of that market segment. It would be a mistake to alter the carefully crafted regulatory framework for all dietary supplements simply to deal with a small number of outlier products that can be effectively controlled under existing statutory provisions. Thank you. Chairman Specter. Thank you, Mr. Kingham. We will now proceed with a 10-minute round of questioning. Mr. Tygart, in your judgment are the existing laws adequate to protect the public from dietary supplements--represented as dietary supplements which have steroids or steroid substances? Mr. Tygart. I think clearly no, from our perspective. Chairman Specter. You have Mr. Jareem Gunter, would you have him step forward and let us hear what happened to him. Mr. Gunter, would you mind stepping forward? Mr. Tygart has described your experience. Would you tell us what happened to you in your own words? Mr. Gunter. Yes. So I went to college in Missouri, Lincoln University, to be exact. And while I was in school I ended up getting sick. I went home for the summer and I found a supplement on line that I thought would be healthy for me or would be something that wouldn't hurt me. In the beginning of the year our coach comes in with the health instructor that comes in and gives us a list of all the substances that we cannot take. So the list was pretty in depth. I looked at the list and I went to GNC and compared and contrasted things that I could not--that I wasn't able to take. And most things that were at GNC I could not take because it had some--either the supplement was on there or something that was in the supplement was banned from NCAA or conference. So I went back to the computer and was trying to figure out things I could take. I researched for about three to 4 weeks different products that I could take that would be legal that wouldn't be harmful to me. When I found the product that I took, it was called Super Draw. When I found it I thought I had found a diamond in the rough, something that I felt that wouldn't harm me at all. And also it would be helpful to me. Chairman Specter. Did you take it? Mr. Gunter. Yes. Chairman Specter. And did it harm you? Mr. Gunter. Yes. Chairman Specter. And in what way did it harm you? Mr. Gunter. It actually gave me liver failure. So I was in the hospital for a while. Chairman Specter. Gave you what? Mr. Gunter. Liver failure. Chairman Specter. Liver failure? Mr. Gunter. Yes. So I was in the hospital. Chairman Specter. How long were you in the hospital? Mr. Gunter. It was about 4 years ago, so I--to be exact, it was anywhere between four to 6 weeks I was in the hospital. And it constantly wasn't four to 6 weeks in and out, I was in there for good and couldn't leave. Chairman Specter. And were you advised as to what potential consequences there could have been from taking that supplement of your liver failure? Mr. Gunter. So the doctor let me know that throughout my life it could come back at any time. As of right now I am OK. But the doctor told me to be aware of whatever I do just to make sure because it could come back at any time. Chairman Specter. Mr. Levy, you testified that there are problems with misleading labeling, there are no quality controls, you issue warnings and public health advisories, some 28 warnings, you specified. You listed a long line of problems, pulmonary embolism, stroke, kidney failure, liver problems. In the absence of preclearance is there any effective way for the FDA to deal with these problems? Mr. Levy. I would answer that by saying that this is a very challenging area in which to regulate because it's difficult to find violative products and it can be difficult to act on those products. Chairman Specter. Did Mr. Tygart accurately describe all that it takes to put one of these dietary supplements on that market? Mr. Levy. I don't recall exactly what Mr. Tygart said. Generally ? Chairman Specter. He said you could get a substance--he testified just a few minutes ago; were you listening? Mr. Levy. Yes. Yes. Chairman Specter. Well, he testified that you could take a substance, you could put it in a bottle, you could put some liquid in it, then you could get a printer and put a label on it and sell it. Mr. Levy. That is . . . Chairman Specter. Did he actually describe the process? Mr. Levy. Yes, I think that's quite possible. That probably would not be legal, but, yes, it's possible. Chairman Specter. Well, we know it's not legal and Mr. Kingham and Mr. Fabricant had decried these illegal practices to Senator Hatch. But the question is, how do you safeguard the public against that? Mr. Rannazzisi, you described what you have to go through in a very elongated process. Does DEA have any effective way of dealing with this problem considering the description you made as to the lengthy kind of an investigation, the kinds of notice you have to put out, the kinds of public hearings