[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]



 
                  SUBVERSION OF DRUG TESTING PROGRAMS

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                      OVERSIGHT AND INVESTIGATIONS

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 17, 2005

                               __________

                           Serial No. 109-47

                               __________

       Printed for the use of the Committee on Energy and Commerce


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house

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                    ------------------------------  
                    COMMITTEE ON ENERGY AND COMMERCE

                      JOE BARTON, Texas, Chairman

RALPH M. HALL, Texas                 JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida             Ranking Member
  Vice Chairman                      HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio                EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               SHERROD BROWN, Ohio
CHARLIE NORWOOD, Georgia             BART GORDON, Tennessee
BARBARA CUBIN, Wyoming               BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois               ANNA G. ESHOO, California
HEATHER WILSON, New Mexico           BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona             ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING,       ALBERT R. WYNN, Maryland
Mississippi, Vice Chairman           GENE GREEN, Texas
VITO FOSSELLA, New York              TED STRICKLAND, Ohio
ROY BLUNT, Missouri                  DIANA DeGETTE, Colorado
STEVE BUYER, Indiana                 LOIS CAPPS, California
GEORGE RADANOVICH, California        MIKE DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire       TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania        JIM DAVIS, Florida
MARY BONO, California                JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon                  HILDA L. SOLIS, California
LEE TERRY, Nebraska                  CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey            JAY INSLEE, Washington
MIKE ROGERS, Michigan                TAMMY BALDWIN, Wisconsin
C.L. ``BUTCH'' OTTER, Idaho          MIKE ROSS, Arkansas
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee

                      Bud Albright, Staff Director

        David Cavicke, Deputy Staff Director and General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

              Subcommittee on Oversight and Investigations

                    ED WHITFIELD, Kentucky, Chairman

CLIFF STEARNS, Florida               BART STUPAK, Michigan
CHARLES W. ``CHIP'' PICKERING,         Ranking Member
Mississippi                          DIANA DeGETTE, Colorado
CHARLES F. BASS, New Hampshire       JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon                  JAY INSLEE, Washington
MIKE FERGUSON, New Jersey            TAMMY BALDWIN, Wisconsin
MICHAEL C. BURGESS, Texas            HENRY A. WAXMAN, California
MARSHA BLACKBURN, Tennessee          JOHN D. DINGELL, Michigan,
JOE BARTON, Texas,                     (Ex Officio)
  (Ex Officio)

                                  (ii)
?



                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Captain, Jill F, Drug and Alcohol Testing Industry 
      Association................................................    30
    Catalano, Dennis, President, Puck Technology.................    77
    Cramer, Robert J., Office of Special Investigations, 
      Government Accountability Office...........................    10
    Dasgupta, Amitava, Professor, Department of Pathology and 
      Laboratory Medicine, University of Texas--Houston..........    57
    Fichera, Michael, Health Choice of New York, Inc.............    77
    Kenney, Josephine E., Senior Vice President of Compliance, 
      Employment Screening Services Division, First Advantage 
      Corporation................................................    59
    Moore, Hon. George, Commonwealth's Attorney, 21st Judicial 
      Circuit....................................................    27
    Reed, Hon. Susan D., District Attorney, Bexar County Justice 
      Center.....................................................    23
    Sample, Barry, Director of Science and Technology, Employee 
      Solutions Division, Quest Diagnostics, Inc.................    37
    Simms, Jeff, the Substance Abuse Program Administrators 
      Association................................................    33
    Stephens, Matt, President, Spectrum Labs.....................    77
    Stephenson, Robert L. II, Substance Abuse and Mental Health 
      Services Administration....................................    16

                                 (iii)

  


                  SUBVERSION OF DRUG TESTING PROGRAMS

                              ----------                              


                         TUESDAY, MAY 17, 2005

                  House of Representatives,
                  Committee on Energy and Commerce,
              Subcommittee on Oversight and Investigations,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:40 a.m., in 
room 2123, Rayburn House Office Building, Hon. Ed Whitfield 
(chairman) presiding.
    Members present: Representatives Whitfield, Bass, Walden, 
Ferguson, Burgess, Blackburn, Barton (ex officio), Stupak, and 
Inslee.
    Staff present: Mark Paoletta, chief counsel; Alan Slobodin, 
majority counsel; Clayton Matheson, research analyst; Chad 
Grant, clerk; and Chris Knauer, minority investigator.
    Mr. Whitfield. Today's hearing is entitled Subversion of 
Drug Testing Programs, and I certainly want to welcome the 
first panel of witnesses. We look forward to your testimony.
    Before we give our opening statements, we do have about a 
2- or 3-minute segment that was on a television station in 
Texas that sort of illustrates the subject matter of this 
hearing today. So--I'm sorry. It was Connecticut, not Texas and 
1998 and not today. Hopefully, our technology will work; and, 
with that, we will begin the video. If someone would dim the 
lights.
    [Video shown.]
    Mr. Whitfield. Well, I hope you enjoyed that brief news 
clip. We are going to have our opening statements now, and I'm 
going to submit my entire opening statement for the record.
    [The prepared statement of Hon. Ed Whitfield follows:]

  Prepared Statement of Hon. Ed Whitfield, Chairman, Subcommittee on 
                      Oversight and Investigations

    There's an old saying: ``What you don't know can't hurt you.'' 
Today's hearing on the subversion of drug testing programs will show 
that adage may not always be true. We will learn about a furtive world 
of masking agents and prosthetic devices that keeps us from knowing who 
in safety-sensitive jobs or in probation programs are using illegal 
drugs. This may be the case that what you don't know can hurt you--and 
not only hurt you, but actually put your life and others' lives at 
risk.
    We know that the problem of illegal drug use is enormous and 
persistent. The Substance Abuse and Mental Health Services 
Administration (SAMHSA) 2003 National Survey on Drug Use and Health 
tells us that 19.5 million Americans ages 12 and older reported using 
an illicit drug in the month before the survey was conducted. According 
to the same survey, if asked about illicit drug use during the year 
before the survey was conducted, 35 million Americans age 12 and older 
reported illicit drug use.
    We don't know the precise number of people subject to drug testing 
who are using drugs, but some of today's witnesses will present data on 
positive test results and other kinds of results that indicate a 
significant problem of people who continue to use drugs, even when they 
are subject to a drug-testing program.
    We know that over the past decade, a quickly expanding industry has 
evolved around products that help illicit drug users subvert drug 
tests. A myriad of companies currently sell dozens of products that are 
designed to mask the presence of illegal drugs in users' urine, hair, 
blood, and saliva. These products are ubiquitous and are sold primarily 
over the Internet, in ``head shops,'' and even in health food stores. 
Additionally, there are products that deliver substitute ``clean'' or 
drug-free urine warmed to body temperature. They have catchy names such 
as the ``Urinator'' and the ``Whizzinator.'' These products have even 
been in the news. Just last week, we learned about an NFL player caught 
with a Whizzinator. We will see print ads and Internet ads that 
blatantly advertise and guarantee that when used according to 
instructions, ``You Will Pass Your Drug Test or Double Your Money 
Back!'' The Committee has obtained some information on the finances and 
operations of a couple of companies, a sub-sample of this mysterious 
industry. What we have learned is that the bottom lines of these 
companies is consistent with a trend of an industry that is growing and 
making millions of dollars. However, we don't know the overall size of 
this industry. At today's hearing, we will have an opportunity to gain 
some insight from three witnesses in this industry who will appear 
before the Subcommittee.
    We know that drug-testing programs are being defrauded. 
Adulteration, substitution, and other forms of deception are used in 
attempts to falsify drug test results. We know that because some people 
have been caught trying to substitute urine specimens. We will hear 
from two prosecutors whose offices have prosecuted such cases. One of 
the prosecutors who will be testifying is George Moore, a 
Commonwealth's Attorney from my home state of Kentucky.
    We also know that some specimens are adulterated with chemicals to 
mask drug use. We will hear from SAMHSA, a major diagnostic testing 
company, and a scientific expert about lab results that substantiate 
the problem of adulteration.
    What we don't know is the total number of drug tests where there 
has been an attempt to falsify the result. However, the test result 
data show a combined rate of adulteration, dilution, and substitution 
that extrapolated to the total population subject to drug testing would 
mean tens of thousands of drug specimens susceptible to subversion.
    We know subversion of drug tests occurs. We don't know how many 
illicit drug users have successfully avoided detection. But we know 
some users have been successful. Today the Subcommittee will hear from 
one witness, who is in a correctional institution, who will testify 
about his experiences with using various products to avoid detection by 
workplace testing programs, even though this individual continued to 
use illicit drugs.
    However, we know many thousands, if not millions, of users of 
illicit drugs are escaping detection and putting the public at risk.
    We will learn from some of our witnesses that some of these masking 
products actually work, and some of these products don't work at all, 
even if instructions are followed. However, there are many anti-testing 
products that have not been tested by the government or independent 
laboratories. We have no idea whether some of these masking products 
pose a real problem or not.
    We know that the basic principle underlying the federal workplace 
drug testing program and other drug testing programs is that an illicit 
drug user in a safety-sensitive position such as driving a school bus 
or flying an airplane can put the public at risk. Illegal drug use in 
the workplace contributes to decreased productivity and increased 
absenteeism, accidental injuries and deaths, and violence. We will hear 
testimony and tape-recorded conversations presented by the Government 
Accountability Office (GAO) showing how easily an individual seeking a 
safety-sensitive, or a security position, in the federal government can 
obtain masking products. Other witnesses will also report about 
incidents that further illustrate the point about how public safety is 
placed at risk. We will also hear from witnesses about the added costs 
to do validity testing, which is enhanced urine specimen testing that 
picks up some of the falsification attempts.
    We know, and will learn from some of today's witnesses, about the 
laws in 14 states that in some form address the problem of drug testing 
subversion. What we don't know is whether the federal drug 
paraphernalia statute can be used effectively against the sale or 
marketing of anti-drug testing products.
    There is much we know about the problem of drug testing subversion. 
I hope today's hearing will advance our knowledge about the nature of 
these masking products and the industry that makes them, markets them, 
and sells them. But there is still much more we don't know.
    The question before the Subcommittee is this: Will we know enough 
to reach a conclusion about whether subversion of drug testing programs 
is a significant problem, and whether Congress must act?
    I want to thank all of today's witnesses for appearing at this 
hearing. I look forward to the testimony. I also want to thank Chairman 
Joe Barton for his request to the GAO last August that started this 
investigation, and his longstanding leadership on drug testing issues. 
I want to thank my predecessor, Jim Greenwood, for his work and 
interest on drug testing issues when he headed this Subcommittee. 
Finally, I want to express my appreciation to the Ranking Member of the 
Subcommittee, my good friend from Michigan Bart Stupak, for his support 
in the subpoena vote last week, and his commitment on the issue of 
curbing drug abuse. I look forward to working with him on this issue of 
drug testing subversion and other issues of mutual concern.

    Mr. Whitfield. But I would point out that that clip was run 
in 1998 on a TV station in Connecticut. At that time, Texas, I 
believe, was the only State with a law prohibiting the sale of 
those types of products in the marketplace. Today, there are 14 
States.
    One of the focuses of today's hearing from experts like you 
all--we have some government witnesses here today, we have some 
private witnesses here today, and we are going to have a 
witness on the screen from a correctional institution who was 
on parole and was found to be using a product known as the 
Whizzinator and was sent back to prison. We are going to have a 
very good hearing.
    I think the primary focus of our hearing today is going to 
be whether or not we do need a Federal approach to solving this 
problem. We have a Federal workforce drug testing program. We 
have mandatory drug testing for airline pilots, for railroad 
employees, for school bus drivers, nuclear workers. To protect 
the public health and welfare, it is essential that people in 
those positions not be under the influence of drugs; and these 
products that are being manufactured, marketed and sold for the 
purpose of helping people disguise the use of drugs I think 
quite clearly endanger the public. So we look forward to your 
testimony today.
    With that, I will recognize the gentleman from Michigan, 
Mr. Stupak.
    I would also like to thank the chairman of this committee 
who sent out the initial letters on this I believe last August, 
and I want to thank Mr. Stupak for his support in issuing the 
subpoenas that were necessary to obtain three witnesses from 
the companies that manufacture these products.
    With that, I recognize Mr. Stupak.
    Mr. Stupak. Thank you, Mr. Chairman.
    Today's hearing will examine a variety of devices and 
substances that purportedly enable the masking of various tests 
used to detect illegal drugs. The committee's present knowledge 
about these products and the companies that sell these products 
remain somewhat sparse because this is a largely unregulated, 
undocumented industry. Basic measures about what is sold, how 
much is being sold and who is using these products remain 
unclear. We hope to further our understanding of this important 
public health matter in today's hearing by the many excellent 
witnesses that will provide testimony.
    A number of people have asked and are asking, why are we 
having this hearing? While some of the products that will be 
discussed today have been the subject of late night comedians 
and sarcastic columnists, there are serious implications 
underlying these. Whereas some may chuckle about the NFL player 
that tried to defeat his drug test by using a product called 
the Whizzinator, the laughs quickly end when one considers that 
such a product could be used by persons operating nuclear power 
plants, driving thousand foot supertankers into ports or a bus 
driver bringing our children to school.
    The purveyors of these products that sell these products 
and who have been subpoenaed to appear here today should ponder 
on their flights home how they would feel if their pilot was 
allowed to operate the aircraft impaired because of the 
products they sell. I hope they think about that at about 
30,000 feet.
    Society does have legitimate reasons for drug tests. If 
some do not believe that certain kinds of jobs do not require 
such tests, fair enough. That's a debate we can have another 
time. The fact of the matter is that those making considerable 
sums of money by selling these products will try to hide behind 
the mantra that their products allow many Americans to 
safeguard their privacy from drug testing intrusion and that 
many are not even designed to thwart illegal drug use. The fact 
is, however, that these purveyors have no ability to control 
who uses their products nor for what purposes.
    While I find it amusing that many of these products will 
have a lawyer drafted disclaimer such as, quote, product not to 
be used with a lawfully administered drug test, end of quote, 
it is clear that such vendors have no clue how their products 
are being used or what problems they are causing to society. I 
really wonder if they sleep well at night knowing that the 
habitual drug offenders are able to routinely avoid confronting 
the horrors of addiction because they now have a method to 
avoid a judge's court order that they stay clean and enter a 
drug treatment program. I wonder if these purveyors even think 
about who and where in society these individuals are placing 
others at risk because their products are allowed to circumvent 
an important workplace safety control such as a substance abuse 
test.
    Mr. Chairman, we have had only minimal understanding of 
what harm these masking products may be causing. It is possible 
that such tests are being used by a relatively small segment of 
the population and that their use is having minimal impact on 
public health and safety. If that's the case, then perhaps they 
should continue to be the primary regulators of these products 
through State law.
    Nevertheless, these companies appear to be distributing 
their products through a complicated web of activities that 
cross numerous State jurisdictions; and, as most of the 
witnesses will argue today, Federal legislation is needed. I 
likely agree. Mr. Chairman, as you know, I have supported the 
committee's effort in this investigation and will continue to 
support additional efforts to find meaningful solutions, 
whether through regulation or new legislation.
    Nevertheless, as mentioned last week and with you in 
private conversations, I also look forward to continuing our 
investigation into another major health threat which is 
directly related to today's subject, rogue Internet pharmacies, 
particularly those selling the variety of drugs that some of 
these tests are trying to mask.
    This committee has investigated the issue of controlled 
substances and other dangerous drugs being sold on the Internet 
for years. This public health threat has only gotten worse. We 
still have not found an effective approach to shutting down the 
most dangerous Web sites, mainly those selling schedule II 
drugs without a prescription.
    To further make my point, I have a few slides that depict 
the volume of products that enter the U.S. daily through this 
method. These slides were taken last year and the year before 
that, and it's my understanding that such volume continues 
today.
    We have the slides right up here, Mr. Chairman. The first 
two slides are from Miami international airport and show 
Dizapam or valuium. This bin contains thousands of shipments. 
The first two are from Miami, and you can see that, when you 
open it, it says valuium. You don't know what is in those 
packets. That's one of them.
    The next slides are from JFK International Airport and show 
a range of schedule II drugs. For every packet that gets 
caught, I'm guessing about a dozen get through. We have been to 
Dulles, we have been to Los Angeles and JFK and Miami; and 
these are shipments and shipments that come in not properly 
addressed and not properly earmarked. We don't know what's in 
these drugs other than what they purport to be. That is 1 day's 
supply coming into our country, and there are 11 different 
stations around this country where these drugs come in at these 
receiving points.
    Mr. Chairman, I expect as we move forward with today's 
hearing that we will show the same level of vigor in going 
after those rogue sites that we see in these slides that I just 
showed you and go after the rogue sites. Such an effort may 
require the assistance or issuance of subpoenas not only for 
those that own and run illicit Internet sites but those who 
make illegal transactions possible. This would include 
consignment carriers that ship the drug, the Web hosts such as 
Google that allow the listing of such sites despite the fact 
they promised us 2 years ago they would put an end to it and, 
of course, the credit card companies that are making such 
transactions possible.
    We have seen evidence to suggest that controlled substances 
are continuing to flood into the United States via the 
Internet, and I will remind this committee we still do not have 
a handle to address this important issue nor have we passed any 
Federal legislation that will give regulators desperately 
needed tools such as injunctive relief.
    Our friend from Oregon, Mr. Walden, has mentioned to us 
last week that he has legislation to address this issue. Some 
of the provisions and ideas in his legislation mirror what I 
tried to do more than a decade ago when I wrote the first piece 
of legislation on this matter. While not perfect, the Walden 
legislation represents another outstanding opportunity to 
finally pass meaningful legislation in this area so we can 
better protect the Nation's public health. I welcome the 
opportunity to sit down with you, Mr. Chairman, and Mr. Walden 
to further study this bill.
    As you know, the staff of this committee has years of 
experience in this area. I hope this is the year that we can 
finally start making progress in solving this daunting task.
    I commend your efforts in this fight. Mr. Chairman, I do 
want to conclude by commending you and your staff in the way 
your side has conducted this investigation. While we had some 
disagreement over yesterday's oil-for-food hearing and the 
underlying investigation, today's efforts have been conducted 
with considerable professionalism. Your staff has made an 
outstanding effort to keep us informed and plugged into the 
process on all meetings, phone calls and related documents; and 
such efforts should not go unrecognized. I look forward to 
today's hearing and working with you to determine what 
additional legislation is needed for today's subject and the 
subject of rogue pharmacies selling dangerous controlled 
substances on the Internet.
    Before I yield back my time, I want to compliment our 
staff. Some of the information came in last night; and, once 
again, our staffs worked most of the night to be prepared for 
today's hearing. I look forward to working with you and to 
today's hearing. Thank you.
    Mr. Whitfield. Thank you, Mr. Stupak, and thanks for 
raising some very important issues that we look forward to 
working with you on.
    At this time, I recognize the gentleman from New Jersey, 
Mr. Ferguson, for his opening statement.
    Mr. Ferguson. Thank you, Mr. Chairman, for holding this 
hearing about an important topic that is becoming more and more 
of a problem as our Nation tries to battle illicit drug use in 
our workplaces.
    The presence of masking devices and other means of 
subverting drug tests have become really high-profile in recent 
years. Even as we look to the world of sports, we see egregious 
examples of test subversion, as the chairman and ranking member 
have both already pointed out, most recently by Minnesota 
Vikings running back Ontario Smith.
    Just this week, another subcommittee of this full 
committee, the Commerce, Trade, and Consumer Protection 
Subcommittee of our committee, will convene a hearing on 
tougher steroids testing, testing that can possibly be deceived 
by the very subversion methods which we will discuss today. But 
that isn't nearly as significant as the problem of drugs in our 
workplace and the need to have true and transparent testing and 
the means to have testing without fear of foul play. That's the 
subject of today's hearing, and I'm pleased we will be pursuing 
that further.
    I also want to welcome Dr. Barry Sample, who is the 
Director of Science and Technology for the employer solutions 
business unit of Quest Diagnostic. Quest is a major presence in 
my home State of New Jersey. Dr. Sample supervises the Atlanta 
laboratory, which is accredited by the International Olympic 
Committee and provided the doping control services for the 1996 
centennial Olympic games. I welcome Dr. Sample here today and 
the rest of our panel. I look forward to his suggestions and 
from hearing from our witnesses today on what we can do to 
battle this scourge of drug tests subversion.
    Thank you again, Mr. Chairman. I yield back.
    Mr. Whitfield. I recognize Mr. Inslee of Washington for his 
opening statement.
    Mr. Inslee. I just would like to say baseball home run 
production is down 10 percent this year, and that's just fine 
with me. Thank you.
    Mr. Whitfield. Thank you, Mr. Inslee.
    At this time, I recognize Dr. Burgess of Texas for his 
opening statement.
    Mr. Burgess. Thank you, Mr. Chairman.
    You know, I do have a statement that I will submit for the 
record.
    There's not much more I can say after Mr. Stupak's opening 
statement. I agree with everything he said except that I hope 
the purveyors of these tests will think about what they're 
doing not when the plane is at 31,000 feet but while its on 
short final in a rainstorm.
    I, too, want to take the opportunity to welcome the 
Honorable Susan Reed, District Attorney from my home State of 
Texas and San Antonio; and Dr. Dasgupta from Houston, Professor 
of Pathology and Laboratory Medicine at the University of 
Texas, Houston, my alma mater. Welcome to you both and look 
forward to your testimony today.
    Mr. Whitfield. Thank you, Dr. Burgess.
    At this time, I recognize Mr. Bass of New Hampshire.
    Mr. Bass. Thank you, Mr. Chairman. I will submit an opening 
statement for the record.
    I appreciate you holding this hearing. This is a very 
difficult issue that should have been addressed a long time 
ago. I can't think of an issue we should get out of this 
committee more quickly than to prohibit the sale and use of 
anti-drug testing pharmaceuticals. There is absolutely no 
public good that can be derived from this activity, and I think 
it's an unfortunate by-product of society that we have an 
element that wants to make money off of endangering the lives 
of Americans, subverting the process of professional sports and 
other areas where illicit drugs may or may not be used.
    So I thank you for having this hearing, and I look forward 
to hearing from our witnesses.
    Mr. Whitfield. At this time, I recognize Mrs. Blackburn 
from Tennessee.
    Mrs. Blackburn. Thank you, Mr. Chairman; and I want to say 
thank you to our committee for being here today.
    I know I join everyone else on this panel, Democrat and 
Republican on both sides of this, the majority and minority, 
saying we are quite concerned about this issue. All of us are 
concerned for our constituents, and we are concerned for our 
safety in the workplace, and we are concerned for the safety of 
our children. So we appreciate your taking the time be here.
    Illegal usage, illegal drug usage certainly is of concern. 
The fact that we, as a Federal Government, give over 200,000 
drug tests a year; 99 percent of those are found to be 
negative. The workplace, over 40 million drug tests a year.
    The cost of drug abuse within the system is $181 billion. 
That is what it is projected to cost our society. And, you 
know, the fact that we have individuals who would try to 
circumvent this process to make it easier for individuals to 
break the law, to harm society is of tremendous concern to us. 
So I thank you all for your willingness to be here today to 
visit with us today and to cover these issues.
    Mr. Chairman, I yield back.
    Mr. Whitfield. Thank you, Mrs. Blackburn.
    Without objection, I would like now to place the document 
binder for this hearing into the record. This is--you all have 
copies of this, Mr. Stupak. And so ordered.
    [Additional statement submitted for the record follows:]

