CRN CEO responds to dietary supplements article by 'Sports Illustrated'

WASHINGTON The Council for Responsible Nutrition on Tuesday strongly criticized an article — “What you don’t know might kill you” — that was published in the May 18 issue of Sports Illustrated for mischaracterizing the dietary supplement industry. The industry, the association charged, has suffered from a chronic dose of misperception around safety and regulatory requirements in part because the Food and Drug Administration has not actively utilized enforcement powers afforded the agency under the Dietary Supplement Health and Education Act of 1994.

Steve Mister, president and CEO of CRN, noted that the Sports Illustrated article suggests DSHEA severely curtailed FDA’s ability to regulate dietary supplements — for example, shifting the safety burden of new supplement products to FDA and eliminating any pre-market approval authority.

“Contrary to [former FDA commissioner] Dr. David Kessler’s statements [in the Sports Illustrated article], and to common misunderstandings about the law, rather than shifting the safety burden to FDA, DSHEA actually provided FDA with new enforcement authority not previously available,” Mister argued. “Dietary supplements were regulated as a category of food prior to DSHEA, and continue to be regulated as a category of food today. Further, FDA never had legal pre-market approval authority for dietary supplements — DSHEA did not change that fact.”

Instead, Mister suggested that the FDA, under Kessler’s leadership, did not enforce DSHEA at the time of its creation, and that the agency has only recently begun to realize the full regulatory powers afforded FDA under DSHEA.

“The extreme examples the article describes appear to be a product of DSHEA, when in fact, they more likely result from FDA’s lack of enforcement of that law over the past 16 years, starting with Dr. Kessler’s decision to allow FDA to turn its back on supplement regulation once DSHEA — a bill he strongly opposed — was enacted,” Mister said. “In actuality, FDA chose to sit on its collective hands, refusing to take advantage of the new tools it now had [under DSHEA], even ignoring the simplest requirements from Congress to issue new Good Manufacturing Practices specific to dietary supplements. … It wasn’t until Dr. Mark McClellan became FDA Commissioner in 2002 that the agency emerged from its fog of inertia concerning the dietary supplement industry, and began to look at and use some of the additional authority provided to it by DSHEA,” he said. “In the past five years or so, the industry and the agency have both come a long way: with industry lobbying for GMPs that are supplement-specific and FDA finally issuing these rules; with industry urging for passage of a mandatory reporting system for serious adverse events, and FDA getting the system up and running; and with FDA taking strong enforcement action — ranging from warning letters to significant fines to product seizures against companies that manufacture unapproved drugs masquerading as dietary supplements.”

Mister also took exception to the suggestion that such performance-enhancing drugs as anabolic steroids are legal under current DSHEA regulations, and that it’s up to the Drug Enforcement Agency to track down and stop production of these supplements containing illicit ingredients. That couldn’t be further from the truth, Mister argued.

“Under DSHEA, most of these substances are not even legal dietary ingredients, i.e., they cannot be legally included in dietary supplements, period,” he said.

For starters, supplement manufacturers can’t legally go to market with a new-to-the-U.S. supplement ingredient without first filing a “new dietary ingredient” notification to FDA. Products containing new ingredients without that NDI notification are adulterated under the law, Mister said.

Couple that NDI filing requirement with the fact that, under current GMPs, manufacturers must also seek and secure FDA approval of any new manufacturing plant, and the FDA has de facto powers to prevent potentially illegal substances marketed as supplements from ever reaching the market.

“[DSHEA] provides that any food, including supplements, that is adulterated is subject to a range of penalties including seizure, fines and imprisonment for the manufacturer, Mister said. “Completely independent of DEA’s jurisdiction in this area, FDA has clear and powerful authority to address supplements that contain performance-enhancing drugs or anabolic steroids. These various new chemical cocktails are illegal under DSHEA simply because no NDI has been filed for them or because they are not legal dietary ingredients in the first place.”

“Every industry has its outliers, the underbelly that ignores the laws, cuts corners in manufacturing and puts profits ahead of long-term confidence of their consumers,” Mister added. “This industry is no exception, but that is not the fault of the law itself. No law works unless it is enforced.”

Mister also noted that the Sports Illustrated article overstated the size of the sports nutrition industry, and in so doing overstated the size of the potential bad players within that industry.

“[The] Sports Illustrated’s article … starts by referring to sports nutrition supplements as a ‘$20 billion obsession,’ portraying the industry as eight times larger than it is,” commented Steve Mister, president and CEO, CRN. “The entire dietary supplement industry has U.S. sales of approximately $24 billion, with vitamin sales alone representing approximately $10 billion of the total market. But the sports nutrition supplements that are the focus of this article represent sales somewhere closer to $2.5 billion.”

Mister noted that the Sports Illustrated estimate did include sales figures from categories outside of dietary supplements, such as functional foods, for example.

“Ironically that inflated figure seeks to portray a problem that, if it exists at all, represents only a very small portion of companies in the supplement industry not representative of the mainstream companies that manufacture products that consumers choose to include in their cadre of personal healthcare options,” Mister said.