there has to be, and the opportunity for people to substitute materials while you're in that process so you have to start all over again? Mr. Rannazzisi. Sir, the process is extremely frustrating because by the time we get something to the point where it will be administratively scheduled, there are two to three substances out there to replace it. Chairman Specter. Never mind whether it's frustrating, is it possible for it to be effective? Mr. Rannazzisi. At the present time I don't believe we are being effective as far as controlling these drugs; no. Senator Specter. Mr. Fabricant, you accurately depict the situation as having or Senator Hatch said, you don't use the same words, ``bad actor'', but how is it realistically possible given what the Food and Drug Administration has by way of resources to deal with this problem without preclearance? Mr. Fabricant. Well, I think you touched on it as a matter of resources. I think all of us at the table and those distinguished members of the Committee were all happy with the recent activity last week. I think that calls directly for the need for more enforcement. That is the critical issue here. Chairman Specter. Well, how about it, Mr. Levy, is it realistic for you to follow these people after the fact? How many of these so-called ``bad actors'' do you think there are out there? Mr. Levy. I think there are quite a few bad actors out there. Is it realistic to follow after every one? No, I don't believe so. So, you know, what we have chosen to do is to try to be strategic in the way we approach enforcement actions and to try to get the biggest bang for our buck, if you will. Chairman Specter. Well, the biggest bang for the fewest bucks may not be a very big bang as big bangs go. Mr. Tygart, come back to the witness stand. What is the impact on these dietary supplements which have steroids with respect to the younger generation like Mr. Jareem Gunter? Mr. Tygart. Well, I think it's huge. And while my fellow panelists said it's only 10 percent of the $28 billion industry or 10 percent of the 150 million consumers, 10 percent is 15 million if my math is right. That's huge. And a lot of those are our kids. Just like Jareem, they are going to stores to buy these to be the best that they can be and pursue their American dream. Chairman Specter. How effective is the professional leagues' anti-doping policy? Mr. Tygart. The leagues are part of this effort. They haven't yet adopted the world anti-doping code, which we think is the gold standard for anti-doping programs and is what our Olympic athletes---- Chairman Specter. They have not? Mr. Tygart. They have not. Chairman Specter. And why not? I'm not sure. We wish they would. We frankly think they should if they want the most effective policies in place. But they've decided not to. Chairman Specter. And what problems are caused by the decision by the Court of Appeals for the Eighth Circuit stopping the enforcement by the NFL of the disciplinary action taken against the two athletes? Mr. Tygart. I think it's potentially big and that it could gut the effectiveness of the programs. If every state's law---- Chairman Specter. What were the facts of those cases, if you know? Mr. Tygart. As I understand them from the Minnesota case, and there was a parallel case down in Louisiana, but there were three Minnesota Vikings that were using an over-the-counter product advertised as a dietary supplement for weight loss. Chairman Specter. Did they have adequate notice that they were doing something which could get them into that kind of trouble? Mr. Tygart. From what I understand of the facts, they were told, as all of our league-level athletes are told, these products are dangerous. Chairman Specter. And how about with J. Ramero, was he adequately on notice? Mr. Tygart. I think he was adequately warned. Chairman Specter. Why do you say that? Mr. Tygart. Well, I know the policies are at that level as well as in our world to notify athletes of the potential risk of positive tests in taking any of these supplements. Chairman Specter. Well, who notifies the athletes--the league? Mr. Tygart. I would think the league and hopefully the union, if they are there to protect their players, they probably have that same obligation. Chairman Specter. And what were the facts of the Mark McGuire case? Mr. Tygart. I think it came out publicly that he used andro. I don't know that he received any sanction for his use of androstenedione. And that was obviously before androstenedione was controlled as a schedule III controlled substance which it is now. Chairman Specter. Whether he had a sanction, he declined to testify before a Congressional Committee on the privilege against self incrimination; right? Mr. Tygart. That's right. That's exactly right. Chairman Specter. Do you think there is any doubt that Congress has the authority to