 Prepared Statement of Hon. Joe Barton, Chairman, Committee on Energy 
                              and Commerce

    Mr. Chairman, I commend you for holding this very timely hearing on 
subversion of drug testing programs.
    For starters, let's call these products what they are: lying, 
cheating, and stealing.
    It's lying because you can use one of these products to test clean 
even if you use illegal drugs. As an ad in High Times magazine puts it: 
``Live Positive. Test Negative.''
    It's cheating because these masking products permit a drug user to 
get a job that he wouldn't otherwise get. And it could be the sort of 
job no sane person would want a drug user to have, like driving a 
school bus or flying an airplane.
    Finally, it's stealing because subversion of drug tests can divert 
resources from business activity when companies are forced to conduct 
additional testing to see if their drug tests are working.
    Now what kinds of products are we talking about? Mr. Chairman, 
consider this device that was in the news last week. A professional 
football player was stopped at an airport and found carrying something 
called the Original Whizzinator. This Whizzinator is a device used to 
subvert drug tests through an artificial bladder that stores and 
delivers substitute urine. If you don't get the idea, just go to its 
Website where the product is touted as ``Undetectable! Foolproof! Re-
usable!'' Here's their warranty: ``We use only the best synthetic urine 
on the market. Guaranteed to pass any lab analysis! Over 40,000 samples 
sold!'' If that isn't clear enough, some of the ads offer a cartoon 
construction worker. He's wearing a cannabis shirt and standing at a 
urinal. He winks as a man, in a lab coat checks him off the list and 
says, ``Next!''
    Incidentally, the company marketing the ``Live-Positive-Test-
Negative'' product tells the Committee there is nothing unlawful going 
on. This firm says it simply wants to help you remove any unwanted 
toxins from your body. The company says the product also can be used to 
euthanize pet fish, instead of flushing the fish down a toilet.
    Mr. Chairman, how much of this nonsense are we going to 
tolerate?What possible legitimate purpose is there for the Whizzinator 
other than to help drug users beat a drug test? This thing is pretty 
funny, but the damage caused by the Whizzinator and other products that 
hide drug use is no joke.
    It isn't very funny when the truck driver bearing down on you from 
behind is the guy who used a Whizzinator to falsify his test result. It 
is not a joke if an air traffic controller guiding your pilot is 
impaired from drug use that was masked by these products. It is not a 
joke if a homeland security worker is living positive and testing 
negative as he screens for terrorists.
    The bottom line is that something must be done to prevent these 
masking products from causing a disaster in the future.
    We are here today because subversion of drug testing programs is a 
dangerous reality, one that today's hearing may show must be addressed 
immediately, legislatively if necessary. The Congress cannot stop every 
American from smoking marijuana or taking heroin. If necessary, 
however, we should be able to act against an industry that makes it 
possible to do drugs and go undetected. We don't need people who use 
illegal drugs to fly airliners or drive our children to school.
    I thank the witnesses and look forward to the testimony.

    Mr. Whitfield. At this time, I want to welcome the first 
panel. We genuinely appreciate your willingness to be here 
today and to provide testimony that will give us some insight 
into the steps that we should be taking in the future in this 
Energy and Commerce Committee.
    We have a distinguished panel today. We have Mr. Robert 
Cramer, who is with the Office of Special Investigations at the 
Government Accountability Office.
    We have Mr. Robert Stephenson, who is with the Substance 
Abuse and Mental Health Services Administration.
    We have The Honorable Susan Reed, who is the District 
Attorney from Texas who was introduced.
    I'm very proud we have with us George Moore, who is a 
Commonwealth Attorney from my home State of Kentucky, although 
he was not in my district. He was instrumental in passing 
legislation in Kentucky to prohibit these products and welcome 
to you.
    In addition, we have Dr. Jill Captain, who is with the Drug 
and Alcohol Testing Industry Association.
    We have Mr. Jeff Simms with the Substance Abuse Program 
Administrators Association.
    We have Dr. Barry Sample, who is the Director of Science 
and Technology with the Employee Solutions Division of Quest 
Diagnostics, Inc.
    We have Dr. Amitava Dasgupta, who is a professor at the 
Department of Pathology and Laboratory Medicine at the 
University of Texas, Houston.
    And we have Mrs. Josephine Kenney, Senior Vice President of 
Compliance with the Employment Screening Services Division of 
First Advantage Corporation.
    So welcome all of you. We look forward to your testimony.
    You're aware that the committee is holding an investigative 
hearing; and, when doing so, we have had the practice of taking 
testimony under oath. Do you have any objection to testifying 
under oath?
    The Chair then advises you that under the Rules of the 
House and the rules of the committee you're also entitled to be 
advised by counsel. Do you desire to be advised by counsel 
during your testimony today? In that case, if you would rise 
and raise your right hand, and I'll swear you in.
    [Witnesses sworn.]
    Mr. Whitfield. You are now under oath. Your entire 
statement will be admitted into the record, and you may give a 
5-minute summary of your written statement.
    Mr. Cramer, we will recognize you to begin.

       TESTIMONY OF ROBERT J. CRAMER, OFFICE OF SPECIAL 
  INVESTIGATIONS, GOVERNMENT ACCOUNTABILITY OFFICE; ROBERT L. 
   STEPHENSON II, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES 
 ADMINISTRATION; HON. SUSAN D. REED, DISTRICT ATTORNEY, BEXAR 
   COUNTY JUSTICE CENTER; HON. GEORGE MOORE, COMMONWEALTH'S 
   ATTORNEY, 21ST JUDICIAL CIRCUIT; JILL F CAPTAIN, DRUG AND 
ALCOHOL TESTING INDUSTRY ASSOCIATION; JEFF SIMMS, THE SUBSTANCE 
    ABUSE PROGRAM ADMINISTRATORS ASSOCIATION; BARRY SAMPLE, 
    DIRECTOR OF SCIENCE AND TECHNOLOGY, EMPLOYEE SOLUTIONS 
DIVISION, QUEST DIAGNOSTICS, INC.; AMITAVA DASGUPTA, PROFESSOR, 
DEPARTMENT OF PATHOLOGY AND LABORATORY MEDICINE, UNIVERSITY OF 
TEXAS--HOUSTON; AND JOSEPHINE E. KENNEY, SENIOR VICE PRESIDENT 
 OF COMPLIANCE, EMPLOYMENT SCREENING SERVICES DIVISION, FIRST 
                     ADVANTAGE CORPORATION

    Mr. Cramer. I'm pleased to be here today to discuss the 
ease with which people can buy products that are designed to 
enable users of the illegal drugs to pass drug tests such as 
those administered in the Federal Workplace Drug Testing 
Program. I'll refer to these products today as masking 
products. Paul Desaulniers, who conducted this investigation, 
is with me today and will assist in our presentation.
    To determine how businesses market masking products, we 
conducted an Internet search using the words ``pass drug 
test.'' We quickly found many Web sites that offer a variety of 
drug masking products and brazenly tout that their products 
enable people who use illegal drugs to pass drug tests. For 
example, one Web site claimed that passing a urine drug test 
has never been easier, while another boasts it offers a variety 
of detox products that will beat the drug test or you get 200 
percent of your purchase price back. Yet another advises 
prospective customers that its product formulas change every 6 
to 9 months to stay ahead of new validity tests performed by 
drug testing laboratories that seek to determine whether there 
are masking products in urine specimens tested.
    Some Web sites provide an interactive format for 
perspective customers to find out which products best meet 
their individual needs. For example, one Web site provides a 
question and answer format for customers and then recommends 
certain products based on the responses.
    To further investigate how these vendors market their 
products, our investigator placed telephone calls to several of 
them that he identified through the Internet. He posed as a 
Federal employee who was looking for ways to hide his cocaine 
and marijuana use in an impending drug test, and he asked the 
sales representatives for each vendor for information on 
products that would enable him to pass his drug test.
    While each vendor offered a number of products, most of the 
sales representatives tailored the particular type of product 
that they recommended to information that they elicited from 
him about his purported drug use. They asked, for example, how 
often he used drugs, when he had most recently used them. They 
also asked about testing procedures, such as whether tests are 
conducted randomly or are announced in advanced and if 
individuals providing samples are closely monitored.
    In some conversations, our investigator described himself 
as a casual cocaine and marijuana user who undergoes announced 
drug tests. In those conversations, sales representatives 
recommended that he purchase products that are ingested orally 
prior to the test. For example, one of the vendors said, if you 
can stay clean for at least 2 days, we have a detox drink that 
you would drink on the day of the test. It will keep you clean 
for 5 hours. For $35, our investigator purchased the detox 
drink.
    After telling another vendor that he used cocaine during 
the past week and had a drug test scheduled the following week, 
the vendor said, the good news is we have a detox program. It's 
a 4-day program; and, basically, if you do that, you'll be okay 
for the test. For $79, our investigator purchased the detox 
program which came with a urine test kit that can be used at 
home to conduct a pretest before submitting to a workplace drug 
test.
    In other conversations, our investigator said that he used 
cocaine and marijuana on a daily basis and undergoes random 
drug testing. In that situation, vendors recommend that he 
purchase synthetic urine or adulterant products. Recommending a 
synthetic urine product, a representative told our 
investigator, you won't have to be as careful with our product, 
but you can still get away with it and people do get away with 
it. He purchased the product for $32.
    At the suggestion of two other sales representatives, our 
investigator placed orders for adulterants. For $29.95, he 
purchased one adulterant designed for people who use drugs 
daily and are subject to random drug testing. This product 
consisted of two small vials containing liquids that are added 
directly to the urine specimen before it is submitted for 
testing. He spent $32 for another adulterant that is designed 
to be used at the drug test location. This product is a bag 
that contains two chemicals. One chemical is supposed to 
destroy the drug toxins and the other purports to destroy 
traces of the first chemical so it won't be detected in the 
drug testing process.
    In sum, we found that products to defraud drug tests are 
easily obtained. They are brazenly marketed on Web sites by 
vendors who boast of periodically reformulating their products 
so they will not be detected in the drug testing process.
    In addition to an array of products designed to dilute, 
cleanse or substitute urine specimens, approximately 400 
different products are available to adulterated urine samples. 
The sheer number of these products and the ease with which they 
are marketed and sold through the Internet present formidable 
obstacles to the integrity of the drug testing process.
    Mr. Desaulniers will now play for you two brief excerpts of 
his conversations with two vendors of these masking products. 
In these conversations, Mr. Desaulniers posed as a Federal 
employee who uses marijuana and cocaine, was facing a drug test 
and was looking for products that would permit him to pass it.
    [Audio tape played.]
    Mr. Cramer. That completes our presentation, and we would 
be happy to take questions at the appropriate time.
    [The prepared statement of Robert J. Cramer follows:]

       Prepared Statement of Robert J. Cramer, Office of Special 
            Investigations, Government Accountability Office

    Mr. Chairman and Members of the Committee: I am pleased to appear 
before you today to discuss the ease with which the public can obtain 
products that are marketed, designed, and sold to defraud urine drug 
use screening tests such as those administered in the Federal Workplace 
Drug Testing Program.1 For purposes of my testimony, I will 
refer to these products as masking products and will discuss ways in 
which some businesses peddle them on the Internet. Masking products 
fall into one of four categories: (1) dilution substances that are 
added to a urine specimen at the time it is collected or are ingested 
before an individual submits a urine specimen; (2) cleansing substances 
that detoxify or cleanse the urine and are ingested prior to the time 
that an individual submits a urine specimen; (3) adulterants that are 
used to destroy or alter the chemical make-up of drugs and are added to 
a urine specimen at the time that it is provided for testing; and (4) 
synthetic or drug-free urine that is substituted in place of an 
individual's specimen and provided for testing. My testimony today 
summarizes our findings.
---------------------------------------------------------------------------
    \1\ Drug tests can be performed on urine, saliva, perspiration, 
hair, and blood. Currently, the federal government relies solely on 
urine drug tests, which have a high degree of accuracy, low costs, and 
relatively unobtrusive method of collection.
---------------------------------------------------------------------------
    We began our work by searching the Internet to obtain an overview 
of the array of products available to mask drug use and located several 
Web sites that tout products that are used to mask the presence of 
illegal drugs when a urine drug test is administered. Then one of our 
agents, posing as a federal employee in a sensitive position who uses 
marijuana and cocaine and was looking for products that would allow him 
to pass an impending drug test, placed telephone calls to businesses we 
identified in our Internet search and purchased drug masking products 
from them. Through our Internet search, we also identified and visited 
a retail store in the Washington, D.C. metropolitan area that sells 
these products. Additionally, we interviewed officials at the Substance 
Abuse and Mental Health Services Administration, Department of Health 
and Human Services, (HHS) to obtain information on the operation of the 
Federal Drug Testing Program and the types of products or methods that 
are used by individuals to deceive drug tests. Finally, we obtained 
information from the Department of Justice (DOJ), and the Drug 
Enforcement Agency (DEA) and about federal laws relating to the sale of 
masking products and researched state laws on this issue. We conducted 
our investigation from August 2004 through March 2005 in accordance 
with quality standards for investigations set forth by the President's 
Council on Integrity and Efficiency. We are referring the results of 
our investigation to appropriate law enforcement authorities and thus 
are not naming the sources from which our purchases were made.
    In summary, we found that products to defraud drug tests are easily 
obtained. They are brazenly marketed on Web sites by vendors who boast 
of periodically reformulating their products so that they will not be 
detected in the drug test process. In addition to an array of products 
designed to dilute, cleanse, or substitute urine specimens submitted to 
testers by drug users, approximately 400 different products are 
available to adulterate urine samples. The sheer number of these 
products, and the ease with which they are marketed and distributed 
through the Internet, present formidable obstacles to the integrity of 
the drug testing process.
    The sales representatives of the businesses we contacted assured 
our investigator that the products they sold would enable him to pass 
an impending drug test despite his purported use of marijuana and 
cocaine. While all of the businesses offered products designed to 
defraud drug tests, the sales representatives recommended different 
types of masking products based on how frequently our investigator 
purportedly used drugs, whether he was subjected to drug tests that are 
announced or conducted randomly, and whether testing administrators 
closely monitored the collection of urine specimens. When our 
investigator said that he occasionally used marijuana and cocaine, the 
representatives recommended he purchase herbal supplements and minerals 
to be taken orally prior to the drug test. According to the sales 
representatives, these products act as cleansers or detoxifiers. When 
our investigator reported that he used marijuana and cocaine on a daily 
basis and that he was subjected to random drug tests, they recommended 
that, if he would not be closely monitored when he provided a specimen, 
he purchase synthetic urine or adulterants that are added to a urine 
specimen. The prices of the products that the sales representatives 
recommended ranged from about $30 to $79.
    Currently, there are a variety of laws related to the sale of drug 
masking products. Under federal law, if such products are determined to 
be ``drug paraphernalia,'' an individual may be prosecuted for selling 
them pursuant to 21 U.S.C.  863.2 However, we have not 
found any reported federal cases in which individuals have been 
prosecuted for such sales. In contrast, some states specifically 
prohibit the manufacture, marketing, or distribution of drug masking 
products. For example, New Jersey, Florida, and Kentucky broadly outlaw 
the sale of any product designed to defraud or falsify a drug screening 
test.3 In some states, such as Louisiana and Texas, it is 
illegal for an individual to knowingly or intentionally deliver or 
manufacture substances designed to falsify or alter drug test 
results.4 Additionally, at least nine other states 
(Arkansas, Illinois, Maryland, Nebraska, North Carolina, Oklahoma, 
Pennsylvania, South Carolina and Virginia) 5 have outlawed 
the sale of urine or adulterants for the purpose of passing drug tests. 
Of the nine states, only one--South Carolina--has prosecuted at least 
two individuals for marketing and selling masking products: one who 
sold urine substitution kits over the Internet 6 and another 
who advertised that his store carried products that are used to pass 
drug tests by cleansing the system.7 Also, of the nine 
states, Illinois and Kentucky have made the offense punishable as a 
felony; South Carolina and North Carolina have made a second offense 
punishable as a felony; it is a misdemeanor offense in the remaining 
states.
---------------------------------------------------------------------------
    \2\ Drug paraphernalia is defined, among other things, as any 
equipment, product or material . . . primarily intended or designed for 
use in . . . concealing . . . a controlled substance. 21 U.S.C.  863.
    \3\ N.J. Stat. Ann.  2 C:36-10 (West 2004); Fla. Stat. Ann.  
817.565 (West 2000); and Ky. Rev. Stat. Ann.  516.108 (Michie 1999 & 
Supp. 2004).
    \4\ La. Rev. Stat. Ann.  14:133.3 (West 2004) and Tex. Health and 
Safety Code Ann.  481.133 (Vernon 2003).
    \5\ Ark. Code Ann.  5-60-201 (Michie 2003);; 720 Ill. Comp. Stat. 
 5/17-28 (WESTLAW through 2004 legislation); Md. Code Ann., Crim. Law 
 10-111 (2003); Neb. Rev. Stat.  48-1908 (2002); N.C. Gen. Stat.  
14-401.20 (2003); Okla. Stat. Ann. Tit. 63,  7002 (2005); 18 Pa. Cons. 
Stat. Ann.  7509 (West 2000); S.C. Code Ann.  16-13-470 (Law. Co-op. 
2003); and Va. Code Ann.  18.2-251.4 (Michie 2004).
    \6\ State v. Curtis, 591 S.E.2d 600.
    \7\ State v. Rothchild, 569 S.E.2d 346.
---------------------------------------------------------------------------
                               Background

    Pursuant to Executive Order 12564, dated September 15, 1986, the 
federal government established the Federal Workplace Drug Testing 
Program. It is administered by the Substance Abuse and Mental Health 
Services Administration (SAMHSA) for the purpose of preventing and 
deterring the use of illicit drugs in the federal workplace, and to 
ensure that as the federal government maintains employee productivity. 
In 2004, SAMHSA revised the Mandatory Guidelines for Federal Workplace 
Drug Testing Programs to require that specimen validity tests be 
conducted on all urine specimens collected.8 Noting that 
there has been a recent increase in the number of chemical adulterants 
that are marketed on the Internet and in certain magazines, SAMSHA 
officials stated that validity tests are intended to produce accurate, 
reliable, and correctly interpreted test results and to decrease or 
eliminate opportunities to defeat drug tests. According to SAMHSA, 
approximately 400 different products are available to adulterate urine 
samples, and companies that market masking substances periodically 
offer new formulations of their products to avoid detection.
---------------------------------------------------------------------------
    \8\ Initial validity screening of a urine specimen includes tests 
for color, odor, creatinine level, specific gravity, and pH level. When 
these test results do not fall within an acceptable range, more 
comprehensive testing is undertaken to assess the general validity of 
the specimen and confirm the presence of adulterants such as oxidants, 
nitrites, glutaraldehyde, chromate, and surfactant.
---------------------------------------------------------------------------
Internet Businesses Tout Success of Masking Products
    To determine how businesses market drug masking products on the 
Internet, our investigator conducted an Internet search using the words 
``pass drug test.'' He quickly found many Web sites that brazenly tout 
products and related information that enable users of illegal drugs to 
pass drug tests. For example, one Web site claimed that ``passing a 
urine drug test has never been easier,'' while another boasts that it 
offers a ``variety of detox products [that] will beat the drug test or 
you'll get 200% of your purchase price back.'' Yet another site advises 
prospective customers that its product formulas change approximately 
every 6 to 9 months to stay ahead of new validity tests performed by 
drug testing laboratories. These Web sites offer a full array of drug 
masking products.
    Additionally, our investigator found some Web sites that provide an 
interactive format for prospective customers to find out which products 
best meet their individual needs. For example, one Web site provides a 
question and answer format for prospective customers and then 
recommends certain products based on the responses. Among these 
questions were:

