Two weeks ago we told you about a “sneak” anti-supplement provision (Section 4901) slipped at the last moment into the House Wall Street Reform and Consumer Protection Act (H.R. 4173). This “below the radar” provision is intentionally written in unintelligible legalese that can barely be deciphered by a legislative or legal expert (here is the actual language if you want to try to decipher it yourself). Reduced to understandable language, this section gives the Federal Trade Commission (FTC) broad new rulemaking and enforcement authority.
Although this proposed new FTC authority can be used against a wide variety of industries, it particularly threatens the dietary supplement industry and consumer access to dietary supplements. Why? Because the FTC has adopted a destructive policy toward supplement companies that presently can only be applied to those few companies signing FTC consent agreements. If the new provision becomes law, the FTC could and almost certainly would apply its policy to all supplement companies. The likely result is that many supplements and supplement companies would disappear. (More information about this is available in our alert.)
Drug companies would of course be delighted to see supplement companies put out of business by harsh FTC requirements. They know that supplements are their chief potential competition, are often more effective than drugs, are often less toxic, and are always far, far less expensive.
Supplements are already regulated by the FDA under DSHEA. If the Waxman provision becomes law, the FTC will gain the power to override the limited protections for supplements that already exist under DSHEA. The FDA would still have to respect DSHEA, but the FTC would be under no such constraint.
Many thousands of you have taken action though our website and requested your Senators not to include Waxman’s dangerous FTC power expansion measure in the Senate version of the Wall Street Reform bill. We are pleased to report that the Senate is listening.
The Senate’s Restoring American Fiscal Stability Act of 2010 (S.3217) is moving its way though the chamber right now. Just as we expected, an effort was made by Senator Rockefeller to convince Chairman Christopher Dodd (D-CT) to include Waxman’s FTC provision into the bill before it came to the floor as part of the “managers amendment.” If this had succeeded, the battle would have been over. But we headed this off by making the provision too “controversial”, as Senator Dodd reportedly said.
Still, the fight isn’t over. The bill is on the Senate floor and a senator could still offer the now controversial FTC expansion measure as a floor amendment, although a floor amendment would be much easier to defeat.