legislate to overrule the Court of Appeals opinion in the Eighth Circuit and enforce those laws? Mr. Tygart. I think so. Chairman Specter. My red light just went on, so I am going to yield now to Senator Hatch. I am going to observe that time limit. Senator Hatch. Senator Hatch. This is an interesting hearing. Like everything else, law enforcement can only do so much. But the laws are certainly clear that these type of products are illegal. And we wrote them very carefully so they would be. What it really basically comes down to, are we going to put the funds in to be able to do the work that has to be done? I think FDA, Mr. Levy, is overburdened as it is, without question. And we treat it like a wicked step-sister around here even though, you know, I passed the FDA Revitalization Act in the early 1990's and yet we are still not finished with that class out there. It didn't even start until around 2000 and I blame Congress for a lot of these things and we don't give you enough support. But let me go to you, Mr. Rannazzisi. I want to thank you for your testimony here today. In your prepared statement you reference the Anabolic Steroid Control Act of 2004. As you know, I was the prime sponsor---- Mr. Rannazzisi. Yes, sir. Senator Hatch [continuing]. Of that legislation with former Senator Biden, now Vice President Biden. In that bill we followed the recommendations of the DEA to refine the definition of what a steroid is and we followed your advice. The purpose of the amendment, the amended definition was to allow the DEA to administratively classify additional compounds as schedule II anabolic steroids. In preparation for this hearing, I was reviewing your previous testimony before the House Committee on the Judiciary from March of 2004. In that testimony you expressed the support of the DEA for the Anabolic Steroid Control Act of 2004. In speaking for DEA you appealed to Congress to provide a legislative remedy of refining the definition of a steroid. In your testimony you said, this would, ``give us new tools to more quickly and effectively classify new steroids as controlled substances.'' And as I stated, Congress did that just 5 years ago. We gave the DEA what you basically asked for. However, I noted in your prepared statement that the DEA is in the final stages of classifying three substances scheduled under the Anabolic Steroid Control Act of 2004. You also stated the DEA is in the process of reviewing three other substances. Now, can you tell me why 5 years after Congress expanded DEA's authority only three substances have been scheduled? And I'm puzzled as to why three substances, which by your own testimony, have not been finalized yet, will be the first three scheduled under the Anabolic Steroid Control Act of 2004? Is this also a lack of resources? Mr. Rannazzisi. No, sir. If we go back to the 1990 Act, if you remember, the 1990 Act required us to show promotion of muscle growth which was virtually impossible for us. We looked at andro for almost 5 years by independent labs and we still, up until the time the act was passed in 2004, could not show that andro promoted muscle growth. That's why we asked for the removal of the promotion of muscle growth. While it made our job a lot easier, it, by all means, was still a very difficult process. The problem is, when we schedule a drug it's got to be based on scientific evidence. It takes at least six to 8 months just to do the cellular studies required to schedule a drug. We have to show that that drug is not a cortical steroid, it is not a progesterone, and it's not estrogen. That requires several binding studies--cellular binding affinity studies. These are done by outside labs. It takes a while to get all of this evidence necessary to go through the formal process of scheduling. Plus we have public comment. Plus we have to go through the initial notice of proposed rulemaking. And we have to vet it through all the different agencies. This is not a process that can be done overnight. My colleagues on the panel make it sound like it's an easy process. It is far from easy. I think doing those first three will help us streamline the process, but I can't tell you it is going to be much quicker than it is right now. Senator Hatch. Does DEA have a memo of understanding with the FDA but to assure that the two agencies are effectively coordinating their activities relative to steroids? Do you work together? Mr. Rannazzisi. We do work together. In fact, on several investigations DEA and FDA are working together. We just met with the OIG from FDA that were looking at other products in the pharmaceutical chain. We work together. It is not a question of us not working together. It is a question of the process, the scheduling process. I think we are working together fine. Senator Hatch. Why haven't you come to Congress then and let us know that you