 How many times per week do you smoke or take other substances?
 Are you watched when providing the sample?
 Will you have at least an hour to prepare?
 Are you taking a Department of Transportation regulated test?
    After a purchaser clicks on the most appropriate responses to these 
questions, the site presents pictures and descriptions of recommended 
products that are available for purchase. This Web site offers a ``one-
price-fits-all'' approach and charges $32 for each of its products. It 
also provides a store locator that helps prospective customers find out 
whether retail stores in their local area carry these products.
    To further investigate how these businesses market drug masking 
products, our investigator placed telephone calls to some of them. 
Posing as a federal employee looking for ways to hide his purported 
cocaine and marijuana use in an impending drug test, our agent asked 
the sales representatives for each of these vendors for information on 
products that would enable him to pass a drug test. While each vendor 
offered a number of products, most of the sales representatives 
tailored the particular type of masking product they recommended to 
information they elicited from the investigator about his purported 
drug use. They asked, for example, how often he used drugs, and when he 
had most recently used them. They also asked about testing procedures, 
such as whether tests are conducted randomly or are announced in 
advance, and whether individuals providing urine samples are closely 
monitored.
    When our agent described himself as a casual cocaine and marijuana 
user who undergoes announced drug tests, sales representatives 
recommended that he purchase cleansing products that are ingested 
orally prior to the test. According to the vendors, these substances 
detoxify or cleanse the urine if taken before a test is conducted. For 
example, one of the sales representatives said to our investigator, 
``if you can stay clean for at least two days, we have a detox drink 
that you would drink on the day of the test. It will keep you clean for 
five hours.'' For $35,9 our investigator purchased the 
``detox drink.'' After telling another sales representative that he had 
used cocaine during the past week and had a drug test scheduled the 
following week, the representative told him ``. . . the good news is we 
have a detox program . . . It's a four day program, and basically if 
you do that, you'll be OK for the test.'' For $79, our investigator 
purchased the ``detox program,'' which came with a urine test kit that 
a buyer can use at home to conduct a pre-test before submitting a 
specimen for a drug test.
---------------------------------------------------------------------------
    \9\ For purposes of our testimony, we are providing the actual 
price of the product, which does not include shipping and handling 
costs.
---------------------------------------------------------------------------
    When our investigator told the sales representatives that he uses 
cocaine and marijuana on a daily basis and undergoes random drug 
testing, they recommended that he purchase either synthetic urine or 
adulterant products. Recommending a synthetic urine product, a 
representative told our investigator, ``you won't have to be as careful 
with our product. But you can still get away with it and people do get 
away with it.'' Our investigator purchased the product for $32. Another 
representative told our investigator that his company sells synthetic 
urine and that it is ``better suited for random situations because the 
urine is premixed in the bag, sealed off, and irradiated so that it 
won't go bad.'' Our investigator paid $49.95 for this product.
    At the suggestion of two other sales representatives, our 
investigator placed orders for two adulterants. For $29.95, he 
purchased one adulterant that is designed for people who use drugs 
daily and are subject to random drug testing. This product consists of 
two small vials containing liquids that are added directly to the urine 
specimen before it is submitted for drug testing. Additionally, he 
spent $32 for another adulterant that is designed to be used at the 
drug test location. This product is a bag that contains two chemicals: 
one chemical is supposed to destroy the drug toxins and another 
purports to destroy traces of the first chemical. According to the 
product instructions, a urine specimen should be poured into the bag, 
mixed with the chemicals, and then poured into the specimen cup.
    Using the store locator function on one of the Web sites, we 
identified a store in the Washington, D.C. area that sells drug masking 
products. Posing as someone needing information on products that would 
ensure passing an impending drug test, we visited the store and 
observed a variety of masking products displayed for sale. The owner of 
the store told us that he has sold masking products for the past 11 
years, and that on some days he sells up to 4 detox products. 
Additionally, he told us that he has repeat customers. For one of his 
customers, he special orders certain products. While the store also 
carries synthetic urine, the owner advised us that the detox drinks are 
more popular and sell better.

Laws Regarding the Sale of Drug Masking Products Vary
    Under federal law, it may be illegal to sell drug masking products 
if the products are determined to be ``drug paraphernalia.'' 
Specifically, under federal law, it is unlawful for any person to sell 
drug paraphernalia, which is defined as any equipment, product, or 
material . . . primarily intended or designed for use in . . . 
concealing . . . a controlled substance.10 The following 
factors may be taken into consideration in determining whether an item 
constitutes drug paraphernalia, including the instructions provided 
with the item concerning its use; descriptive materials accompanying 
the item which explain or depict its use; national or local advertising 
concerning its use; the manner in which the item is displayed for sale; 
and the existence and scope of legitimate uses of the 
item.11 However, officials from DOJ and DEA advised us that 
there have not been any federal cases in which an individual has been 
prosecuted for selling drug masking products under this statute and our 
independent research of federal case law databases did not find any.
---------------------------------------------------------------------------
    \10\ 21 U.S.C.  863.
    \11\ 21 U.S.C.  863(e).
---------------------------------------------------------------------------
    In contrast, some states have statutes that specifically prohibit 
the manufacture or distribution of drug masking products. For example, 
a New Jersey statute specifically prohibits individuals from 
manufacturing, selling, or giving ``. . . any instrument, tool, device, 
or substance adapted, designed or commonly used to defraud the 
administration of a drug test.'' 12 Under the New Jersey 
statute, a person may be prosecuted if he or she submits a substance 
that purports to be from a person other than its actual source or 
otherwise engages in conduct intended to produce a false or misleading 
outcome of a drug test.13 Similarly, in Florida and 
Kentucky, it is illegal to manufacture, market, or distribute products 
intended to defraud any lawfully administered urine test designed to 
detect the presence of controlled substances.14 In some 
states, such as Louisiana and Texas, it is illegal for an individual to 
knowingly or intentionally deliver or manufacture substances designed 
to falsify or alter drug test results. 15
---------------------------------------------------------------------------
    \12\ N.J. Stat. Ann  2 C:36-10(b).
    \13\ N.J. Stat. Ann  2 C:36-10 (a).
    \14\ Fla. Stat. Ann.  817.565 and Ky. Rev. Stat. Ann.  516.108.
    \15\ La. Rev. Stat. Ann.  14:133.3 and Tex. Health and Safety Code 
Ann.  481.133.
---------------------------------------------------------------------------
    In some other states, laws relating to drug masking practices are 
narrower. For example, in Nebraska it is illegal to provide bodily 
fluids for the purpose of altering the results of tests to determine 
the presence of drugs. In some states, such as Pennsylvania and 
Virginia, it is illegal to sell drug-free urine, but there is no 
specific prohibition on the sale of adulterants. In contrast, in some 
states such as South Carolina, Arkansas, North Carolina, Oklahoma, 
Illinois, and Maryland, it is illegal to sell urine or adulterants. 
However, of these states, only Illinois and Oklahoma prohibit the sale 
of synthetic urine.
    In our research of reported cases we found two cases in South 
Carolina in which individuals have been prosecuted for the sale of 
masking products. In one case that was decided in August 2002, the 
South Carolina Supreme Court upheld a conviction for violation of a 
statute that prohibits the possession of adulterants intended to 
defraud a drug test. In that case, the vendor placed an advertisement 
in a magazine for a novelty store he owned which read: ``Taking a drug 
test? Want to cleanse your system? We carry Readi-Clean, Carbo-Clean 
Plus, Quick Tabs, One Hour, Zydot, One Hour Klear, Body Flush.'' An 
undercover agent purchased an adulterant Zydot after the store clerk 
assured him that the product would allow him to pass a drug test for 
marijuana. In upholding the conviction, the Court relied on, among 
other things, the advertisement the defendant placed rather than a 
determination whether the product effectively masks drug 
use.16 Additionally, the South Carolina Supreme Court upheld 
the conviction of another vendor who sold urine substitution kits on 
the Internet.17 Included on the defendant's Web site were 
claims that, ``Our Complete Urine Test Substitution Kits allow anyone, 
regardless of substance intake, to pass any urinalysis within 
minutes.''
---------------------------------------------------------------------------
    \16\ State v. Rothchild, 569 S.E.2d 346.
    \17\ State v. Curtis, 591 S.E.2d 600.
---------------------------------------------------------------------------
    Mr. Chairman, this concludes my statement. We will then answer any 
questions that you or other members of the Committee may have.
Contacts
    For further information regarding this testimony, please contact 
Robert J. Cramer at (202) 512-7445 or Paul Desaulniers at (202) 512-
7435.

    Mr. Whitfield. Thank you very much.
    Mr. Stephenson, going to be giving a 5-minute opening? Or 
is that his part?
    You are recognized for 5 minutes, Mr. Stephenson.

              TESTIMONY OF ROBERT L. STEPHENSON II

    Mr. Stephenson. Good morning, Mr. Chairman and members of 
the committee. My name is Robert Stephenson. I'm the Director 
of the Division Workplace Programs at the Center For Substance 
Abuse Prevention. On behalf of my administrator, Mr. Charles 
Curie, Substance Abuse and Mental Health Services 
Administration, we thank you for convening this hearing and for 
inviting us to provide testimony.
    We have prepared written testimony, which we have 
submitted; and we also have this presentation as a power point 
presentation. We would like to give you a copy of that for the 
record.
    In talking about these issues, our Federal program history, 
experience and concern will certainly help define the nature of 
the problem we're talking about today. Our full statement 
certainly provides documentation of our efforts and our 
findings. However, the Federal program's limited authority and 
scope will require input from others to accurately define the 
true size of the national problem.
    This program for Federal agency workplace drug testing 
started and was established by executive order in 1986 and 
mandated by Public Law in 1987 and today covers 1.8 million 
nonmilitary Federal employees and job applicants in 120 Federal 
agencies. Four hundred of these are in testing-designated 
positions, which basically covers the national security and 
public safety jobs.
    There are 210,000 forensic workplace urine tests done under 
this program for Federal employees per year. But that isn't the 
end of the story, because our standards and laboratory 
certification processes are used by others and under their own 
separate authorities. Almost 6.8 million Federal and federally 
regulated specimens were tested in the HHS-certified labs from 
May 2004, to April 2005.
    It's important to note we believe this is only 15 to 25 
percent of the total number of drug tests that are performed in 
a number of different applications beyond our program authority 
or oversight.
    Of the specimens that we tested in our labs, about 140,000, 
2.1 percent, tested positive for drugs. About 10,000 of 
them,.15 percent, were found to be adulterated, substituted or 
invalid. Unfortunately, there were an unknown number of 
successfully adulterated substituted specimens that went 
through our system.
    Evidence has shown that even Federal employees in the 
national security and public safety testing designated 
positions do try to beat their drug tests. In fiscal year 2003, 
there were 13 adulterated, 15 substituted and 14 invalid 
specimens identified and reported. Every one of those 
adulterated, substituted and invalid tests represents a 
potential threat to national security and/or public safety.
    For example, in September 2003, our agency was contacted by 
the Perry nuclear power plant east of Cleveland, Ohio. 
Management discovered evidence in a trash can that job 
applicants had attempted to use Minuteman, which is a synthetic 
urine substitute, to beat the required workplace drug test. 
Specimens from that entire day's applicants were recollected 
and tested and nine tested positive for marijuana use.
    Just last week, there was another story that hit the press. 
USA Today had a story about a Minnesota Vikings professional 
football player caught with a test and some cleansing products 
to beat a drug test. It was in his carry-on bag at the airport.
    Marketing continues to try to beat the drug test. When you 
look at what we did back in 2002 with the Google search, we got 
158,000 hits. When we repeated that test earlier this month, we 
got 1.2 million hits. When we slightly changed the wording this 
month to pass a drug test, we got 3.5 million hits.
    As of May 2005, programs identified over 400 products that 
are marketed to beat a drug test. We have prepared that and 
submitted it for the record. These products are available in 
magazines, head shops, dietary supplement retailers and Web 
sites.
    Our program monitors currently over 50 Web sites on an 
ongoing basis. The products are different types that you find 
here. These internal productions are dilution or cleansing 
products. External products, the adulterated additives that are 
put into the urine specimen after it leaves the body or a 
substitute specimen, which is a product that you use instead of 
the specimen from the donor.
    This is one of those cleansing products.
    Here are a number of examples of other kinds of formulas, 
pills, drinks and so forth.
    Here is one of the products out there. It shows the 200 
percent money back guarantee. Look at the size of the quarter 
and the size of the two vials. They are very small and will 
permit being hidden on the body successfully to be used in a 
private area when you are providing the urine specimen.
    This is an example of the product of the synthetic urine 
used that was used at the Perry nuclear power plant. The 
containers are very small compared to the quarter.
    Big thing here about adulterant effectiveness is--and we 
have done our own test, too, just like the TV example we saw. 
We have done that in our program area, too. Some products are 
effective, but they are also detectable. There are other 
products that are effective but not yet detectable or they 
disappear on their own after they have had an effect on a 
specimen. Some products are not effective but are still 
marketed and sold as being able to beat a drug test.
    This is an example of changing formulations of one 
particular product. In 2001, the blue bar shows it was about 40 
percent effective for marijuana metabolites and effective 
across the board for the other drug classes that we test for in 
the Federal program. But 1 year later, the program was able to 
check a formulation where it had gone up over 60 percent 
effective. Three months later after that, it had gone to 90 
percent effective in masking marijuana metabolites; and it was 
very difficult to detect.
    Here is an example of one of the products that isn't 
effective. These are the ones we would like to see people buy. 
But, unfortunately, these are the ones being offered for sale 
to the gullible person but have no effect.
    This whole issue has been kind of a moving target for us. 
Validity testing in the Federal program has been time limited 
because, as new adulterants are introduced, at first some of 
them work. When they are detected by us and identified and a 
countermeasure established in a testing protocol, the products 
change.
    It isn't limited just to urine. This is a product that's 
offered for hair.
    Here's another one for hair that offers to get to the root 
of the problem.
    When we look at oral fluid testing, you have a spit and 
clean capsule and a mouthwash and a quick fizz mouthwash.
    So in closing, again, I want to thank you for holding the 
hearing. We pledge our help in finding the answers that you 
seek. Our concern is that we are in a never-ending cat-and-
mouse chase with those who wish to beat the drug test. To us 
and our Federal agencies, every one of the adulterated, 
substituted and invalid tests we see out there represents a 
potential threat to public safety and national security.
    That concludes my oral remarks.
    [The prepared statement of Robert L. Stephenson II 
follows:]

 Prepared Statement of Robert L. Stephenson II, Director, Division of 
 Workplace Programs, Center for Substance Abuse Prevention, Substance 
  Abuse and Mental Health Services Administration, U.S. Department of 
                       Health and Human Services

    Mr. Chairman, and Members of the Subcommittee, I am Robert L. 
Stephenson, the Director of the Division of Workplace Programs at the 
Center for Substance Abuse Prevention in the Substance Abuse and Mental 
Health Services Administration (SAMHSA) of the U.S. Department of 
Health and Human Services (HHS). On behalf of Charles Curie, SAMHSA 
Administrator, we thank you for holding this important hearing. We 
welcome this opportunity to provide testimony about our experience with 
and knowledge about products that claim to prevent detection of certain 
substances by drug testing programs.
the drug testing responsibilities of the division of workplace programs
    The Federal Agency Drug-Free Workplace Program was established by 
Executive Order 12564 in 1986, and mandated by Public Law 100-71 in 
1987. Together they assigned major responsibilities for the 
establishment and operation of the Federal Drug-Free Workplace Program 
to HHS.
    Most of the responsibilities for day-to-day operation and oversight 
were delegated to what is now the Division of Workplace Programs. 
SAMHSA is responsible for certifying laboratories that perform accurate 
reliable forensic drug testing in accordance with the Mandatory 
Guidelines for Federal Workplace Drug Testing Programs.
    These Mandatory Guidelines were first published as a Final Notice 
in the Federal Register on April 11, 1988, and the first 10 
laboratories were certified to perform drug testing in December 1988. 
These Guidelines provide critical support for the overarching Federal 
Drug-Free Workplace Program that today covers 1.8 million non-military 
Executive Branch federal employees in 120 Federal agencies.The 
Guidelines include requirements for the chemical analysis of urine 
specimens from selected Executive Branch job applicants and employees 
to determine whether that specimen contained the parent drug or 
specific metabolic byproducts from marijuana, cocaine, opiates (with 
the focus on heroin), amphetamines, and phencyclidine.
    Even in 1988, based on information from other drug testing programs 
already in existence, it was known that some non-federal employee 
specimen donors used household products and chemicals to try to beat 
the drug test and mask the presence of illicit drugs in their urine.A 
few examples of commonly used household products used at that time were 
drain cleaners (sodium hydroxide), vinegar from the kitchen (dilute 
acetic acid), and soothing eye drops (a dilute salt solution). Since 
the late 1980's, many more sophisticated products have been developed 
and marketed by those in business to sell products to illicit drug 
users to beat their drug test.The increased use of the Internet in the 
mid-1990's brought an explosion of new products to the marketplace, 
openly sold for the sole purpose of defeating a drug test.

     THE SCOPE OF THE FEDERAL AGENCY WORKPLACE DRUG TESTING PROGRAM

    Within the Executive Branch, currently about 400,000 of the 1.8 
million non-uniformed services employees are in Testing Designated 
Positions, based on their agency or department mission and approved 
drug testing plan. Since the events of September 11, 2001, increased 
national security concerns have increased federal agency workplace drug 
testing from 100,000 to over 210,000 tests per year. The vast majority, 
well over 99 percent, of those tested are negative on their drug tests. 
In Fiscal Year 2003, in total only 13 Federal agency employee specimens 
were reported as adulterated; 15 were reported as substituted; and 14 
were reported as invalid (i.e., containing an unidentified adulterant, 
containing an unidentified interfering substance, having an abnormal 
physical characteristic, or having an endogenous substance at an 
abnormal concentration that prevents the laboratory from completing 
testing or obtaining a valid drug test result). Although these numbers 
are a very small percentage of the total tested, every one of those 
adulterated, substituted, and invalid tests represents a potential 
threat to national security and/or public safety. Further, the 
existence of any use of adulterants requires us to test the remaining 
99 percent, at great added cost in time and resources. Perhaps most 
important is the fact that there are individuals subject to federal 
workplace drug testing who are not being deterred from beginning or 
continuing to use illicit substances. These individuals and numerous 
young adults soon to enter our national workforce may turn to 
adulterants, masking agents, and substitution products in the mistaken 
belief that they can beat any drug test that they may be required to 
take.
    Under separate authorities, other Federal Government programs 
require workplace drug testing using the Mandatory Guideline-certified 
laboratories for their covered populations, including industries 
regulated by the Department of Transportation and the Nuclear 
Regulatory Commission. There are over 11 million employees and job 
applicants covered by these federally mandated workplace drug tests.
    Many of the same drug testing products and testing procedures are 
also used for criminal justice testing, school-based student testing, 
testing in the Uniformed Services, the U.S. Postal Service, and non-
federal public and private sector employers, with some portion 
voluntarily tested under our Mandatory Guidelines. It is estimated that 
between 20 to 40 million drug tests are performed each year, with the 
accuracy of many of these test results particularly vulnerable to 
undetected adulterant use by those being tested.

                      ADULTERANTS--THE MARKETPLACE

    SAMHSA's experience with and knowledge about products marketed to 
``beat the drug test'' came through its national leadership role of 
setting standards for urine drug testing and certifying laboratories to 
perform accurate and reliable drug testing.Drug testing has become a 
necessity for job applicants and workers in jobs that directly impact 
public safety and positions requiring security clearances.This 
widespread application of drug testing has created quite a market for 
products to beat a drug test, so that illicit drug users can continue 
their drug use AND be hired into, and stay employed in, jobs where drug 
testing is a requirement. SAMHSA's National Survey on Drug Use and 
Health clearly shows that 74.3% of current illicit drug users aged 18 
years old or older are employed (2003 NSDUH, published in 2004).
    These products are primarily focused on beating the drug test for 
marijuana, since marijuana is America's favorite illicit drug. We know 
this information by looking at the percentage of U.S. workforce 
specimens that test positive for marijuana. Using information provided 
publicly by one very large laboratory drug testing system, of all the 
specimens that test positive in the general U.S. workforce, 55% test 
positive for marijuana. Cocaine positive drug tests make up 15% of the 
total and opiates (focused on heroin) follow with 6% of the total 
(Quest Diagnostics Drug Testing index, 2004). Millions of employed 
persons in Federal service and employees of federally regulated private 
sector companies are drug tested, and their urine specimens must be 
tested in laboratories certified by SAMHSA.

                   MONITORING OF ADULTERANT PRODUCTS

    Since January 2002, SAMHSA has identified more than 400 products 
marketed to beat a urine, saliva, hair or blood drug test. These 
products are advertised in print media, available in ``head shops', 
though dietary supplement retailers, and through the Internet. A copy 
of our compiled list is being submitted as part of our written 
testimony.
    In September 2002, an online Google search of ``beat a drug test'' 
revealed 158,000 hits in 0.4 seconds. In May 2005, that same search 
revealed 1,210,000 hits in 0.21 seconds; a Google search of ``pass a 
drug test'' revealed 3,570,000 hits in 0.06 seconds.
    We developed and now maintain a spreadsheet of available products 
by website, in order to track the availability and evolution of these 
products over time.

             INTERNET PRODUCT ADVERTISING AND AVAILABILITY

    Internet advertising and access to information on these products 
primarily focuses on those job applicants and workers who use 
marijuana. In fact, some internet sites have an interactive 
questionnaire, and ask the inquirer several questions: 1) what type of 
drug test?-- Urine, Blood/Sweat/Saliva, Hair, or Don't Know, 2) Will 
you know the exact date and approximate time of the test, 3) then guide 
the inquirer through more questions to gather enough information to be 
able to recommend products to use to beat the particular type of drug 
test (e.g., how much of which product to add to the urine specimen, or 
how to wash the hair with specialized shampoos) and to be successful in 
beating the drug test.
    Concerning marijuana use, the questionnaires ask just how much 
marijuana he or she uses and how frequent that use is to better advise 
them on which product to use and how much of that product to use. 
Advice is given to heavy drug users to use more product to beat the 
test, compared to light users. Additionally, some advertisements on 
Internet home pages state that the products work for all toxins and 
every testing method. They are so confident in the effectiveness of 
their products that they offer a 200% Money Back Guarantee!

                        THE TYPES OF ADULTERANTS

    Since urine drug testing has been used in the civilian Federal and 
federally regulated workplace since the 1980's, several product types 
have developed over the years focused specifically on beating the urine 
drug test. There are four major product types: 1) dilution products; 2) 
cleansing products; 3) adulteration additives; and 4) substitute urines 
with actual reservoirs, catheters and life-like prosthetic delivery 
devices.

1. Dilution Products
    Efforts to dilute urine include those that add water to a small 
volume of the donor's urine and natural diuretics to expedite the 
elimination of urine from the body. Simply trying to dilute the urine 
internally to reduce the concentration of drug below the testing cut-
off can be done by drinking very large quantities of water, on the 
order of 120 oz of fluid. This is a very effective method of beating 
the drug test, especially when the donor knows when the drug test 
specimen will be collected, as in the case of a pre-employment drug 
test.

2. Cleansing Products
    Cleansing products, such as internal colonics, golden seal, 
psyllium husks, and specially formulated cleansing drinks, are marketed 
to ``cleanse the body of toxins'', more specifically in this case, 
illicit drugs. As an example, one product is advertised as a dietary 
supplement, guaranteed to ``work'' in less than an hour. The 
ingredients label lists very common items in many other drinkable 
fluids, such as filtered water, fructose, maltodextrin, natural and 
artificial flavors, citric acid, potassium citrate, potassium benzoate, 
potassium sorbate, ascorbic acid, red 40, and riboflavin. These 
cleansing products likely work along the same lines as products 
advertised to dilute the urine.

3. Chemical Adulterants
    Some products are actually very caustic and corrosive chemicals, 
such as acids and aldehydes, chemical oxidants such as nitrites, 
chromium VI (a carcinogen), and bleaches. These harsh chemicals must be 
added to the donor's specimen, which is easily accomplished when the 
donor is given the privacy of a restroom stall to provide their 
specimen. These chemicals are purposely sold in easily concealable 
small vials and tubes, so they can be brought into the collection site 
bathroom concealed in the donor's socks or underwear.

4. Prosthetic Devices Delivering Synthetic or Drug-free Human Urine
    The most cumbersome, yet highly effective, way to beat a urine drug 
test is to use a physical belt-like device hidden under the clothing 
which contains a reservoir to unobtrusively hold real human urine from 
another person that is free from drugs, and deliver that bogus specimen 
into the collection container through a straw-like tube, or through a 
prosthetic device that looks like real human anatomy, color-matched. 
This last described device is heavily marketed for workplace drug 
testing and criminal justice urine collection situations that require 
directly observed urine specimens to be provided. Synthetic urine can 
be used in place of real human drug free urine.

  CONCERNS TO THE FEDERAL WORKPLACE DRUG TESTING PROGRAM--THE NEED TO 
REQUIRE SPECIMEN VALIDITY TESTING AND PROPOSE DRUG TESTING ALTERNATIVE 
                               SPECIMENS

    In the late 1990's, it became evident that increasing numbers of 
federally regulated donor specimens contained chemicals intended to 
mask or beat the drug test. These compounds were identified through 
routine drug tests that were conducted but gave unusual and 
unreasonable chemical results. It then became necessary for SAMHSA to 
establish general testing criteria and issue guidance to laboratories 
to ensure more consistent analysis of chemicals added to the urine by 
donors with the intent of beating the drug test. In 1998, testing 
criteria and guidance were initially provided to the laboratories in an 
informal manner, with final comprehensive urine specimen validity 
testing requirements published in the Federal Register on April 13, 
2004. This Notice also required that each and every Federal job 
applicant or employee urine specimen be tested not only for illicit 
drugs, but also to determine if the specimen provided is a valid one, 
i.e., consistent with normal human physiology. These criteria did not 
solve the problem entirely, because the very nature of some of the 
products, particularly those that deliver synthetic urine or drug free 
human urine, produce specimens that actually test negative for illicit 
and pass specimen validity tests because they are testing drug-free 
urine. Since the April 13, 2004, publication of SAMHSA's new testing 
requirements, the advertising for this prosthetic type of device has 
increased. Additionally, the number of specimens now being reported as 
``invalid'' specimens by laboratories has also increased significantly. 
This is because the companies who produce and market the chemical 
masking agents know the chemistry of the specimen validity tests that 
are now required for Federal employee drug testing (and optional for 
DOT regulated industry drug testing programs). These firms are 
formulating new versions of the adulterants so they are not detected by 
these newly required specimen validity tests.

             THE EFFECTIVENESS OF SPECIMEN VALIDITY TESTING

    The effectiveness of required specimen validity testing has been 
limited because, as adulterants were identified and reported by 
laboratories and tests developed for them, the products themselves were 
changed by their manufacturers to avoid being detected. One example is 
the chemical oxidant potassium nitrite, an active ingredient in many 
adulterants. As soon as the Federal drug testing program established 
methods to detect potassium nitrite and thresholds beyond which to 
report it in specimens, new formulations of adulterants were released 
that had lower concentrations of that compound, so it would not be 
detected. And now the product contained more acid to make that 
formulation more effective--and not detected. Other marketers of 
adulterant products containing potassium nitrite chose to actually 
change the active component to one that the laboratories could not 
detect.
    In a September 1999 Washington Post newspaper article, a staff 
writer captured the following interview: ``They detect it and we move 
on,'' (blank) is an additive that allegedly fools the tests.'' 
``Beating the labs is like fighting the federal government--they're so 
big and slow . . . They can't detect the current formula.''
    One of the most disconcerting calls received by SAMHSA staff was 
from Perry Nuclear Power Plant located east of Cleveland, Ohio. In 
September 2002, staff at a drug test collection site at the Plant found 
evidence in a refuse container from a specific adulterant product. This 
product contains a small plastic bottle with a temperature indicator 
strip attached, two small plastic vials of white crystalline material, 
and instructions for use. Per the instructions, the user adds a 
microvial of urine to water and the product and mixes to dissolve. In 
about 30 seconds, the drug-free sample is ready to provide in place of 
the donor's own specimen. Since it was unclear who or how many 
applicants used this product, that entire day's applicants were 
retested, and 9 of them drug-tested positive for marijuana use. If it 
had not been for the careless discard of the package in a trash can 
near the collection site, the use of this product to beat the drug 
test, which was required as part of a pre-employment fitness for duty 
test in order to gain access to a nuclear reactor, would have gone 
undetected.

                   THE EFFECTIVENESS OF THE PRODUCTS

    In order to know what is in products currently marketed to beat a 
urine drug test, SAMHSA purchases them and tests them according to 
package direction to evaluate their effectiveness. If the specimen 
adulterant is effective, the agency performs chemical analyses on them 
to identify their active ingredients. The goal of most drug test 
masking agents is to ``fool'' the initial screening test into showing 
that there is no drug present in the specimen, so that it does not go 
on to further confirmatory testing. In order to keep our specimen 
validity testing procedures current and capable of detecting the ever-
changing formulations of adulterant products that are being openly sold 
in the marketplace, SAMHSA developed a way to assess the potential 
effect of specific urine adulterants on specimens tested in the 
federally regulated drug testing program.
    SAMHSA devised an experiment to evaluate how effective some of 
these masking agents really are. Certified negative urine was 
``spiked'' with marijuana metabolite (THCA, delta-9-
tetrahydrocannabinol-9-carbozylic acid), cocaine metabolite 
(benzoylecgonine), phencyclidine, opiate metabolite (morphine), and 
methamphetamine. The concentration of each analyte was twice the 
screening test cutoff. This standard analytical approach, taken with 
each substance that was added to the donor's specimen, was applied to 
more than 30 products purchased.
    Several versions of one particular product were tested and found to 
be able to significantly mask a positive drug test, especially for 
marijuana and morphine. What is most noteworthy is that each successive 
version of this product is more effective in masking the drug test. 
Each version of that product has been somewhat effective in masking the 
presence of marijuana, cocaine, morphine, phencyclidine, and 
methamphetamine. The chemical composition of each of these versions 
also changes, which was pointed out in its marketing as an asset.
    One adulterant manufacturer changes their product formula 
approximately every 6 to 9 months to stay ahead of the drug testing 
labs. It has openly stated that if a certain formula stays on the 
market too long, its product would be reverse-engineered by the labs 
and eventually become detectable. Older formulations are exchanged for 
a current formulation free of charge.
    One product that was purchased in April 2001 contained chromate, an 
oxidant that became known after it had been used for a time. Another 
version, which was purchased in April 2002, contained hydrofluoric 
acid, a powerful acid that can etch glass, and sodium nitrite, a strong 
oxidant. Again, after a time, this combination became known, and the 
formulation again changed. A subsequent product, purchased July 2002, 
was a newly designed system, this time consisting of two vials of 
chemicals added sequentially to urine in the donor's specimen 
collection cup. One of the vials contained an iodine-containing 
compound, the other vial contained hydrochloric and hydrofluoric acids. 
The most recent version of the product is currently available and being 
evaluated by our staff.

 Some products focus on both marijuana and opiates
 Some products do not affect the initial screening, but affect the 
        mass-spectrometry process used to confirm a positive result 
        from the initial screening, as is required by the Mandatory 
        Guidelines
 Some products are effective, and then disappear on their own
 Ironically, some products are marketed and sold as being able to beat 
        a drug test but have no effect at all.

      CONTINUED IMPACT OF ADULTERANTS ON PUBLIC HEALTH AND SAFETY

    These products are marketed with the intent to beat a drug test and 
are used with a ``catch me if you can'' attitude by donors who use 
illicit drugs and want to continue that illicit drug use while engaged 
in a public health and safety sensitive job. The marketplace for 
products to beat a drug test, whether a urine, hair, or oral fluid 
test, is growing. Products and suppliers are proliferating, as is the 
information about the use of these products. As noted previously, the 
Internet serves to advertise, market, and provide testimonials as to 
just how effective these products are, in addition to serving as a 
point of purchase.

  UNLESS STOPPED, THE NEXT MARKETING OPPORTUNITY FOR ADULTERANT SALES 
WILL TARGET DRUG TESTING AND SPECIMEN VALIDITY OF HAIR, ORAL FLUID, AND 
                                 SWEAT

    SAMHSA's current knowledge of the myriad of products to beat drug 
tests has forced the Agency to add specimen validity testing 
requirements for hair, oral fluid, and sweat in our proposed expanded 
Federal drug testing program. This is necessary because products are 
now being marketed and sold to beat any drug test, no matter what 
specimen is collected.

 There is a growing list (7) of products designed and marketed to 
        remove drugs from hair.
 There is another list of (4) products designed and marketed to remove 
        drugs from oral fluid.

                            ONGOING CONCERNS

    In closing, I want to repeat my earlier concern that although there 
were relatively few federal agency employee specimens reported in 
Fiscal Year 2003 as adulterated, substituted, and invalid, there is a 
clear trend showing an increase in the use of non-urine and ``clean 
urine'' substitutions to foil workplace drug testing programs. --
Although the numbers are a very small percentage of the total tested, 
every one of those adulterated, substituted and invalid tests 
represents a potential threat to national security and/or public 
safety.
    Mr. Chairman and Members of the Subcommittee, thank you for the 
opportunity to provide this information to you. I would be happy to 
answer any questions you may have.

    Mr. Whitfield. Ms. Reed, you are recognized for 5 minutes.

                   TESTIMONY OF SUSAN D. REED

    Ms. Reed. Thank you very much, Mr. Chairman, members of the 
committee.
    Let me introduce myself again. I'm Susan Reed. I'm the 
Criminal District Attorney for Bexar County, Texas. As a 
landmark, Bexar County includes--one of its municipalities is 
San Antonio.
    Mr. Whitfield. Our chairman of the full committee has come 
in, Joe Barton; and he is from Texas as well.
    Ms. Reed. Nice to see you, sir.
    Mr. Barton. You don't have to tell a Texan's he's from 
Texas.
    Ms. Reed. I brought another Texan with me, Cliff Herberg. 
He is the head of my White Collar Division.
    For the other members who aren't quite as familiar with 
Bexar County, let me give you just a little background 
information as a wherewithal of what I'm going to be talking 
about.
    We are a jurisdiction of 1.4 million people. Last year, we 
had 28,000 people on probation. Of those, we gave 21,000 drug 
tests. Now only 13,000 of those--only is not the right word, 
but half of them were on probation for drug offenses. So some 
of the people tested and are on probation and some are on for a 
drug offense, some aren't. What we found is that 30 percent of 
the people were flunking their drug tests.
    Now as a little more background, I was a district judge for 
12 years, and I used to order people on probation, order them 
to have to drug test, order them not to do drugs during their 
period of probation. Now I can tell you, all of you members, 
that you don't ask a drug user, are you still using, are you 
clean? You just don't believe them. So the only valid way of 
knowing whether they are complying with their probation and if 
they are in fact being rehabilitated is to drug test them. So 
when the products come on the market that are designed to 
defeat the drug test, they are a disservice to the judiciary, 
to the system, to the other citizens and to the society we're 
trying to protect and do something for.
    In Texas, we do have a law that deals with substances or 
devices that are designed to falsify a drug test. Now our law 
provides that if you possess such an item, it's a class B 
misdemeanor. A class B misdemeanor gets you 6 months in jail 
and maybe a $2,000 fine. If you manufacture or distribute such 
a device, it's a class A misdemeanor, and gets you a year and 
maybe $4,000 in a fine. But we do, and we are one of the 14 
States now that have such a law.
    Now a couple years ago, our probation office discovered 
somebody with one of these Whizzinators. So we did a little 
investigation into that.
    And let me explain to you, if you don't know what the 
Whizzinator is. It is a device that is something like a jock 
strap that comes with a fake penis attached to it, and it comes 
in all different sizes and colors. It is--also, when you order 
the kit, you get the synthetic urine and a heat pack.
    So when we discovered this in the Probation Department, we 
charged--we had two that we discovered within 2 weeks, two of 
them. We charged each of those, and they got the maximum 
sentences under the law.
    But I will tell you that I have one of the most aggressive 
White Collar Crime Divisions in the State, I believe, in my 
DA's office, so I said, let's go after the people who are 
selling this stuff. Because they are benefiting, as we saw the 
guy driving the Cadillac, and they are also giving a false hope 
to gullible people on the Internet who think they can still 
take drugs and defeat the test, which is there for a purpose.
    So being an economics major I am--I always like to go to 
the supply if I can to do something about it. So we did some 
investigation into technology, the seller of the Whizzinator. 
Found they are a limited partnership in California. But because 
we were dealing with misdemeanor laws, I was unable to go 
through our corporate penal code provisions to catch the 
company. I would have had to have just gotten to the 
individuals and for a misdemeanor and the difficulty in proving 
that individual's participation from eight States away or 
however far away California is, Chapel Hill, it's just not 
economically feasible for us. So we were unable to go after the 
company in a corporate fashion or on an individual fashion 
because they were selling out of California.
    That is why I would strongly recommend that there be some 
Federal legislation, either through use of the mail, through 
use of the Internet, prohibitions, whatever, for devices that 
are designed to defeat drug testing and be able to get at the 
corporations that are making the money off of it. I think that 
is where you really get to part of the root of the problem.
    I thank you very much for inviting me here allowing me to 
express my opinion, and I will certainly be willing at the 
appropriate time to answer any questions you might have.
    [The prepared statement of Susan D. Reed follows:]

Prepared Statement of Susan D. Reed, Criminal District Attorney, Bexar 
                             County, Texas

    Mr. Chairman Whitfield and members of the committee: I am Susan 
Reed, the Criminal District Attorney of Bexar County, Texas. For a 
familiar landmark to you, Bexar County includes San Antonio, Texas. I 
want to thank you for inviting me to testify before the committee. I am 
accompanied today by Mr. Cliff Herberg who is the head of my White 
Collar Crime Division and who oversees the type of offenses we are 
going to talk about.
    The subject matter of the hearing today concerns products that 
claim to prevent detection of certain substances by drug-testing 
programs. As you can well imagine, the office of the district attorney 
is very interested in techniques or devices designed to circumvent 
court ordered drug testing.
    As background, Bexar County has a population of approximately 1.4 
million people.
    In March of 2005, 28,073 individuals were on probation. This number 
includes both felony and misdemeanor probationers. As of April 2005, 
13,724 probationers are on probation for a ``drug offense''. In the 
category of drug offenses, I included 6,879 probationers who had DUI 
offenses. Based on these figures, roughly 48.8% of probationers are 
there due to a drug offense. And of that number, 50.1% are on probation 
for a DUI offense.
    As a little more background, I was a District Court Judge for 12 
years before becoming the District Attorney. My ultimate goal in 
placing someone on probation for a drug offense was to address the 
addiction that accompanies drug usage. As a District Attorney my goal 
is to enforce the laws established through the legislature. Drug 
testing is a valid and important tool in accomplishing this objective.
    To determine if a probationer is successfully abstaining from drug 
use, they must be tested. The last thing you want to do is take 
someone's word that they are clean and drug free.
    In 2004, the following represents the drug testing in our county:

             Statistics for time period 2/01/2004-2/28/2005
------------------------------------------------------------------------
                                                                    %
                                              Total   Positive  Positive
------------------------------------------------------------------------
Defendants Tested.........................    21,520     6,544      30.4
Specimens Collected.......................    70,501    11,367      16.1
Tests Performed...........................   250,135    13,009       5.2
Cost estimate of Lab operations including
 salaries and supplies for FY 2005
 $426,576.................................
------------------------------------------------------------------------

    Please allow me to explain these statistics. There are more tests 
than defendants because multiple tests will be done on one sample to 
isolate different types of drugs. There are more specimens than 
defendants because some defendants are required to test more than once.
    The first step in drug testing is collection. Testing is then 
performed on the collected urine sample. The tester tries to 
authenticate the collection by personally observing the probationer as 
they provide the urine specimen. Physical observation of the 
probationer is an absolute necessity. Otherwise, probationers could 
simply poor drug free urine into the sample cup and avoid detection. 
This ``physical observation'' requirement has caused some probationers 
to go to great lengths to try to outsmart probation departments.
    I believe the reason that I was invited to appear and testify 
arises from two prosecutions my office handled and I directed in the 
summer of 2002.
    A probationer, after reporting to his supervising officer, was 
taken into custody for a prior probation violation. Thereafter he was 
searched for weapons. What was found was not a gun, but a Whizzanator. 
You can probably guess from the name what the device was designed to 
do. A Whizzanator is designed to fool the person observing the drug 
test. It is designed like a jock strap but with a realistic looking 
phallic device attached. Also included in the $150 package is synthetic 
urine and a heat pack, which is used to make the synthetic urine feel 
as though it has just left the probationer's body.
    Upon encountering the Whizzinator in this first instance, our 
probation department alerted its entire staff to be on the lookout for 
its use. Within two weeks, a second probationer was caught trying to 
use the device to fool the drug testing procedures.
    Texas has a statute designed to prohibit and penalize this type of 
activity:
    Texas Health & Safety Code  481.133 entitled: Offense: 
Falsification of Drug Test Results states:

(a) A person commits an offense if the person knowingly or 
        intentionally uses or possesses with intent to use any 
        substance or device designed to falsify drug test results.
(b) A person commits an offense if the person knowingly or 
        intentionally delivers, possesses with intent to deliver, or 
        manufactures with intent to deliver a substance or device 
        designed to falsify drug test results.
(c) In this section, ``drug test'' means a lawfully administered test 
        designed to detect the presence of a controlled substance or 
        marihuana.
(d) An offense under Subsection (a) is a Class B misdemeanor.
(e) An offense under Subsection (b) is a Class A misdemeanor.
    Today in Texas, a Class A misdemeanor is punishable under Texas 
Penal Code  12.21 which states:
    An individual adjudged guilty of a Class A misdemeanor shall be 
punished by:

(1) a fine not to exceed $ 4,000;
(2) confinement in jail for a term not to exceed one year; or
(3) both such fine and confinement.
    A Class B misdemeanor is punishable under Texas Penal Code  12.22 
which states:
    An individual adjudged guilty of a Class B misdemeanor shall be 
punished by:

(1) a fine not to exceed $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both such fine and confinement.
    The two men found to have purchased these devices were each charged 
and convicted of the possessing these devices with the intent to 
falsify drug test results. They received the maximum sentences of 180 
days in jail and $2000 fine.
    Where does one get this device? It is sold on the Internet through 
a business called Puck Technology. Our investigation showed it was, at 
the time, located in Signal Hill, California. Of course the site 
carries the disclaimer the device be used in accordance with all 
``Federal, State and Local Laws.'' But, from the ``Testimonials'' on 
its website, it is clear that Puck Technology and everyone else knows 
that the devices are being used to defeat drug testing.
    Puck Technology and its Whizzinator are still going strong. A 
casual search on the Internet reveals that in 2003, after our cases in 
Bexar County, officials in Lubbock County, Texas encountered at least 
five instances of probationers attempting to use the Whizzinator. In 
February of this year, actor Tom Sizemore was caught trying to use the 
device while he was on probation for drug use.
    Fortunately, Texas is one of the few states that have made it 
against the law to possess such a device. Other states, such as New 
Jersey and Pennsylvania have also passed laws to address the problem. 
However, to really deal with the issue, the person shelling out the 
money to buy it shouldn't be the only one dealt a penalty. The 
individual or company that makes a profit working to defeat drug laws 
and our national drug policy should be held accountable for its 
actions. And, be aware, there are many businesses besides Puck 
Technology that are doing this. Businesses with websites such as 
Passyourdrugtest.com and pretestedurine.com sell numerous products and 
devices to circumvent drug tests. Each of these businesses profits from 
their wrong.
    Unfortunately, under existing state laws it is very difficult to 
prosecute out of state manufacturers and sellers of these devices. Each 
of them asserts that the products are only for legitimate purposes. 
They are not manufactured or distributed in the local jurisdiction. 
Resources are not available to travel between states to investigate the 
businesses and their operators. As a practical matter, the businesses 
can claim that they did not manufacture or distribute the device in our 
jurisdiction. They merely mailed it upon the request of a customer and 
are ``shocked'' to learn it was used illegally. While common sense 
tells us this is false and ridiculous, prosecutors must prove the case 
to a jury beyond a reasonable doubt. Proof beyond a reasonable doubt 
requires that we have evidence to defeat these claims.
    Local law enforcement would greatly benefit from federal 
legislation. Congress can act to make the interstate sale and 
distribution of these devices illegal. Congress can make it a crime to 
use the mail to ship such devices or use the wires to sell and 
distribute these devices. And, Congress could also enact legislation 
providing concurrent jurisdiction to both federal and state prosecutors 
to enforce the law. This will give local law enforcement, with the 
assistance of federal law enforcement agencies such as the FBI and DEA 
who have regional offices across the country, both the law and the 
practical ability to investigate and prosecute these offenders. With 
comprehensive federal legislation and the use of federal investigative 
manpower, local law enforcement can act to protect the integrity of the 
drug testing process, enforce its own laws and probation polices, and 
protect the public interest.
    In closing, I wish to thank you for the opportunity to testify 
before you today and to share my experiences.
    I will be glad to answer any questions you may have.

    Mr. Whitfield. At this time, we will have Mr. Moore.
    You have 5 minutes for your opening statement.

                 TESTIMONY OF HON. GEORGE MOORE

    Mr. Moore. Thank you, Mr. Chairman and members of the 
committee. I want to begin by thanking each of you for the 
opportunity to appear before you this morning.
    My name is George Moore, and I'm the Commonwealth's 
Attorney for a four county district, a rural district in 
eastern Kentucky. One of my duties and privileges is to work 
with the general assembly in Kentucky on behalf of the 
prosecutors and victims of crime in trying to get legislation 
passed.
    Two years ago, the Kentucky general assembly passed and 
Governor Ernie Fletcher signed Senate Bill 86. This was a bill 
that was sponsored by Senator Gary Tapp and its intent was to 
prohibit the knowing manufacture, marketing or distribution of 
any product which has, by its design, the intent to defraud or 
defeat alcohol or drug tests.
    I want to express my appreciation to Senator Tapp for being 
willing to sponsor this bill, for Senate Judiciary Chairman 
Robert Stivers and House Judiciary Chairman Gross Lindsay being 
willing to call it in their committee and to Attorney General 
Greg Stumbo for their help.
    I think it's interesting to note that Senate Bill 86 passed 
both houses of the Kentucky general assembly without a single 
negative vote, showing extensive bipartisan support for this 
matter that when I first began to discuss it with members was 
the topic of humor. But as we began to explore it, they began 
to realize how serious it was. Because some people will ask why 
in the world would any governmental body be interested in 
looking at a topic that seems, frankly, to be the topic for 
late night humor.
    Published figures would suggest that perhaps 8 percent of 
the negative drug test results are produced by adulterated 
samples. I don't claim to have any empirical evidence to 
support my opinion, but it is this country boy's feeling that 
it's a lot higher than that 8 percent figure.
    Typing in the simple phrase ``pass the urine test'' into an 
Internet search engine produces thousands of hits and response. 
Just the other day, as an experiment, I typed that in and got 
657 possible hits to go explore for information. These Web 
sites provide information on a plethora of chemical and organic 
substances designed to mask narcotic residue in urine samples 
provided for testing. For as little as $29.95, you can obtain a 
package of urine certified to be free of narcotics along with 
the heat units to keep that sample at body temperature.
    Many of these sites claim that they are not concerned about 
preventing reasonable or responsible law enforcement but rather 
are dedicated to the vigilant protection of the cherished 
constitutional claim of privacy. Such noble claims fail, 
though, with basic consideration of the true conduct that is 
being facilitated by the compromise of prudent drug testing.
    Initially, my interest in this arose from Ms. Reed's 
comments about the people in my district and the felons in my 
district that I had on probation and coming to understand that 
the conditions I had placed on them were simply not being 
complied with. The court and my office assumed that when 
probation and parole officers tested probationers we were 
receiving reliable test results, but anecdotal evidence that 
began to come in to us showed that numerous individuals were 
using substances primarily obtained through the Internet to 
thwart the testing.
    I was shocked when I first discovered the existence of all 
kinds of exotic named substances which could be ingested to 
mask drug tests, but I found myself being amused at the 
Whizzinator and other similarly named devices to deliver urine 
into a cup when visual observation was required. But all of 
this gave way to alarm as I came to the realization that there 
was absolutely no assurance, no assurance of any legitimacy to 
the monitoring that had been ordered by the courts in my 
district.
    That was shocking in and of itself. As I began to discuss 
with our people and began to talk to law enforcement personnel, 
I came to understand that I was just looking at the tip of the 
iceberg. Interstate 64 runs through a rural Kentucky district. 
We have a weigh station, and more and more drivers of 
commercial trucks were found to be found under the influence or 
in possession of controlled substances.
    I remember the day that we took a fellow out of an over-
the-road truck whose skin was just pockmarked from 
methamphetamine use. It was obvious that he had been eaten up 
with his use of methamphetamine, and yet he had to be passing 
drug tests because he was driving for a nationally recognized 
carrier. And I knew they were being tested. I drive that 
interstate every day, as do my wife and my children; and those 
tens of thousands of pounds of freight being carried on those 
trucks at 70 and sometimes faster than that were being driven 
by people who were impaired.
    Members of law enforcement also began to point out to me 
that even the men and women entrusted to protect our 
communities and carry guns were also susceptible using these 
tests to defeat drug tests. The list of occupations where 
employers and government assumed they were being diligent in 
testing for illegal drug use grew as we pondered the situation.
    Senate bill 86 was not a panacea, but it was a good first 
step. I have to confess that I take a good deal of pride that 
many of the Web sites I have now become familiar with bear a 
legend at the bottom notifying potential customers that they 
will not ship to Kentucky or a few of the other States that 
have passed these laws.
    I would be proud to see Congress adopt legislation designed 
to restore some integrity and confidence to random drug testing 
programs adopted by courts and employers. It's not a matter of 
invading the privacy of private citizens. It is a matter of 
protecting those innocent citizens from the danger that comes 
to them at the hands of impaired individuals who are driving 
trucks, carrying guns and doing all kinds of other things.
    I also would join with Mr. Stupak's concern about Internet 
drug pharmacies and note that Kentucky has just passed a very 
good bill on that, and I would be happy to answer questions at 
the appropriate time.
    [The prepared statement of Hon. George Moore follows:]

 Prepared Statement of Hon. George Moore, Commonwealth's Attorney 21st 
                            Judicial Circuit

    Mr. Chairman and members of the Committee I want to begin by 
thanking you for the opportunity to appear before you this morning. My 
name is George Moore and I am the Commonwealth's Attorney for a four 
county district in Eastern Kentucky. One of my duties and privileges is 
to work with the General Assembly of Kentucky on issues of concern to 
prosecutors, and victims of crime. Two years ago the General Assembly 
passed and Governor Ernie Fletcher signed Senate Bill 86. The Bill was 
sponsored by Senator Gary Tapp and its intent was to prohibit the 
knowing manufacture, marketing, or distribution of any product which is 
intended to defraud an alcohol or drug test. Before continuing I want 
to express my appreciation to Senator Tapp, Senate Judiciary Chairman 
Robert Stivers, and House Judiciary Chairman Gross Lindsay for their 
support and cooperation in consideration of this bill. Senate Bill 86 
passed both house of the General Assembly without a single negative 
vote, showing remarkable bipartisan support.
    Some would ask why a bill is needed to address sale of packaged 
urine and chemical substances that modify the results of urine testing. 
Published figures suggest that perhaps eight per cent of negative urine 
tests performed are produced by adulterated samples. While I have no 
empirical evidence to support my opinion, I suspect the number far 
exceeds that estimate. Typing the simple phrase ``pass the urine test'' 
into any internet search engine produces thousands of ``hits'' in 
response. One recent effort on my part yielded 657,000 possible web 
sites for review.
    These web sites provide information on a plethora of chemical and 
organic substances designed to mask narcotic residue in urine samples 
provided for testing. For as little as $29.95 you can obtain a package 
of urine certified to be free of narcotics along with heat units to 
keep the sample at body temperature. Many of these sites make a point 
to claim they are not concerned about preventing reasonable law 
enforcement, but rather are dedicated to the vigilant protection of 
cherished constitutional claims of privacy.
    Such noble claims fail with very basic consideration of the true 
conduct being facilitated by the compromise of prudent drug testing. 
Initially my interest in this topic arose from a growing realization 
that mandated drug testing of convicted felons on probation in my 
circuit was simply unreliable. The Court and my office assumed that 
when Probation and Parole Officers tested probationers we were 
receiving reliable test results. Anecdotal information continued to 
come to us that numerous individuals were using substances obtained 
primarily over the internet to thwart testing. I must confess I was 
shocked when I first discovered the existence of all kinds of exotic 
named substances which could be ingested to mask drugs in the test 
samples. Initial amusement at a Whizzinator and other similarly named 
devices used to deliver urine into a cup when visual observation was 
required, gave way to alarm as I came to the realization that there was 
absolutely no assurance of legitimacy to the monitoring ordered by the 
Court.
    In discussions with law enforcement personnel I came to understand 
I was just looking at the tip of the ice berg. Interstate 64 runs 
through my rural Kentucky District. We have a weigh station in Rowan 
County and more and more drivers of commercial trucks were found to be 
under the influence of or in possession of controlled substances. It 
was troubling to learn that the drivers of these trucks carrying tens 
of thousands of pounds of cargo along highways used by every citizen of 
my community were also availing themselves of these products, and 
thereby defeating the drug tests used to insure they were sober while 
behind the wheel of these big rigs.
    Members of law enforcement pointed out to me that men and women 
entrusted to protect our communities and carry guns were also capable 
to using the same substances to conceal narcotics use which could 
seriously impair their abilities. The list of professions and 
occupations where employers and government assumed they were being 
diligent in testing for illegal drug use grew and grew as we pondered 
this situation.
    Senate Bill 86 is not a panacea, but it is a good first step. I 
must confess I take a good deal of pride when many of the web sites I 
have now become very familiar with bear a legend at the bottom of the 
page notifying potential customers that they will not ship to Kentucky 
and a few other states that have adopted meaningful statutes to control 
this industry. I would be even more proud to see Congress adopt 
legislation designed to restore some integrity and confidence to random 
drug testing programs adopted by Courts and employers. It is not a 
matter of invading the privacy of innocent citizens, it is a matter of 
protecting those innocent citizens from danger at the hands of impaired 
individuals.

    Mr. Whitfield. Thank you, Mr. Moore.
    Dr. Captain, you are recognized for 5 minutes for your 
opening statement.

                   TESTIMONY OF JILL F CAPTAIN

    Ms. Captain. Thank you, Mr. Chairman. I am here on behalf 
of the drug-and-alcohol-testing industry Association. We are 
also known as DATIA. DATIA supports a Federal solution to 
ending the manufacture, sale and distribution of products meant 
to thwart a drug test. The piecemeal approach of individual 
States' attempts to punish the sellers and users of these 
products is inadequate. E-commerce has perpetuated the 
distribution of these products and further impaired the ability 
of law enforcement agencies to track down violators. These 
products pose a public safety risk and impose a serious 
financial burden on American businesses.
    More than 12 million employees are subject to mandatory 
drug testing under the Department of Transportation guidelines. 
These employees are in safety-sensitive positions, including 
truck drivers, airline pilots, bus drivers, mass transit 
operators, railroad engineers, pipeline workers, mariners and 
related safety-sensitive personnel. Each drug user who 
successfully evades testing using these products poses a 
serious safety risk to the public.
    The DOT published the DOT Omnibus Transportation Employee 
Testing Act of 1991, and from those guidelines, DATIA has 
developed industry standards that promote the integrity of the 
entire drug-testing process, including ensuring the privacy of 
donors, the security of the collection process, chain of 
custody trails, verification of accurate reports and protecting 
employees from flawed interpretation of results. DATIA has 
provided standards and training that ensures a sound testing 
process.
    I have been asked to give a brief outline of a drug test. I 
think this outline does outline the practices that are followed 
by employers, and it also shows the procedures that are 
required that we do to prevent drug-testing fraud.
    The process can be broken down into three distinct parts: 
the collection; testing, which is onsite testing at a certified 
laboratory; and reporting of results. I will highlight the 
efforts required to prevent and detect adulteration and 
substitution. This outline refers only to urine drug screen 
collection regulated and approved by the DOT.
    Before a donor arrives at a collectionsite, the 
collectionsite is secured. It is a bathroom. It has no running 
water supply available to the donor. Excess equipment, such as 
trash cans and paper towel holders, are removed, because those 
devices can be used to conceal products prior to the 
collection, and the water in the toilet has a bluing agent 
added so they can't scoop toilet water.
    As part of the collection process, the donor is asked to 
remove any extra outer garments such as jackets, coats or 
coveralls or heavy boots. No further disrobing is required.
    The donor is asked to empty pockets to check for containers 
that might contain substances used to adulterate specimens.
    The donors then wash their hands, again to remove any 
surface contaminants that may be brushed into the specimen.
    A sealed collection container is handed to the donor, and 
they are instructed to go into the bathroom and urinate. They 
are allowed to urinate behind a closed door, absent the 
evidence of prior substitution or adulteration.
    They are prohibited from flushing, because flushing can 
obviously destroy evidence. When the donor exits the bathroom, 
there is a temperature strip on the container to make sure that 
the temperature is between 90 and 100 degrees. This is to 
detect the addition of water or other liquids. And the 
collector observes the specimen for color and odor.
    There is a paperwork chain of custody which has detailed 
information about the collection event. It is recorded, and 
copies are distributed to lab, collector, donor and the medical 
review officer.
    At the testing laboratory, and I am sure that the 
laboratory people can describe this better, but I know the 
basic outline, when the specimen arrives at the lab, it is 
double checked to make sure the ID numbers of the specimen 
match up with the paperwork. The specimen undergoes several 
steps of validity testing. It is checked for specific gravity, 
that is, how diluted it is, pH, or acidity, and creatinine, 
which is a waste product.
    Then the next phase of testing is adulterant testing for 
the known adulterants. Both of these tests are due at the cost 
of the submitter.
    The specimen is subjected to screening tests for five drugs 
under DOT guidelines. If a screening is positive, the specimen 
goes through a second round of testing using GCMS, a different 
type of technology that is highly specific. If that test is 
confirmed, then that test is considered positive.
    All lab results regulated by the DOT must be received in 
the office of a Medical Review Officer, who must be a licensed 
MD with additional certification. When a non-negative result is 
received, the lab result is matched to a copy of the chain of 
custody to eliminate clerical errors.
    The donor is contacted by the MRO to investigate the 
possibility of a legitimate medical explanation. If there is no 
legitimate medical explanation, then the final result is 
considered positive.
    The ultimate protection for the donor though is a split 
specimen, which, if the donor challenges, there is always a 
second specimen that is sealed and labled that can be retested 
at a different lab. The medical review process is primarily to 
protect the donor.
    DATIA believes that Federal legislation is needed to 
curtail the use of substances and devices that subvert drug 
tests. The products pose a safety risk to the transportation 
industry, and they increase employer costs associated with 
worker's comp, health benefits, impair productivity, and they 
increase employers' costs associated with drug testing.
    Thank you.
    [The prepared statement of Jill F Captain follows:]

Prepared Statement of Jill F Captain, Drug and Alcohol Testing Industry 
                              Association

Addendum:
    Overview of a typical urine drug screen collection regulated by the 
Department of Transportation (this scenario does not include every step 
but outlines the essential elements):
Securing the collection site
 The bathroom has no water supply available to the donor
 Excess equipment such as trash cans are removed from the room 
        (prevents concealment of products place in the bathroom before 
        the collection takes places)
 The water in the toilet has bluing agent added
Collection process:
 The donor is asked to remove extra outer garments such as jackets, 
        coats or coveralls and heavy boots
 Photo identification is required and checked
 The donor is asked to empty pockets to check for bottles that might 
        contain liquids or containers of substances that might be used 
        to adulterate specimens
 The donor then washes his/her hands
 The collector opens a sealed collection container and hands it to the 
        donor
 The donor is instructed to urinate in the container
 The donor is allowed to enter the bathroom and shut the door, if the 
        donor flushes the toilet, the collection process will start 
        over
 When the donor exits the bathroom, the collection container has a 
        temperature strip and the temperature of the specimen must be 
        within 90 to 100 degrees Fahrenheit (this is to detect the 
        addition of water or other liquid)
 The collector observes the specimen for color and odor (the human 
        check for adulterants)
 The collector then pours the urine into 2 separate containers. Each 
        container is sealed with a label and the donor initials each 
        label. Two containers are used to hold the original specimen. 
        One container is designated bottle A and used for testing. The 
        second container is designated bottle B and reserved if a donor 
        wishes to challenge a result, this challenge is called ``split 
        testing''.

Paperwork (aka chain of custody):
 The chain of custody form is a multipart carbonless form. Each page 
        is barcoded and the sealing labels of the urine containers 
        (these labels are part of the top page) have the same barcode
 The donor's name and identification number is printed. The donor also 
        signs this form. Additionally, the date of birth and contact 
        telephone numbers are printed.
 The form that goes to the laboratory has only the id number and no 
        other donor indentifying information.
 Additional info on the chain of custody includes the collector's name 
        and signature, the date and time of the collection, the company 
        name and contact information and the method of transportation 
        of the specimen to the lab.
 When the paperwork is complete, the specimens and one copy of the 
        form are sealed in a tamper evident bag for shipping.
 The donor is given a copy of the chain of custody.

Laboratory processing (this process can be more properly explained by a 
        representative of a SAMHSA-certified lab):
 When the specimen arrives at the lab, the paperwork and specimen 
        bottles are checked to ensure they match.
 The specimen undergoes validity testing (specific gravity, pH and 
        creatinine) this is to ensure that the specimen is consistent 
        with human urine.
 Adulterant testing is done if requested (not currently required under 
        DOT regulations and costs approximately 10% more.
 If these tests are cleared, then the specimen is subjected to a 
        screening test for 5 drugs: cocaine, opiates, PCP, marijuana, 
        amphetamines.
 If the screening test is positive, the sample undergoes a 
        confirmation test using a different technology that is highly 
        specific. If that test is confirmed, the test is considered 
        positive at the lab level.