need changes in the law? I mean, frankly I'm not sure you do. We are always going to have bad actors. We are always going to have people who are criminals. It seems to me there's enough legal authority there to get these bad substances off the marketplace. But I understand that there are some pretty wicked, evil people out there that are constantly coming up with these. Does FDA tell you when they deny a new ingredient notification that could involve an anabolic steroid? Mr. Rannazzisi. If I may, sir, could I just talk to one of my scientists? Senator Hatch. Sure. [Pause.] Mr. Rannazzisi. No, we don't receive a warning scientist to scientist, no. Senator Hatch. Do you outsource some of this analysis or do you do it with your own chemists? Mr. Rannazzisi. No. Well, the chemical analysis we do. But the studies, the cellular studies, animal studies, that all has to be outsourced. We can't do that. Yes, sir. Senator Hatch. Do you check with FDA to see if they have received a new dietary ingredient notice for a compound you're looking at possibly listing under the Controlled Substances Act? Mr. Rannazzisi. Not in regard to anabolic steroids, sir. Senator Hatch. Let me ask you, Mr. Levy, on page 11 of your testimony in the first full paragraph, all three examples that you present would be illegal under the 1994 DSHEA law. In every example under DSHEA they would be illegal. Now, FDA has the authority to take those products off the market and tell me why that isn't happening or is it happening? If it isn't, then I want to know what we can do to help you. I mean, I made it pretty clear, I think, that you don't have the resources to be able to do everything you need to do in these areas. And I blame us for that because we've tried to get you the resources and we just haven't been able to be as successful as I would like us to be. Mr. Levy. I would say that I think that we are doing what we can. You know, we have had an agency-wide reemphasis recently on drug safety as a part of this. I think that we have taken our recent actions--I'm struggling to find what three ingredients you are specifically referring to. But I would say that I think that the ingredients that we mentioned in my testimony, we have at some point taken some enforcement action with respect to all of those. Senator Hatch. Let me ask just a couple of questions to Mr. Fabricant and Mr. Kingham. Has the Federal Government, specifically the FDA and the DEA reached out to the industry to work in a collaborative manner to address issues associated with products containing synthetic steroid ingredients that are marketed as dietary supplements? Mr. Fabricant. Not in any formal manner. There is no memorandum of understanding or agreement in that capacity. Senator Hatch. Do you work together at all? Mr. Fabricant. We do from time to time, but it is on an informal basis and we have notified them of ingredients that are of concern to us that they should be monitoring for. Senator Hatch. Mr. Kingham, what is your response to the concerns raised by both the FDA and DEA about the difficulties encountered when they try to pull products containing steroids off the market? Mr. Kingham. Well, Senator Hatch, first of all, let me point out, and I think from reading Mr. Levy's testimony, that we agree on this, the products that this hearing is about require some form of submission to FDA before they enter the market, either a new drug appointment or a new dietary ingredient notification. And, moreover, for multiple other reasons are almost always in violation of other provisions of the Federal Food, Drug, and Cosmetic Act. If people violate existing requirements for new drug application submissions and new dietary ingredient notifications, why would we believe that they would comply with some new pre-market approval requirement that you would put in the law? The answer is, I think, that the FDA, in particular, has to use the authority it already has to bring severe, serious, informal enforcement actions against violators. Senator Hatch. Does it have enough authority? Mr. Kingham. I think they do, Senator. I believe they do. And I think looking at Mr. Levy's testimony that he and I agree that the products that we're discussing today are almost invariably clearly in violation of law. The question is whether the law will be enforced. Warning letters are good, seizure actions are a good thing as well. But eventually if people float the law, I believe that criminal prosecutions may be appropriate. Senator Hatch. Thank you, sir. My time is up, Mr. Chairman. Chairman Specter. Thank you, Senator Hatch. I will now proceed with 5-minute rounds. Mr. Kingham, your testimony is, documented in the written part submitted, more than 150 million Americans regularly use legitimate dietary supplements. And you say that body-building products constitute less than 10 percent. So