Medical Review:
 All test results regulated by DOT must be received in the office of a 
        Medical Review Officer (MRO, who must be a licensed MD with 
        additional certification)
 When a non-negative result is received, the lab result is matched to 
        a copy of the chain of custody to eliminate clerical errors.
 The donor is contacted by the MRO to investigate the possibility of a 
        legitimate medical explanations. For instance, if a donor can a 
        result positive for opiates if he/she took Tylenol with 
        codeine. The donor is required to submit a note from the 
        treating physician documenting the safe and appropriate use of 
        the medication. Our office verifies that the physician has an 
        active license to practice. If all criteria are met, the 
        ultimate result of the test is NEGATIVE. This will be the only 
        result the employer will see.
 If there is no legitimate medical explanation, then the final result 
        is POSITIVE. Under DOT guidelines, donors are offered the 
        process of split testing. With split testing, the second 
        container label bottle B (which is still sealed and labeled) is 
        shipped to a DIFFERENT SAMHSA-certified lab for retesting.
    Sources of error: urine drug screen collection is a lengthy, 
meticulous process. Errors can occur during the collection process by 
neglecting to prevent obvious attempts at adulteration or substitution 
(emptying of pockets or a bathroom that hasn't been secured). Human 
clerical error can occur during the reporting process but there are 
checks and balances that prevent or ameliorate the effects, such as 
split testing.
    False positive tests: the ultimate security to prevent or identify 
false positive tests is the process of split testing. If the first lab 
had a flaw in their testing system and the specimen is retested by a 
second, independent lab this acts as a check. My experience has been 
that even people who vehemently deny use, will request split testing. A 
lab representative can speak to the false positive issue better than I.
    Invalid tests: are cancelled but require further investigation. 
There are some prescription medications that can interfere with the 
screening test to produce an invalid test. If there is not an adequate 
medical explanation, the donor is directed to give another specimen 
under direct observation.
    Dilute tests: There are very specific guidelines but basically 
there are 3 categories of dilute. 1) Mildly dilute which is commonly 
seen--can be ignored or may require a second unobserved collection. 2) 
Very dilute--which is rarely seen, requires second observed collection. 
3) Extremely dilute--is not considered consistent with human urine and 
is considered substituted.
    Legitimate medical explanation: if a donor has a documented 
prescription from a licensed physician that ensures safe and 
appropriate use of medication, there is no requirement for a follow-up 
drug test. As a physician on the prescribing side and having had to 
produce such documentation, I feel comfortable as the investigating MRO 
that this poses a minimal safety risk. Additionally, it is rare for a 
person to have a legitimate prescription.
    Minimal standards for a non-DOT regulated employer. We recommend to 
all employers that they adhere to the standards set by DOT.
    The DOT standards go as far as can be reasonably accepted by a 
population that is largely innocent.
    Comprehensive supervision or observed collection: The DOT does not 
require observed collections in the absence of evidence that suggests 
adulteration or substitution. I find it difficult to imagine that the 
DOT would require observed collections as a standard given that most 
people are innocent. I think the extra invasion of privacy would be 
unacceptable.
    Recollection of dilute and invalid specimens: My experience has 
been that when donors are sent back for a recollection after a dilute 
specimen, there is a higher positive rate. My experience with invalid 
specimens is that there has been no legitimate medical explanation and 
, of course, there should be a recollection.
    Accuracy of hair and saliva testing: the accuracy of all modes of 
testing are equally accurate. Hair and saliva testing is theoretically 
not subject to adulteration or substitution since it is an observed 
collection.
    Window of detection: the period of time a specimen will show a 
positive result after use of a drug.

 Hair specimens will generally not be positive until about a week 
        after use but will show use for months prior to the collection 
        depending upon the length of the hair.
 Urine specimens will generally be positive roughly 6 hours after use 
        up to about 3 days.
 Saliva specimens can be positive immediately after use for marijuana 
        soon after use for other drugs but can only be detected for 
        about 24 hours after use.
    Federal legislation is needed to curtail the use of substances and 
devices that subvert drug tests. These products pose a safety risk in 
the transportation industry; they increase employer costs associated 
with workers compensation, health benefits, impaired productivity; and, 
they increase employers costs associated with drug testing and the 
increased need to improve the technology to detect the products.

    Mr. Whitfield. Thank you very much.
    Mr. Sims, you are recognized for 5 minutes.

                     TESTIMONY OF JEFF SIMS

    Mr. Sims. Thank you, Mr. Chairman and committee members, 
for the opportunity to speak today on behalf of the Substance 
Abuse Program Administrator's Association. SAPAA is a nonprofit 
trade association who represents all the alcohol/drug-testing 
service agents, including third-party administrators, in-house 
administrators, medical review officers, laboratories, 
substance-abuse professionals, manufacturers of testing devices 
and collectionsites. Our membership includes representation 
from all 50 States and Canada in all of the above professions. 
On behalf of SAPAA members, who represent well over 200,000 
employers and more than 3.5 million DOT regulated drug tests, I 
would like to take the opportunity to provide comments on 
adulterant and substitution issues arising from products sold 
that claim to prevent detection of certain substances by direct 
testing programs or allow for the substitution of the 
specimens.
    In addition, I am co-owner of a'TEST Consultants, Inc., in 
North Little Rock, Arkansas. My company administers drug-and-
alcohol-testing programs for employers, and we do this 
throughout the United States.
    I am here to tell you today that the drug-testing 
professionals of SAPAA are highly concerned about the games 
employees play on a daily basis in the collection centers 
around America to beat a drug test. They are resourceful, 
creative and have little fear that their misconduct will truly 
have consequences. SAPAA believes that the integrity of 
regulated drug testing is at stake if Congress does not take 
strong action to beat these drug cheaters at their game.
    Attached to my remarks is a letter from the former acting 
director of the U.S. Department of Transportation's Office of 
Drug and Alcohol Policy and Compliance in which he expresses 
similar concerns of that office.
    What is the human cost of an adulterated or substituted 
specimen? It is the bus driver with the load of school kids who 
crashes into a bridge because he is high on cocaine, when only 
3 days earlier he tested negative by substituting a specimen 
for his own.
    It is a drug-testing collector who is assaulted after 
informing a donor that his sample could not be accepted because 
it was outside the normal temperature range. When told that 
another specimen would need to be provided, the donor became 
irate, causing the package containing a yellow liquid to fall 
from his pants leg. The donor grabbed the collector and through 
her into the wall, injuring her elbow, but still capable of 
reaching an installed panic button. As the donor fled from the 
office, he took his cold specimen and also the plastic bag that 
had fallen out of his pants leg.
    On May 4, 2005, this donor was found guilty of a class A 
third degree battery charge, given 1 year of probation, fined 
$500 plus court costs, found guilty of Arkansas' new anti-
adulterant law, which is a class B misdemeanor charge, and was 
fined an additional $350 plus court costs.
    It is a nuclear plant operator in the southeast discovering 
that a contractor employee adulterated his sample with a 
commercially available product during a pre-access fitness-for-
duty test. His first initial screening test was positive for 
marijuana, THC, but, oddly, after it was sent to an HHS 
certified laboratory, it was confirmed by gas chromatography 
mass spectrometry as negative.
    With an obvious discrepancy, the operator requested an 
additional adulterant test be performed. This additional test 
showed the presence of pyridinium chlorochromate, a known 
adulterant used for masking THC in the urine. The employee was 
interviewed. He admitted to being a regular marijuana user and 
using this adulterant product to beat previously required 
tests.
    There are more stories from collectors, medical review 
officers, TPAs and employers around the country where donors 
attempt and on occasion succeed to beat a drug test.
    It is the hands-on experience of SAPAA members around the 
country who deal with this plague every day that has caused our 
association to take such a strong stance against these 
cheaters. State-by-State patchwork legislation is not a 
solution. Only when Congress decides to take some strong action 
to truly punish federally regulated employees and applicants 
who choose to attempt to cheat will drug-testing adulteration 
and substitution come to a screeching halt.
    Such action by Congress will effectively cause a drop in 
demand for the kind of cheater's aids that litter the internet, 
head shops and certain nutrition stores. SAPAA recommends that 
Congress take a serious look at amending the Department of 
Transportation laws and include a lifetime CDL disqualification 
and significant increased penalties if a donor presents an 
adulterated or substituted specimen in a DOT regulated test.
    SAPAA also believes it would be appropriate for a data base 
to be maintained by the DOT of employees and applicants who 
have been determined by the DOT to have presented an 
adulterated or substituted specimen for regulated testing. 
SAPAA believes a slight modification to the Federal custody and 
control formula used in the testing process should be made to 
warn the donor of the consequences of such misconduct.
    SAPAA stands willing in any manner it finds appropriate. We 
have included in our written submission suggested legislation 
from SAPAA's general counsel to accomplish what we have 
recommended with regard to the commercial drivers. You will 
note the suggested highlighted additions to 49 USC 521 and 49 
USC 31310. Similar amendments can be made to include employees 
covered by the other Federal agencies.
    SAPAA stands ready to assist this committee with that 
effort and is willing to marshal the support of our membership 
to call their Congressmen and Senators and request the speedy 
approval of such legislation. We believe such a measure will 
definitely have broad support.
    As I said at the beginning of my remarks, the members of 
SAPAA belief the integrity of federally regulated testing is at 
stake, and with that, the safety of our Nation's rail lines, 
skies, roadways, pipelines and navigable waterways.
    In conclusion, on behalf of all those professionals in the 
alcohol and drug-testing industry and employers everywhere, 
SAPAA thanks this committee for spotlighting this serious 
problem and its commitment to beat the cheats.
    [The prepared statement of Jeff Sims follows:]

     Prepared Statement of Jeff Sims, The Substance Abuse Program 
                         Administrators Program

    Dear Honorable Ed Whitfield: I would like to thank the Chair and 
committee members for the opportunity to speak today on behalf of 
Substance Abuse Program Administrators Association (SAPAA).
    The Substance Abuse Program Administrators Association (SAPAA) is a 
non-profit trade association whose members represent all of the alcohol 
and drug testing service agents including third party administrators 
(TPAs), in-house administrators, medical review officers (MROs), 
Substance Abuse Professionals (SAPs), manufacturers of testing devices, 
and collection sites/collectors. Our membership includes representation 
from all 50 states and Canada in all the above professions. Therefore, 
on behalf of SAPAA members (who represent well over 200,000 employers 
and more than 3.5 million DOT regulated drug tests) and the drug 
testing industry as a whole will take this opportunity to provide 
comments on adulterant and substitution issues arising from products 
sold that claim to prevent detection of certain substances by drug 
testing programs, or allow for the substitution of a specimen.
    In addition, I am co-owner of a'TEST consultants, inc. in North 
Little Rock, Arkansas. My company administers alcohol and drug-testing 
programs, provides medical review officer services, performs onsite 
specimen collections in the workplace, performs collections at three 
office locations, and collections at contracted facilities throughout 
the United States.
    I am here to tell you today that the drug testing professionals of 
SAPAA are highly concerned about the games employees play on a daily 
basis in the collection centers around America to beat a drug test. 
They are resourceful, creative and have little fear that their 
misconduct will truly have a consequence. SAPAA believes that the 
integrity of regulated drug testing is at stake if Congress does not 
take strong action to beat these drug cheaters at their game. Attached 
to my remarks is a letter from the former acting director of the U.S. 
Department of Transportation's Office of Drug and Alcohol Policy and 
Compliance (ONDCP), in which he expresses similar concerns of that 
office.
    What is the human cost of an adulterated or substituted drug 
specimen?
    It is the bus driver with a load of school kids who crashes into a 
bridge because he is high on cocaine, when only three days earlier he 
tested negative by substituting a specimen for his own.
    It is a drug-testing collector who is assaulted after informing a 
donor that his sample could not be accepted because it was outside the 
normal temperature range. When told that another specimen would need to 
be provided; the donor became irate causing a package containing a 
yellow liquid to fall from his pants leg. The donor grabbed the 
collector and threw her into the wall, injuring her elbow but capable 
of reaching an installed panic button. As the donor fled from the 
office, he took his cold specimen and also the plastic bag that had 
fallen out of his pants leg. On May 4, 2005, this donor was found 
guilty of a Class A 3rd Degree Battery Charge, given one year of 
probation, fined $500 plus court costs, found guilty of Arkansas' anti-
adulterant law which is a Class B Misdemeanor Charge, and was fined an 
additional $350 plus court costs.
    It is a nuclear plant operator in the southeast discovering that a 
contractor employee adulterated his sample with a commercially 
available product during a pre access fitness for duty test. His first 
initially screening test was positive for Marijuana (THC), but oddly 
after it was sent to a HHS certified laboratory; it was confirmed by 
gas chromatography mass spectrometry as negative. With an obvious 
discrepancy, the operator requested an additional adulterant test be 
performed. This additional test showed the presence of pyridinium 
chlorochromate, a know adulterant used for masking THC in the urine. 
The employee was interviewed, he admitted to being a regular marijuana 
user and using this adulterant product to beat previously required 
test.
    There are more stories from collectors, Medical Review Officers, 
TPAs and employers around the country where donors attempt, and on 
occasion succeed, to beat a drug test.
    It is the on-hands experience of SAPAA members around the country 
who deal with this plague every day that has caused our Association to 
take such a strong stand against these cheaters. State by state 
patchwork legislation is not a solution. Only when Congress decides to 
take some strong action to truly punish federally regulated employees 
and applicants who choose to attempt to cheat will drug testing 
adulteration and substitution come to a screeching halt. Such action by 
Congress will effectively cause a drop in demand for the kind of 
cheater's aids that litter the Internet, head shops, and certain 
nutrition stores. SAPAA recommends that Congress take a serious look at 
amending the Department of Transportation laws and include a lifetime 
CDL disqualification and significant increased penalties if a donor 
presents an adulterated or substituted specimen in a DOT regulated 
test. SAPAA also believes it would be appropriate for a database to be 
maintained by the DOT of employees and applicants who have been 
determined by the DOT to have presented an adulterated or substituted 
specimen for regulated testing. SAPAA believes a slight modification to 
the federal custody and control forms should be made to warn the donor 
of the consequences of such misconduct.
    SAPAA stands willing to assist this Committee in any manner its 
finds appropriate. We have included in our written submission suggested 
legislation from SAPAA's General Counsel to accomplish what we have 
recommended with regard to Commercial Drivers. You will note the 
suggested highlighted additions to 49 U.S.C. 521 and 49 U.S.C. 31310. 
Similar amendments could be made to include employees covered by the 
other DOT Agencies. SAPAA stands ready to assist this committee with 
that effort and willing to marshal the support of our membership to 
call their Congressmen and Senators and request speedy approval of such 
legislation. We believe such a measure will have broad support.
    As I stated at the beginning of my remarks, the members of SAPAA 
believe that the integrity of federally regulated testing is at stake, 
and with that the safety of our nation's rail lines, skies, roadways, 
pipelines and navigable waterways. We request serious consideration of 
our proposal.
    In conclusion, on behalf of all of those professionals in the 
alcohol and drug testing industry and employers everywhere, SAPAA 
thanks this Committee for spotlighting this serious problem and its 
commitment to beat the cheats.

    Mr. Whitfield. Thank you, Mr. Sims.
    Dr. Sample, you are recognized for 5 minutes.

                 TESTIMONY OF R.H. BARRY SAMPLE

    Mr. Sample. Mr. Chairman, members of the committee, thank 
you for the opportunity to speak with you today about a problem 
that impacts the quality and accuracy of all employers' drug-
testing programs and potentially the health and safety of 
employees in the workplace.
    I am Barry Sample, the Director of Science and Technology 
for the Employers Solutions Division of Quest Diagnostics. We 
are the Nation's leading provider of diagnostic testing, 
information and services. My division, which performs more than 
8 million drug tests annually, is dedicated to providing 
innovative solutions to meet an employer's screening needs.
    Relevant to today's discussions, our laboratory tests of 
urine are for drugs of abuse and adulterant testing, using 
patented testing procedures. We also perform laboratory-based 
hair and oral fluid tests for drugs of abuse. Tests using these 
specimens are growing and are also subject to attempts to beat 
the drug-testing process.
    Today, I am testifying on behalf of Quest Diagnostics on 
the subject of trends in workplace drug testing and the impact 
and costs associated with the use of products designed to 
defeat the accuracy of urine drug tests.
    We have been tracking and reporting the trends in workplace 
drug testing performed by our network of six SAMHSA certified 
laboratories with the Quest Diagnostics drug-testing index 
since 1988. During this time, the overall positivity rate has 
gone from a high of about 13.5 percent in 1988 to 4.5 percent 
today. Does this mean that drug use by workers is decreasing? 
Perhaps that is part of the story. Our data, as well as the 
government drug use data, indicates that applicants and 
employees of companies with a drug-testing program are much 
less likely to test positive for or use drugs, by as much as 50 
percent.
    For example, in our data, workers subject to federally 
mandated preemployment and random testing have a positivity 
rate that is almost half that of private sector workers. The 
latter are typically subject only to preemployment tests.
    Another part of the story are the products that are 
designed to help a donor beat a drug test, that is, cheat. 
These products include substances that a donor consumes in 
order to dilute or cleanse their urine specimen, products that 
are added to, that is, adulterate a specimen, and, even more 
insidious, products, devices, that cannot be easily detected 
short of an observed collection. This last group enables a 
donor to substitute clean, negative urine for their own.
    In order to determine if a specimen is real, adulterated or 
substituted, laboratories perform a variety of tests to 
determine specimen validity. Unfortunately, only more, slightly 
more, than 50 percent of the tests we perform undergo all of 
these comprehensive tests, presumably due to the added costs 
involved.
    In private sector testing of specimen validity, dilute 
specimens account for about 4 percent of all specimens. While 
not all of these dilute specimens are the result of donors 
trying to cheat, a significant portion are. In a study of over 
2 million specimens, we found that drug positive specimens are 
more than two times more likely to have an indicator of 
dilution.
    Another study of over half a million specimens conducted in 
1988 looked at specimens where we detected either marijuana or 
cocaine metabolites, both above as well below the 
administrative cutoff on the initial or screening test. We 
found nearly an equal number of specimens in both groups.
    Furthermore, in this study, we found that approximately an 
equal number of specimens that contained marijuana or cocaine 
metabolites, regardless of the cutoff, had an elevated 
incidence of this indicator of dilution. This means that some 
of those above the cutoff were unsuccessful attempts at 
dilution while some of those below the cutoff are likely 
successful attempts at dilution.
    As laboratories enhanced their tests for specimen validity, 
the anti-drug-testing industry responded with a continual 
evolution and sophistication of the products and devices used 
to defeat the drug-testing process. It is a continual cat-and-
mouse game, and, unfortunately, this industry is developing 
systems that may be undetectable by laboratories.
    Over the last 6 years, the incidence of the largest type of 
adulterated specimens has dropped 90 percent. An invalid 
specimen is one with an adulterant that cannot be identified or 
one with abnormal indicators of dilution. Over the last 3.5 
years, the incidence of an invalid specimen has increased more 
than 40 percent, and in the first 4 months of this year, the 
number of invalid specimens has jumped an additional 60 percent 
over 2004.
    There are two main effects of these invalid specimens. An 
invalid result usually requires an immediate observed 
recollection of another urine specimen. The associated cost of 
such second specimens due to invalid results reported by our 
laboratories would directly cost employers an additional $1 
million annually, not including the lost opportunity costs 
related to the delay in putting someone to work.
    The more insidious cost is the impact of buying time for a 
donor to clear their system of drugs. In this case, the donor 
would be able to produce a negative result on the recollection 
and be hired, and since most private sector employers do not 
test current employees, this represents a drug user that has 
been put to work and who is thereby putting him or herself as 
well as their coworkers at risk.
    Since the use of the devices employed to provide a clean 
urine specimen is not detectable by a laboratory test of 
specimen validity, individuals using these products are able to 
totally circumvent the testing product. As a scientist who has 
pursued drug-test cheaters, I can tell you how frustrating it 
is to encounter technology being used to subvert the drug-
testing process.
    I want to thank you once again for the opportunity to speak 
about this important topic. I would be happy to entertain any 
questions you may have regarding either my oral or written 
testimony.
    [The prepared statement of R.H. Barry Sample follows:]

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    Mr. Whitfield. Thank you very much.
    Dr. Dasgupta, you are recognized for 5 minutes.

                  TESTIMONY OF AMITAVA DASGUPTA

    Mr. Dasgupta. Honorable chairman and honorable members of 
the panel, thank you for the opportunity to testify before you. 
We do drug testing for a six-hospital system in Harman, Texas, 
and we also do emergency room drug testing.
    In 1986, September 15, President Reagan issued Executive 
Order Number 12564 directing Federal agencies to enact a drug-
free work environment. In the military, where the urine 
collection process is supervised, chances of adulterated 
specimens are remote. But in preemployment testing, which we 
do, where direct supervision of specimen collection is not 
practiced, a person can beat a drug test.
    Interestingly, in a State like Texas, where buying those 
adulterated products are against the law, we still see 1 or 2 
percent of specimens adulterated, and we test the specimen 
using this dipstick which is commercially available. It is 
called Intect 7. It has a color code, and if there is any 
adulterant presence, the color changes and the colors are in 
the bottom.
    How is this happening? Well, maybe they are buying it from 
their friends.
    Now, simple household chemicals, such as table salt, 
vinegar, lemon juice, can beat a drug test, because those 
things can change the pH, or the specific gravity of urine, 
making the amino acid screening invalid. But those adulterants 
can be easily detected by specimen integrated testing, which is 
specific gravity, creatinene, pH and temperature.
    The most serious problem we face is a quick-fix synthetic 
urine, which is a bottle of pre-mixed urine with all of the 
characteristics of natural urine. This product can be heated in 
a microwave or a heating pad supplied by the manufacturer, and 
this is the surest way to beat a drug test.
    Commercial products to beat drug tests can be classified 
under two broad categories. The first category is taking 
specific fluids or tablets, alum with plenty of water, to flush 
out drugs and metabolites. Many of these products can produce 
dilute urine and the concentration of drugs or metabolite can 
be reduced.
    When you do the drug testing, every drug has a sensitivity 
limitation, so drug testing that is negative doesn't mean that 
person never used a drug or no drug was present in the 
specimen. It can simply indicate that concentrations are too 
low to detect.
    There are several products available that can be purchased 
for less than $40, such as Absolute Detoxx XXL Drink, Carbo 
Drink and Ready Clean Drug Detox Drink. It is also possible to 
take a diuretic, such as hydrochlorothiazide, which can produce 
dilute urine, and this is another way of cheating a drug test.
    The laboratory regularly checks pH, temperature, specific 
gravity and creatinine, but the adulterants, such as Urine 
Luck, UrinAid, Klear and Whizzies cannot be detected by those 
tests, so, therefore, we do testing with the Intect 7 product, 
and there are three other products commercially available to 
test the presence of the adulterants.
    This is a good way of doing it. But, again, it is possible 
there are some other adulterants present, for example, diluted 
urine, which can still beat a drug test. And the biggest 
headache we have is the substitution urine or synthetic urine, 
which cannot be detected without direct supervision.
    Glutaraldehyde is another product sold as Urine Luck. It is 
very effective in beating amphetamine, methadone, opiate and 
cocaine tests.
    Hair and saliva specimens are alternatives to urine 
specimens for drug testing. Several products available for sale 
through the Internet that claim by washing hair with the 
shampoo can aid a person to beat a drug test.
    Saliva samples are also used for drug testing. A mouthwash 
is available commercially claiming that by rinsing the mouth 
twice with this product can help the person beat a saliva drug 
test. However, the effectiveness of such products are 
questionable. Some of the hair samples we tested in our 
laboratory is not effective in removing the drugs from hair, 
especially because we test the hair with hydrochloric acid to 
get the drug.
    In conclusion, adulteration imposes a new challenge in the 
testing for abuse of drugs. Routine specimen integrity testing 
is not adequate to detect the presence of more recently 
introduced alduterants, such as Urine Luck, Klear and Stealth, 
which may effectively mask a drug test, especially marijuana 
and cocaine metabolite. Intake of herbal cleansing agents and 
diuretics may also aid a person to beat a drug test by diluting 
urine with reduced concentrations of drug.
    It is better to have a more general acceptance for testing 
hair and saliva where substitution is not possible, but, in 
conclusion, the biggest headache from the side of the 
laboratory is the synthetic urine or substitute urine, which 
cannot be detected, unless the urine collection process is 
supervised.
    I thank you, Mr. Chairman and members of the committee, and 
I recommend that there should be Federal regulation to ban 
those products so we can have a safe work environment.
    Thank you.
    [The prepared statement of Amitava Dasgupta follows:]

  Prepared Statement of Amitava Dasgupta, Professor of Pathology and 
  Laboratory Medicine, University of Texas Health Sciences Center at 
                                Houston

    On September 15, 1986, President Regan issued Executive Order No 
12564 directing federal agencies to achieve a drug free work 
environment. Then the Department of Health and Human Services developed 
guidelines for drugs of abuse testing. In Military where the urine 
collection process is supervised, chances of an adulterated specimen 
are remote but in pre-employment testing where direct supervision of 
specimen collection is not practiced, a person may attempt to beat a 
drug test by adulterating the specimen.
    Reports of usage of household chemicals such as bleach, table salt, 
laundry detergent, toilet bowl cleaner, vinegar, lemon juice and Visine 
eye drop for adulterating urine specimens were published in medical 
literature as early as 1988. Most of these adulterants except Visine 
eye drop can be detected by routine specimen integrity tests. More 
recently a variety of products are commercially available which can be 
ordered either through the Internet sites (http://www.bdtzone.com, 
http://pass-drug-test.com etc) or toll free numbers. The Quick Fix 
Synthetic Urine is a bottle of premixed urine with all the 
characteristic of natural urine. The product can be heated in a 
microwave oven for up to 10 seconds in order to achieve a temperature 
between 90 to 1000F.
    Commercially available products to beat drug tests can be 
classified under two broad categories. The first category is taking 
specific fluids or tablets along with plenty of water to flush out 
drugs and metabolites. Many of these products can produce dilute urine 
and the concentrations of drugs or metabolites can be significantly 
reduced. Common products are Absolute Detox XXL drink, Absolute Carbo 
Drinks, Ready Clean Drug Detox Drink, Fast Flush Capsules and Ready 
Clean Gel Capsules. The second category of products available is in 
vitro urinary adulterants, which should be added to urine after 
collection in order to pass a drug test. Stealth, Klear, Clean ADD-IT-
ive, Urin-Aid and Urine Luck are urinary adulterants available through 
the Internet.
    A negative result for the presence of abused drugs in a urine 
specimen does not mean that no drug was present. It is also possible 
that the amount of drug was below the cut-off values used in the drug 
testing protocol. Diluting urine is a simple way to beat otherwise 
positive drug tests if the original concentrations of drugs in the 
urine are moderate. Use of flushing and detoxification is frequently 
advertised as an effective mean to pass drug tests. Published reports 
indicate that Naturally Clean Herbal tea, Golden Seal root and 
hydrochlorothiazide, a diuretic can cause false negative results due to 
diluted urine.
    Laboratories routinely checks pH, temperature, specific gravity and 
creatinine of urine to detect validity of specimens. Although 
adulteration with common household compounds can be detected by this 
mechanism, the presence of newer urine adulterants like Urine Luck, 
UrinAid, Klear and Whizzies can not be detected by urine specimen 
integrity test. Wu et al reported that the active ingredient of ``Urine 
Luck'' is 200 mmol/L of pyridinium chlorochromate (PCC). This product 
may help beat drug tests for marijuana and opiate. Other product 
``Klear'' and ``Whizzies'' contain potassium nitite and are effective 
in masking moderate concentrations of marijuana metabolites from 
detection by immunoassays or Gas chromatography/ mass spectrometry. 
Stealth consists of two vials, one containing a powder (peroxidase) and 
another vial containing a liquid (hydrogen peroxide). Both products 
should be added to the urine specimen. Stealth is capable of producing 
false negative results using immunoassay methods when marijuana 
metabolite, LSD and opiate (morphine) were present in the urine at 125-
150% of cutoff values.
    Glutaraldehyde has also been used as an adulterant to mask urine 
drug tests (15). This product is available under the trade name of 
``UrinAid''. Glutaraldehyde at a concentration of 0.75% volume can lead 
to false negative screening results for marijuana test using 
immunoassays. At higher concentrations (1-2%) amphetamine, methadone, 
benzodiazepine, opiate and cocaine metabolite tests are also affected.
    The presence of nitite, pyridinium chlorochromate and Stealth can 
be detected in adulterated urine specimen by various spot tests. 
Recently on-site adulterant detection devices are commercially 
available. Peace and Tarani evaluated performance of three on-site 
devices, Intect 7, MASK Ultrascreen and AdultaCheck 4 and concluded 
that Intect 7 was most sensitive and correctly identified all 
adulterants. AdultaCheck 4 did not detect Stealth, Urine Luck or 
Instant Clean ADD-it-ive.
    Hair and saliva specimens are alternatives to urine specimens for 
drug testing. Several products are available for sale through the 
Internet that claim by washing hair with these shampoos can aid a 
person to pass a drug test. Saliva samples are also used for drug 
testing. A mouthwash is available commercially claiming that by rinsing 
the mouth twice with this product can help a person to beat saliva 
based drug testing which is often a popular method of testing by 
insurance companies. However, effectiveness of such products in beating 
drug tests has not been clearly established by scientific research.
    In conclusion, adulterants impose a new challenge in the testing 
for abused drugs. Routine specimen integrity testing is not adequate to 
detect the presence of more recently introduced adulterants such as 
Urine Luck, Klear, Stealth which may effectively masking modest amounts 
of abused drugs from detection. Intake of herbal cleansing agents and 
diuretic may also aid a person to beat drug tests by producing diluted 
urine with reduced concentrations of drugs.

    Mr. Whitfield. Thank you.
    Ms. Kenney, you are recognized for 5 minutes.

             TESTIMONY OF JOSEPHINE ELIZABETH KENNEY

    Ms. Kenney. Good afternoon, Mr. Chairman, and members. 
Thank you for the opportunity to speak before the committee.
    The anti-drug-testing products available through the 
Internet and the detoxification products sold in retail stores 
I believe are undermining the efforts of the drug-and-alcohol-
testing service agent industry to assist employers in the 
effective administration of both regulated and non-regulated 
drug-free workplaces.
    In the early days of drug testing for me as a service 
provider, there were two types of results: negative and 
positive. That was the 1990's through the mid-1990's. Over 
time, adulterated, diluted, substituted, invalid and canceled 
tests became more prevalent. In fact, commencing in the 
nineties, the industry was essentially forced to change its 
nomenclature to reflect this new landscape. Positives and 
negatives became positives, negatives and non-negatives to 
reflect this change in our very landscape.
    The anti-drug-testing product industry is largely 
responsible for this change. It has become a significant 
obstacle to the efforts of the drug-and-alcohol-testing 
industry because it has added a level of complexity that 
resulted in and has presented additional distracting and 
unnecessary challenges for employers, third-party 
administrators, supporting employers, program administration, 
collectors, test technicians, laboratories, medical review 
officers and substance abuse professionals.
    Historically, there were only a few unusual specimens in 
the early days of drug testing, when I had my little company in 
1990 and on. Adulterations did occur. They were the exception, 
and although they were a challenge procedurally and 
administratively, they were not a huge problem 
programmatically.
    The true challenge for me as a service provider, 
businesswoman and attorney came with the advent of the 
adulterant nitrite, which results were believed to be the 
outcome of the availability of the product through the 
Internet. The nitrite product and products resulted in 
challenges to the integrity of the testing process that took 
much time and effort to overcome and actually threatened the 
very viability and integrity of my business operation.
    Since the advent of nitrite adulteration, the drug-and-
alcohol-testing industry has been under siege by an explosion 
of adulteration products marketed through the Internet, 
detoxification products that encourage over hydration and 
likely account for the increase in dilute specimens and 
appliances marketed for the specific purpose of assisting a 
cheating donor to carry into the collectionsite a substituted 
or clean specimen.
    To this date, 14 States have passed drug-test falsification 
legislation to address this threat to our effective workplace 
programs, and those States are Arkansas, Illinois, Kentucky, 
Louisiana, Maryland, Nebraska, New Jersey, North Carolina, 
Oklahoma, Oregon, Pennsylvania, South Carolina, Texas and 
Virginia. The scope of the prohibitions covered by these laws 
includes attempts to defraud a drug test, manufacturing 
products intended to defraud a drug test, marketing product 
intended to defraud a drug test, transporting products intended 
to defraud a drug test, and under the Illinois statute, 
manufacturing or providing synthetic human substances that 
defraud a drug test.
    These prohibitions are even generally considered criminal 
misdemeanors of various degrees. There are a couple of States 
that have them as class D felonies. They provide a range of 
fines from $500 to $5,000 and some provide for imprisonment. A 
couple of States have more serious penalties for a second 
offense, bringing the crime up to a felony rather than a 
misdemeanor and increasing the monetary penalty.
    In my opinion, the significant downside to these State 
legislative initiatives, although they certainly are to be 
commended, is, one, not enough States have passed legislation 
that addresses this national problem; and, two, the States do 
not include language that would enhance their effectiveness and 
enforceability.
    Specifically, a minority of 14 States cannot effectively 
overcome an issue that is national in scope, and the laws do 
not have reporting requirements or protection for collectors, 
test technicians, laboratories, medical review officers and 
employers or even service agents that discover and report that 
the law has been violated.
    In conclusion, 14 State laws that have inconsistent 
language and do not address critical reporting and enforcement 
issues do not adequately address a national objective as 
important as a drug-free workplace. Only a strong Federal law 
that addresses reporting and enforceability can do so by 
curtailing and, over time, overcoming the effects of the anti-
drug-testing industry that undercut and subvert the efforts of 
the drug-and-alcohol-testing industry to assist employers, both 
regulated and non-regulated, to maintain a drug-free workplace.
    Simply put, an industry that negatively impacts on the 
maintenance of a drug-free workplace must be derailed by 
effective Federal legislation.
    Thank you.
    [The prepared statement of Josephine Elizabeth Kenney 
follows:]

Prepared Statement of Josephine Elizabeth Kenney, Senior Vice President 
of Compliance, Employment Screening Services Division, First Advantage 
                              Corporation

                              INTRODUCTION

    The anti-drug testing products available through the Internet and 
the detoxification products sold in retail stores are undermining the 
efforts of the Drug and Alcohol Testing Industry Service Agents to 
assist Employers in the effective administration of both Regulated and 
Non-Regulated Drug Free Workplace Programs.

                           DISCUSSION/HISTORY

    In the early days of drug testing for me as a service provider 
there were two types of results: negative and positive (1990 mid 90's). 
Over time, adulterated, diluted, substituted, invalid and cancelled 
tests became more prevalent. In fact, commencing in the late 90's, the 
Industry was essentially forced to change its test result nomenclature 
over time to reflect the new landscape. Positives and negatives began 
being referred to as negatives and non-negatives to reflect the number 
of test results possible.
    The Anti-Drug Testing Product Industry is largely responsible for 
this change. It has become a significant obstacle to the efforts of the 
Drug and Alcohol Testing Industry because it has added a level of 
complexity that results and has presented additional, distracting and 
unnecessary challenges for Employers, Third Party Administrators 
supporting Employers' program administration, Collectors/Test 
Technicians, Laboratories, Medical Review Officers, and Substance Abuse 
Professionals.
    Historically, there were only a few unusual specimens in the early 
days of drug testing. Adulterations did indeed occur. These were the 
exception, and though a challenge, they were not a huge problem 
programmatically. The true challenge for me as a Service Provider, 
Business woman, and attorney came with the advent of the adulterant 
nitrite, which results were believed to be the outcome of the 
availability of the product through the Internet. The nitrite 
product(s) resulted in challenges to the integrity of the testing 
process that took much time and effort to overcome and actually 
threatened the very viability and integrity of my business operation. 
Since the advent of nitrite adulteration, the Drug and Alcohol Testing 
Industry has been under siege by an explosion of adulteration products 
marketed through the Internet, detoxification products that encourage 
over hydration and likely account for the increase in dilute specimens, 
and appliances marketed for the specific purpose of assisting a 
cheating donor to carry in to the collection sites a substituted 
``clean'' urinespecimen.
    To date, fourteen states have passed drug test falsification 
legislation to address this threat to effective Drug Free Workplace 
Programs.
    These states include: Arkansas, Illinois, Kentucky, Louisiana, 
Maryland, Nebraska, New Jersey, North Carolina, Oklahoma, Oregon, 
Pennsylvania, South Carolina, Texas, and Virginia.
    The scope of the prohibitions covered by these laws include 
attempts to defraud a drug test, manufacturing products intended to 
defraud a test, marketing products intended to defraud a test, 
transporting products intended to defraud a test and under the Illinois 
Statute, manufacturing or providing synthetic/human substances that 
defraud a drug test. These prohibitions are generally considered 
criminal misdemeanors of various degrees. They provide a range of fines 
from $500 to $5,000 and some provide for imprisonment. A couple of 
states have a more serious penalty structure for a second offense. 
These statutes designate the crime as a felony rather than a 
misdemeanor, increase the monetary penalty ($5,000 to $10,000) and 
increase the possibility of imprisonment (3 to 5 years).
    The significant downside to these state legislative initiatives are 
that not enough States have passed legislation that addresses this 
national problem and 2) the laws do not include language that would 
enhance their effectiveness and enforceablility. Specifically, a 
minority of fourteen states cannot effectively overcome an issue that 
is national in scope, and the laws do not include reporting 
requirements or protection for Collectors/Test Technicians, 
Laboratories, Medical Review Officers, and Employers that discover and 
report that the law has been violated.

                               CONCLUSION

    Fourteen state laws that have inconsistent language and do not 
address critical reporting and enforcement issues, do not adequately 
address a national objective as important as a Drug Free Workplace. 
Only a strong federal law that addresses reporting and enforceability 
can do so by curtailing and over time overcoming the efforts of the 
Anti-Drug Testing Industry that undercut and subvert the efforts of the 
Drug and Alcohol Testing Industry to assist Employers both Regulated 
and Non-Regulated to maintain a Drug Free Workplace. Simply put, an 
Industry that negatively impacts on the maintenance of a Drug Free 
Workplace must be derailed by effective federal legislation.