by your statistics you have something in the range of 15 million people, somewhat less than 15 million people use body-building dietary supplements. Now, given the facts of life as to what is happening in this field, don't you think it's important that Congress should modify the law to have some preclearance requirements on these body-building supplements? Mr. Kingham. Well, Senator, first of all, what I meant to say and I am sorry if I wasn't clear is that the whole body- building segment of the dietary supplement market is about 10 percent. But, of course, that includes vitamins and minerals and other products that are specifically marketed to body- builders. It is a tiny fraction of the business that comprises the products we are talking about. Chairman Specter. Now, wait a minute. Wait a minute. You have a 150 million people who take supplements? Mr. Kingham. Yes. Chairman Specter. So you have 10 percent, you say, on body- building supplements, that's 15 million people; am I correct? Mr. Kingham. You are absolutely right. Chairman Specter. That's a lot of people at risk. Mr. Kingham. You are correct. But that includes a market segment to which legitimate dietary supplements that are perfectly safe and perfectly appropriate are promoted. Chairman Specter. Well, no doubt about the fact that many are legitimate that are not causing damage. Mr. Kingham. Yes. Chairman Specter. But you still have millions of people being exposed to the problem. Now, I agree with you that more has to be done on the regulators. Now, let me turn to you Mr. Rannazzisi. You have Super Draw which was on the market which Mr. Jareem Gunter used. In the affidavit issued by your agency says that Super Draw is a synthetic anabolic steroid. But yet Super Draw is not listed on schedule III as a prohibited anabolic steroid; why not? Mr. Rannazzisi. It is one of the substances that we are looking at. Chairman Specter. What? Mr. Rannazzisi. It is one of the substances that we are looking at. It is out on the market. It is not---- Chairman Specter. Wait a minute, what are you looking at? You've got the affidavit which your agency filed, what more is there to look at? Mr. Rannazzisi. It still has to go through the scheduling process, sir. It still has to go through the scheduling process. Chairman Specter. Wait a minute. You took an affidavit that it was an anabolic steroid. Mr. Rannazzisi. Yeah. Chairman Specter. When you say something that is false in an affidavit filing we may find a criminal case here, but in the wrong direction. But when you have identified Super Draw as an anabolic steroid and you have a case of a young man who has been hurt, is there any conceivable excuse for your agency not having listed it on schedule III? Mr. Rannazzisi. Sir, I can't just list something on schedule III. It still has to go through the scheduling process. It must go through the scheduling process. I don't have the authority just to say, I want this drug scheduled. There's a process through the Administrative Procedures Act---- Chairman Specter. You can take an affidavit that it's an anabolic steroid but not put it on schedule III? Would you like us to change the law to simply the scheduling process? Mr. Tygart. We would, Senator. [Laughter.] Chairman Specter. We understand that. Mr. Tygart. And worse than that---- Chairman Specter. We are going to give Mr. Tygart's testimony right under your name if you don't speak up. [Laughter.] Mr. Rannazzisi. I apologize sir. Chairman Specter. Let me turn to you, Mr. Levy. My time is about up and I want to observe the time. Ethodura was sold as a dietary supplement banned by the FDA in 2004, but the ban occurred 10 years after FDA issued its first advisory and only after FDA had received thousands of reports of adverse effects, including deaths. What possible explanation is there for that kind of a delay? Mr. Levy. I am going to turn to Dr. Francos on this. Chairman Specter. Do you want to consult your lawyer? [Laughter.] Mr. Levy. My dietary supplement expert. Chairman Specter. Well, let's come back to you Mr. Tygart, since nobody else seems ready to---- Mr. Tygart. Worse than the fact that it's not in the process of being scheduled, the very same product that was identified by affidavit in that search warrant, certain products in that search warrant were seized. You can still buy that designer steroid over the Internet. We purchased this through Amazon.com and it has the same designer steroid that should be controlled being sold today by other companies. Chairman Specter. Mr. Rannazzisi, we are about to close this hearing, and Mr. Levy, too, you can supplement your answers to the Committee in writing. Senator Hatch. Senator Hatch. When you were talking about 10 percent, you didn't mean 15 million people, you meant there might be that many who are taking some sort of dietary supplements and some may even be taking some body-building supplements as well. Mr. Kingham. That's correct. Senator Hatch. That doesn't mean all 15 million were taking these---- Mr. Kingham. No, I don't think so. Senator Hatch [continuing]. Banned substances or the substances that should be banned? Mr. Kingham. That's right. And the other thing I really want to underscore, it's terribly important, I believe, and I don't think the FDA disagrees, that virtually all the products we are talking about require, already, under current law, some kind of submission to FDA before they enter the market. These people are just breaking the law. They need to be punished. They need to be caught, and the law needs to be enforced. But the law is not the problem. The problem is enforcement. Senator Hatch. Well, that is my contention. I think we wrote the laws well. Now, let me ask you--let me see if I can find my notes here--Mr. Tygart, on too many occasions athletes have appeared before the cameras and apologized for testing positive for a banned substance. In some cases the athlete may not have intended to ingest a substance banned by his or her collective bargaining agreement or rules of competition. However athletes sometimes fail to assume personal responsibility when they make a mistake, especially in cases that if they had consulted with their league office or Olympic Committee the issue could have been avoided from the onset. Now, that does not excuse bad actors in the sports nutrition industry. However, athletes skirting the truth need to be held accountable for their own actions, and I think you certainly have indicated you believe that. In your prepared statement you stated that the USADA's mission is to, ``preserve and protect the health of athletes.'' Can you explain to me the support USADA provides to athletes when they are considering taking a supplement? For example, is there a dedicated telephone number or a hotline that athletes may call to seek advice on supplements? I ask this because in a recent case a high-profile athlete failed to call his league's hotline and the result was he tested positive for a banned substance. Now, the league representatives have stated time and time again that had the athlete called the hotline he would have been told not to ingest that product. Do you have the same system for your---- Mr. Tygart. We do. We are very clear in our educational materials to the millions of athletes that technically fall into our jurisdiction. That given the poor regulation in the dietary supplement market, any product you take from a multivitamin to an anabolic-type product, you run a risk of testing positive. And, of course, I don't believe every athlete that stands up and says they got it from a supplement. I don't think that's the case. We have had at least two cases, one the Jessica Hardy case, one the Kicker Vinsel case where Kicker Vinsel was taking a multivitamin. And a panel after a full litigated case determined that the multivitamin that he took was what caused his positive test for a steroid. The same in the Jessica Hardy case. Mr. Fabricant. May I make a point on the Kicker Vinsel case? I believe it was overturned later on appeal and then settled out of court. Senator Hatch. OK. Well, Mr. Fabricant, you are also a pharmacist? Mr. Fabricant. Pharmacologist. Designing drugs; yes. Senator Hatch. As I understand it, the report said there were upwards of 100,000 people who may in part lose their lives because of pharmaceuticals in this country. Is that way off the beam? Mr. Fabricant. Adverse event reports? Senator Hatch. No, I'm talking about actually are harmed by ingesting pharmaceuticals that really they shouldn't have taken. Mr. Fabricant. I would say that, you know, we worked hard to put the adverse event reporting system in place and we haven't seen any numbers anywhere near that with respect to that. Senator Hatch. OK. Well, then in dietary supplements do you see any real--and I'm talking about dietary supplements that are legal--do you see any real adverse events? Mr. Fabricant. With the legal dietary supplement world we see the system as working. We have had issues, we've had signals, we've had notices, and they've all been acted upon very quickly by industry. We have had recalls--voluntary recalls where the industry acted very responsibly based on only 14 products--14 adverse event reports. You compare that with other industries, other consumer product industries it exceeds 60,000 for them to even take action against a pharmaceutical on the market. So, you know, for the assertions that the industry isn't tightly regulated, I would advise them to look at just how quickly the supplement world has responded in a short time. Senator Hatch. Our system is working? Mr. Fabricant. Yeah, very well. Senator Hatch. All right. Now, let me ask you this, Mr.--I am having trouble---- Mr. Rannazzisi. Rannazzisi. Senator Hatch [continuing]. Of the 58 dietary supplements mentioned in your testimony that purportedly contain one or more of the three steroids in the final stages of the scheduling process, how many of them are currently on the market? And isn't it true that the FDA has the authority to remove any of those products under the laws that we've passed here? Mr. Rannazzisi. Yes, sir. I think our scientists have talked about those substances. Some are, some aren't. We don't know because this is over a period of time. I have the list of the drugs and the names of the drugs that are on the market or were on the market when we did our checks. And I believe that list was shared to FDA. I have the brand names. If you would like I could submit it for the record. Senator Hatch. I think it would be good if you submitted that. Chairman Specter. Well, thank you very much, gentlemen. I am constrained to conclude the hearing by four. Senator Hatch, would you like to make a closing comment? Senator Hatch. Thank you, Mr. Chairman. As usual you are always courteous and a dear friend. But let me just say this to you. We have done our very God- level best to try and make sure these laws have the strength in them to be able to be implemented. I still believe that they are well put together. If we had premarket approval the whole industry would be gone and we would all be bereft of what really are very, very good vitamins and minerals, amino acids, and herbal products. Because to go through the safety and efficacy process of the FDA can cost up to a billion dollars or more and even as many as 15 years. So there is no way anybody in the dietary supplement industry could go through that. But I think by and large the industry is a highly competent, highly good industry. But it is inexcusable that we permit any of these anabolic steroids to be on the market. Mr. Tygart, I appreciate what you are trying to do. It is a tough, tough thing because all of us hate to see a star athlete get chewed up, especially in the Olympics. But I hate to see it in professional sports too. And, you know, sometimes it really isn't their fault, many times it is. But I just hope that we all will work together. And if you can give us better ways of amending these laws or making them even better than they are, I would be happy to consider that. But I think there's enough language in the laws, in these various laws that we've passed that I've personally been a proud sponsor of for FDA to do the job, for DEA to do the job, and of course hopefully helpful to you on USADA group as well. There is no desire on any of our part to have anybody illegally use anything. And we certainly don't want our folks in this country or any other country to be subject to deleterious substances, which, under the DSHEA law, FDA has an absolute right to take off the marketplace automatically. So it isn't like the laws aren't there. The question is, I would suggest to all of you--and this is my last sentence--that you really push the Congress to give FDA the resources it needs to do this job. The law is there. All we have to do is have the resources. Thank you, Mr. Chairman. Chairman Specter. Thank you, Senator Hatch. The efforts to give FDA more resources on many, many lines has not been successful. I think there are some things that need to be done here, some real questions. And I think the Drug Enforcement Administration needs to answer the question which hasn't been answered here today about why Super Draw was not placed on the schedule III list after it was identified and an affidavit had filed as being an anabolic steroid. And if you need some revision on your listing, let us know. Don't wait for us to come to you. And the business about ephedra being identified in 2004 with a ban 10 years after the FDA first issued its first advisory and only after the FDA received thousands of reports of adverse effects, including deaths, that's not satisfactory. When Senator Hatch talks about the legitimate part of the industry, I think it's true, vastly legitimate. But still, if you have 15 million people who were taking supplement with steroids and although some of that is legitimate, we're exposing millions of people to problems. So that from my view, I think we need to look at some preclearance issues here unless we find some way to solve it otherwise. And the leagues have a question to answer which the Subcommittee is going to put to the leagues. Why haven't you adopted the anti-doping policy? So perhaps the hearing was useful for all the questions which have emerged. We thank you all and we especially thank Mr. Jareem Gunter and wish him well and wish you all well. That concludes our hearing. [Whereupon, at 4 p.m., the hearing was concluded.] [Questions and answers and submissions for the record follow.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]