    Mr. Whitfield. Thank you. I want to thank the entire panel 
for your presentations. We appreciate that very much.
    Mr. Moore, you mentioned in your testimony I believe that 
you were proud of the fact that on certain Web sites now it 
appears that the manufacturer or the distributors of these 
products say that they cannot ship into Kentucky. Do most of 
these Web sites or the packaging of these products say they do 
not ship into particular States?
    I would ask anyone that question.
    Mr. Moore. Representative Whitfield, my experience is a 
minority of the sites list 14 States that have legislation. In 
Kentucky, we made the sale and distribution a felony, while the 
use is a misdemeanor. So I think that that felony designation 
also probably has some role to play.
    Mr. Whitfield. So anyone that ships one of these devices or 
agents into Kentucky would be liable for prosecution for a 
felony?
    Mr. Moore. Class D felony, yes, sir.
    Mr. Whitfield. Four or five of you specifically said we 
need Federal legislation. Is there anyone on this first panel 
that would disagree that we need Federal legislation?
    What about the Federal drug paraphernalia statute? Are any 
of you familiar with that at all?
    That was a bad question.
    Mr. Cramer. Although certainly I am not an authority on it, 
and we have had some internal debates in our office about 
whether or not the drug paraphernalia statute would apply to 
these devices, there is clear language in that statute that 
goes to products that conceal illegal drugs. But whether the 
intent of the statute covers this type of concealment, there is 
some question. So, arguably, it does apply to these products, 
but the fact that there have been no Federal prosecutions that 
we found on this indicates to us perhaps that the law enforcers 
see this differently.
    Mr. Whitfield. Okay. Then I think the consensus is that we 
probably need some Federal action.
    Dr. Sample and Dr. Captain and Mr. Sims and others that are 
involved in the testing, if you are not using a dilution 
processor, a cleansing processor, adulterated process in some 
way or a device, would there be certain drugs that your tests 
would not detect?
    Mr. Sample. I am sorry, could you repeat that question? You 
are asking if----
    Mr. Whitfield. Let's just say they are not using anything 
to conceal the use of an illegal drug; would there be some 
drugs, because of compounding or whatever, that you would not 
be able to detect in your testing process?
    Mr. Sample. If you are referring to substances that are 
added to a urine specimen as opposed to substitution?
    Mr. Whitfield. No, I am talking about I am on drugs, I am 
taking a lot of drugs, and I am coming to you for a test. Is 
there a possibility that your test would not detect particular 
drugs?
    Mr. Sample. Yes, there is certainly that possibility. If 
you recall the previous testimony there are administrative 
cutoffs that are applied and a negative drug test does not 
necessarily mean no drug is present. It could also mean that 
there are other drugs present that are not included in the 
panel. So negative does not necessarily mean drug free.
    Mr. Whitfield. I guess what I am getting at, the technology 
is such that you feel quite comfortable that you can detect the 
levels that would present a problem for an individual?
    Mr. Sample. Yes, we are very comfortable from a laboratory 
perspective that if a drug is present at or above the 
administrative cutoffs, that it can be properly detected and 
identified and confirmed above those administrative thresholds.
    Mr. Whitfield. And the three ways that you detect this is 
the use of hair, saliva and urine; is that correct?
    Mr. Sample. Those are the three main specimen types that 
would be used in workplace drug testing.
    Mr. Whitfield. What about blood tests?
    Mr. Sample. Blood tests are a possibility, although they 
have a much shorter window of detection than the other specimen 
types, and it is a much more invasive procedure since it 
involves sticking a needle in somebody's arm to collect the 
blood specimen.
    Mr. Dasgupta. If I could make one comment, there are 
certain drugs like gamma hydroxybutyrate acid, or GHB, we had 
several cases in our hospital, when a young woman was raped and 
the specimen was not adulterated, but it is not part of the 
panel. But, fortunately, the emergency room physician was very 
conscientious, and we sent it to the ARP laboratory in Salt 
Lake under the chain of custody, and they were able to detect 
that gamma hydroxybutyrate acid.
    There is a possibility that in the future the different 
diagnostic companies that manufacture those kits will sell the 
amino acid screen for GHB, and a test is already on the market 
for amino acids which can screen for it. So those are the 
problems.
    Mr. Whitfield. Well, I certainly agree with the panel, when 
you consider the criminal aspects of our legal system relating 
to the criminal part of our society, and then you consider the 
workforce, railroad employees, airlines, barge lines, school 
bus drivers, all of that, you find it difficult to think of any 
reason why we would allow these products to be in interstate 
commerce. So I want to thank the panel very much for your 
testimony today.
    I will yield back the balance of my time and, with that, 
recognize Mr. Stupak for his period of questioning.
    Mr. Stupak. Thank you, Mr. Chairman.
    Mr. Sims, when I gave my opening, we talked a little bit 
about drugs coming in this country, and we have been trying to 
cut down on Internet sales. Have you seen, in your position, 
increases in prescription drug abuse, even the schedule 1, the 
marijuana and the cocaine, drug testing?
    Mr. Sims. Mr. Stupak, thank you. It is my experience 
through my own corporation that I own that I have seen an 
increase of prescription drug abuse going up. I do see that. I 
can't correlate that back to Internet sales, for example, but I 
can see an increase in our own statistics internally within my 
own corporation that that is becoming a preferred drug.
    Right now, through our Federal workplace testing programs, 
we have narrowed that down to five illegal substances that we 
normally test for. Well, drug users, of course, of course are 
smart. They identify and they know those five drugs that are 
being tested for, and then they spawn off and move to something 
else.
    Mr. Stupak. Mr. Stephenson, do you want to add anything to 
that? As to prescription drugs, are you finding the same thing, 
after the five, they are spinning off to other areas?
    Mr. Stephenson. Yes, I think we can clearly say we have 
seen an increase in the presence of prescription drugs. What 
particular source they are from, we couldn't give you any 
guidance in that area.
    The primary thing with prescription drugs is that you have 
to focus the drug test on something you intend to try to stop. 
When we built the program, it was intentionally aimed at the 
illicit substances and not an attempt to interfere with the 
practice of medicine. So we steered away from some of the drugs 
that are now becoming more of a problem, like the prescription 
drugs, the pain killers and so on.
    We are clearly seeing them, and we are seeing them in the 
drug-test results that go to our medical review officers for 
review. We would be glad to give you any data we have from any 
of the surveys or any of the sources.
    Mr. Stupak. The slides we have here, we found from some of 
the areas coming into the country, that is just the tip of the 
iceberg then?
    Mr. Stephenson. Most likely, sir.
    Mr. Stupak. Thanks. I am looking at one of these ads here. 
We have been on the Internet in preparation of this hearing, 
our staff has gone through, and I am concerned as to whether 
any of you have done anything to try to address this.
    Here is an add for the original Whizzinator 5000. The 
reason why I bring this up is to highlight some of the things I 
said in the opening. Here you have MasterCard, Visa, Discover 
and--I can't read the other one--American Express. So that is 
one way you can do it.
    Then, of course, if you don't have credit, it says they 
will take a check or money order. This is Pub Technology. I 
think you mentioned Puck Technology.
    But here is the other part: Shipping, $7.50 priority mail; 
$12.50 FedEx second day; $27.50 FedEx priority overnight. Have 
any of you done any legislation, done anything to try to go 
after credit card companies or these carriers to try to crack 
down, and is that an approach you think we ought to look at 
federally?
    Ms. Reed. From Texas' perspective, I don't know that we 
have, in relation to the credit cards, the ability to go after 
them. We would have if we could have when we were investigating 
Puck Technology. But that was one of the bases for my 
recommendations, that we really need some Federal legislation.
    Mr. Stupak. Right. Well, you either got to dry up how they 
are putting the money source, if you will, call it a credit 
card, or the shipper, if they can't ship. Because I think any 
legislation we come up, a little bit like Mr. Stephenson says, 
they will just come up with a different way to get around this 
thing.
    So I am trying to figure out how you do it. It seems like 
most of them come through, like those slides we showed earlier, 
through the mail, either through FedEx, UPS, whatever it might 
be.
    I am just trying to figure out how do we stop the flow. It 
has to either be through the money source or the shipping 
source.
    Ms. Reed. I am a great believer that if you take the money 
away from them, it is going to discourage the flow. 
Consequently, if you place seizure upon it and you go after the 
corporations that sell it, you are going to decrease the 
incentive to do that. If you allow Federal agencies to go after 
the online providers, you are getting into the big area of 
concern.
    Mr. Stupak. Since 1998 and 1999, some of us have been 
trying to go after the internet sites, and unfortunately, we 
cannot even get the FDA to comment on our legislation. Mr. 
Walden has some excellent legislation he is working on this 
year. Maybe all of us can get together and put something 
together.
    One of my concerns is that any new legislation we write to 
curb the sale of these drug-masking products, many sites will 
simply go offshore, leave the United States and go elsewhere. 
Again, it brings up another complication. We see it with 
prescription drugs all the time.
    Do any of you have any concerns that these sites are 
already or soon will be operating from foreign locations? Have 
any of you checked that?
    No? I take it by the silence and your nodding, no.
    If you take a look, going back to this, again, even if you 
didn't use the credit card, you still have a check or money 
order, so there is still a way to get around the credit card. 
Any suggestions, any further suggestions? You all have written 
some good legislation. We have 14 States right now, but we have 
50 States plus our U.S. Territories and possessions. So there 
is more we have to do in this area, and we are struggling a 
little bit on how best do we approach this from a Federal point 
of view so we can really get at the source. Any comments?
    Mr. Sims?
    Mr. Sims. You know, one of the correlating things that we 
keep coming back to is the shipping, the shipping carriers, and 
that would be my best approach, if that is something that we 
need to look at. I mean, especially when you are opening up 
your photo that you had a moment ago of the U.S. Postal 
Service. Unfortunately, the logo under it, but it had all the 
illegal substances shipped in from other countries going 
through the U.S. mail. So I think that is maybe something we--a 
different approach we could start looking at, too.
    Mr. Whitfield. Mr. Moore, you mentioned Highway 64 there, 
and you said you stop there and see all the shippers, and we 
had DOT testify a little bit about it, Dr. Captain there. I 
find it ironic, I mean, FedEx must be one of these that tests, 
but they use FedEx to move it, to mask the drug testing.
    Mr. Moore. We have found UPS and FedEx to be very 
cooperative with us in being willing to look at tracking 
processes and those types of things as we have looked at 
methamphetamine and pseudoephedrine shipments, for example. But 
I also would echo the thought that in addition to looking at 
your criminal penalties, that you also look at civil forfeiture 
and civil penalties that allow you to be able to go after the 
money.
    Mr. Stupak. In my opening, we mentioned Google, that they 
had told us 2 years ago they had cracked down on these sites. I 
think most of you testified that those of you who have gone 
onsite, you have seen the explosions. We have tried to stay out 
of it federally, but I don't know what else we can do, other 
than actually go after these sites, try to shut it down, go 
after the shippers, go after the credit cards. I guess your 
last one is going after the monetary part, maybe RICO or 
something like that we are going to have to use.
    We are just about out of time. I still have a couple of 
minutes. I am sure this panel wants to leave, but we have votes 
on the floor. I am going to yield back right now. Thank you all 
for coming. It was really good testimony. Stay in touch with 
us, because we are going to have to do something and do it 
soon.
    Mr. Whitfield. Chairman Barton, we still have about 4 
minutes before a vote, if you would like to ask some questions.
    Chairman Barton. Thank you, Mr. Chairman. You may want to 
reset the clock. I want to thank this panel for being here. It 
is not normal that we would have that many people on one panel.
    As one of you said, I think the gentleman from Kentucky, 
people want to treat this as a skit on Saturday Night Live, and 
it is funny, some of the things that these products are called, 
but it is not funny that they are used to beat the system.
    My first question, generically, is there any legitimate use 
for any of these products? We are going to have the proprietors 
on the next panel, the manufacturers, and I am sure they will 
tell us there are. Those of you at this panel, is there any 
real reason to allow these products?
    Mr. Dasgupta. There is one product, Visine eye drops. 
Visine eye drops, if you add the whole bottle, can mask the 
drug-testing image, and that is the only legitimate product.
    Chairman Barton. You are saying Visine eyedrops have a 
legitimate use in your eyes, but not to mask the sample of the 
urine.
    Mr. Dasgupta. That is correct. You need the whole bottle to 
mask the drug test. It affects different amino acids 
differently, but, unfortunately, with the image technology, 
which is inside the amino acids, it can very effectively mask 
marijuana and coke metabolite. That is the only product. The 
rest, no.
    Chairman Barton. I think Mr. Stupak asked this question, or 
perhaps Mr. Whitfield did, but I just want to reiterate. Do you 
all support a Federal law that would set Federal standards? Is 
there anybody that thinks this should be a State issue? We do 
have 14 States that have passed laws. But this group, you all 
support Federal legislation?
    Let the record show their heads are all nodding yes. That 
is nine yesses and no noes on that.
    Would it be possible to make it illegal to post these 
products on a Web site, to make the act of posting illegal? Our 
district attorney from Texas?
    Ms. Reed. I see all sorts of jurisdictional issues for the 
Federal Government, as well as perhaps free speech issues.
    Chairman Barton. Right now, the products are not illegal. 
First, we have to make them illegal. Do you have a 
constitutional right to free speech to advertise an illegal 
product?
    Ms. Reed. I don't know that you do, no.
    Chairman Barton. I don't think you let somebody advertise 
cocaine.
    Ms. Reed. Right. But first, if you make them illegal, then 
you have accomplished what you need to. Then you could do the 
posting, and the transfer through the mails. The banking 
industry is probably going to tell you, we don't know what the 
check is for, so that is going to be difficult, but you could 
get to the users or the people using these systems over which 
you have the jurisdiction.
    Chairman Barton. Is this a growing industry? In the absence 
of Federal legislation, would this industry continue to grow? 
The fact of doing this hearing is going to publicize to people 
that didn't even know these products exist, that there is a way 
to beat the system.
    Ms. Reed. With the advent of the Internet, you have to have 
your head in the sand to not know that that is the biggest area 
of distribution and advertising and product marketing that you 
have got for people who want to, particularly when they want to 
do something that they would rather other people not know 
about. So you don't want to walk into your local K-Mart or 
something and buy a Whizzinator, because it is pretty obvious, 
but you might order it.
    Mr. Sample. This is indeed a growing problem and a 
disturbing problem. You have heard testimony about the 
evolution of these products. It used to be adulterated; now it 
is invalid. Some of those products that are added to a urine 
sample are now undetectable, and the worst is these devices. It 
is going to continue to evolve and grow and change and get to 
the point where laboratories and drug-testing programs may not 
be able to detect the use of these products.
    Ms. Kenney. Yes, you know, I see this as a marketplace 
issue in part. If you had strong Federal legislation that got 
at this supply and-demand issue that we have here, and that 
legislation required reporting of the use of these products in 
workplace drug testing, and on the front end, you made them 
illegal and provided sanctions at the front end for the 
individuals and companies that distribute them.
    Chairman Barton. Who would you require to report it? The 
tester?
    Ms. Kenney. Anyone involved in drug testing, the employer, 
the service agent, the medical review officer.
    Chairman Barton. If they catch one of these, they report 
it.
    Ms. Kenney. If they become aware that adulterant was used, 
informed by the laboratory, I believe that a reporting 
structure that is required, mandatory, would really support 
this initiative.
    Chairman Barton. Would you make it illegal, to go back to 
our Commonwealth of Kentucky and our district attorney, would 
you make it illegal to use a device? If you are caught using 
one, would you double the penalty, if they are already 
convicted and on parole? Would that be a deterrent to using it?
    Mr. Moore. I certainly would. The issue that many States 
face is that, with growing confinement costs, the legislatures 
are anxious to keep the users at a misdemeanor level so that 
the population in the jails does not continue to explode. But 
the reality is that those same economic factors, just as we are 
here now, there is a hearing in my State where we are 
discussing the number of people that are in the penitentiary 
system, and yet we are relying on drug testing to tell us that 
we are policing the behavior of those individuals when we have 
them in community-based settings.
    So, yes, Representative, it is a growing problem, and it is 
going to continue to be a growing problem, because when we 
double the number of people we have out on conditional release, 
those people that are on conditional release are going to be 
finding a way to beat the system so they can use their 
narcotics and stay out.
    Chairman Barton. I am told we have a vote on the floor that 
we need to adjourn to go do, so I am going to have to yield 
back. But I am going to have some written questions about hair 
testing and saliva testing and what we need to do to try to 
help in that area, too. Again, we will try to legislate on this 
this year. Thank you all.
    Mr. Whitfield. Thank you, Mr. Chairman.
    I want to thank the panel. What we are going to do, we have 
two votes on the floor. We are going to recess until about 10 
minutes until 12, so that will give everyone an opportunity to 
relax and contemplate this. We will be back at 10 minutes to 
12. We will recess until then.
    [Brief recess.]
    Mr. Whitfield. If we could reconvene the first panel, I 
would appreciate it. Before I recognize Dr. Burgess for his 10 
minutes of questions, I think that Mr. Cramer wanted to respond 
to Chairman Barton's questions, so I will recognize Mr. Cramer.
    Mr. Cramer. Regardless of whether the products that we're 
talking about here today have legitimate purposes and uses, the 
fact is that our work showed that these products are being 
marketed for illegitimate uses. These Web sites, there are 
scores of them out there, and they are clearly targeting their 
products to people who use drugs illegally and want to pass a 
drug test. And it is that intended use of these products that 
legislation can address. It's like the drug paraphernalia 
statute. If you have a hypodermic needle and the nurse is using 
to give it a patient medication, that is perfectly appropriate 
and legal.
    However, if it's being used by a drug addict to inject 
heroin, that is a possession which is illegal and the same kind 
of analysis could be applied to these kinds of products.
    Mr. Whitfield. Well, thank you, Mr. Cramer, for clarifying 
that. And at this point, I would recognize Dr. Burgess for 10 
minutes.
    Mr. Burgess. Thank you, Mr. Chairman. Mr. Cramer, just to 
go along that same line, what is the possible potential use of 
the product that we were told is called the Whizzinator? 
Doesn't seem like it has any other use other than to avoid 
detection on a drug test.
    Mr. Cramer. It would seem to me that you're right on that.
    Mr. Burgess. And I apologize to the panel for missing some 
of the testimony. We typically have three or four things 
scheduled at one time. But Dr. Captain, thank you for being 
here this morning. The committee would like your help and 
perspective on statements made by Mr. Robert Baraona, the 
attorney for Mr. Matt Stephens of spectrum laboratories. Mr. 
Baraona made these statements on behalf of Mr. Stephens in his 
capacity as a representative for spectrum laboratories on April 
25 in an e-mail with confirmation by letter.
    Mr. Baraona discusses personal and private matters that are 
being invaded by technological advances. He states ``previously 
innocuous or normal acts can now be used by employers, 
insurance companies or other investigators in order to gain a 
wealth of information about a person's day-to-day activities.'' 
Are any of the things that you are testing for in an employment 
drug test innocuous or normal acts?
    Ms. Captain. The employee drug tests are designed to detect 
the use of illegal substances or the inappropriate use of legal 
substances. And in my opinion, that is neither normal nor 
innocuous.
    Mr. Burgess. Mr. Baraona further infers that because your 
analysis to detect drug metabolites and not the drug itself, 
the urine drug test is, therefore, by definition, inaccurate.
    Ms. Captain. There's never been a study that someone would 
have drug metabolite in their body fluid of any type without 
having ingested the drug.
    Mr. Burgess. So just because a urine test looks for 
metabolites, it doesn't make it an unreliable study?
    Ms. Captain. Correct. The way human physiology works, 
almost nothing that you ingest directly will leave your body in 
the same form.
    Mr. Burgess. Well, Mr. Baraona was correct when he stated 
the urine test can detect substances that were ingested in the 
past. However, he stated the drug metabolites can be found in 
the urine weeks or months later, is that correct, for the 
common drugs tested? Is what the look-back ability of the urine 
test?
    Ms. Captain. That is most particularly true for marijuana. 
If someone is a heavy regular or chronic binge smoker, the 
metabolite of marijuana can be taken up by the fat cells and 
then released back into the bloodstream and produce detectable 
levels in the urine for a long period of time, weeks or 
possibly months. Most of the other drugs are very water soluble 
so they are go not going to persist in the system for very 
long. In terms of being able to determine from a urine drug 
test whether somebody had a recent use of marijuana or whether 
they were just a really heavy smoker and quit 30 days ago, you 
can't determine that from a urine test.
    Mr. Burgess. Would second-hand smoke ever play a role in 
that if someone were in a household where marijuana was smoked? 
Would the metabolite be detectable in that otherwise innocent 
person's urine?
    Ms. Captain. There are two answers to that question. Yes. 
If someone is subjected to side-streamed smoke, you can, 
through the use of very good tests, detect the presence of 
marijuana metabolite. However, the DOT set the screening cutoff 
level and most employers follow that same administrative cutoff 
level at a high enough rate that side streamed-smoke should 
never make you positive for marijuana.
    Mr. Burgess. And as a complete aside, because of the high 
lipid solubility of the active ingredient in marijuana smoke, 
there is, perhaps, object lesson in there for people who 
believe that casual use of marijuana renders them fully capable 
to perform their functions the following day or days after 
ingesting that compound, and perhaps we ought to make that 
information more readily available to our grade school and high 
school populations, because they are certainly exposed to the 
contrary argument that you get high once in awhile, it's 
nobody's business but your own. Mr. Baraona is concerned about 
human errors and specimen handling protocol and chain-of-
custody problems. Is that addressed in both the Federal and 
general workplace drug testing?
    Ms. Captain. Absolutely. When a donor arrives for a 
collection, there is a very standard chain-of-custody form and 
the form is used by all tests regulated by the Department of 
Transportation. Most employers also use what we call a look 
alike form and it is nearly identical to the DOT form. It is a 
multi-paged carbonless form. Every page is bar coded. And the 
labels that are used to seal and ship the specimens are bar 
coded. And during the collection process we say, here, look at 
your paperwork and the numbers on the bar code match up with 
the shipping labels. Photo identification is required. And the 
photo identification must be government issued or it can be 
employer issued if it's for that particular company.
    Copies of the chain of custody are distributed to the lab, 
the employer, the donor, the collector and the medical review 
officer. The specimen is shipped. It's prepared and packaged in 
front of the donor, and it's sealed with a tamper-evident 
label, and it's shipped in this tamper-evident package. When 
the package is received at the lab, the package is examined by 
the laboratory to make sure there have been no attempts to 
tamper with the paperwork and the specimens are double checked 
to match up. It goes through the screening process. When the 
results then come to a medical review office like mine, the 
first thing we do when we get a result on a lab form is we take 
our chain of custody and we make sure that the ID numbers of 
the donor match up. It is usually their Social Security number, 
but can be any type of ID. And also the specimen number matches 
up.
    So we check the lab result to make sure that the specimen 
number matches up with the chain of custody form. And we 
actually have two people that check that before we interview 
the donor. Then during the donor interview, if the donor has 
objections or questions or wants to rebut the claim, then we 
also have a third check before any result goes out to the 
employer. So along the way, there are many, many steps that 
protect the integrity of the chain of custody.
    Mr. Burgess. And render the possibility of a false positive 
that much lower. Well, again, the lawyer expressed concern 
about not knowing what the actual starting substance of the 
metabolites were. Is this a problem?
    Ms. Captain. The metabolites we test for have a known 
starting point. And that's all I can say. We know if you have 
this metabolite, you ingested this. We don't know of any other 
substances that look like it, sound like it. For instance, we 
frequently get the claim they went to the dentist and had 
Ladacaine given to them, and that's why their drug test is 
positive for cocaine. It doesn't work that way in human 
physiology and biochemistry.
    Mr. Burgess. Mr. Baraona states that detoxification 
products offer protection to individuals concerned with the 
shortcomings of urinalysis and similar tests and another quote, 
they afford a level of privacy. What protection do 
detoxification products offer individuals?
    Ms. Captain. Are you asking do the products work or are 
they protecting a legitimate right to privacy?
    Mr. Burgess. Presumably protecting a legitimate right to 
privacy or legitimate right to cleanse oneself of toxins?
    Ms. Captain. Again going back to the fact that employment 
testing is really trying to detect the use of illegal 
substances or inappropriate use of legal substances, I don't 
think they have any place in that.
    Mr. Burgess. And I would agree with you having spent some 
time on a medical staff myself, I know we have had physicians 
who have had problems and have gone through rehabilitation and 
have to submit specimens. And the mere thought that someone 
could be trying to avoid that process, no pun intended, is 
absolutely frightening that you could be across the table from 
another physician in the middle of the night doing an emergency 
operation and helping someone who, in fact, was impaired and 
that impairment was not just slipping through the cracks, but 
actively being manipulated so that that person could continue 
to practice. It almost seems like premeditated assault or 
murder.
    So thank you very much for your adding to our knowledge 
this morning, Mr. Chairman. Mr. Dasgupta, let me ask you a 
question because you brought up the issue of Rohypnol and GABA 
and the possibility that these things might be missed. Is that 
something that we need to look at?
    Mr. Dasgupta. Yes. I think we have several tests at our 
hospital where if the emergency room physician was not very 
conscientious, we will have missed a criminal activity because 
a woman was raped, gamma hydroxybutyrate can be very easily 
prepared from gamma hydroxybutyrolactone, which is not an 
illegal compound. And it can be passed in a drink and it has no 
test. It puts the victim to deep sleep. And if she is raped, 
she will not have any memory of the situation. There is no sign 
of struggle or any other circumstantial evidence. GHB is a 
designer drug and illegal drug. And it will be nice to change 
the rules or something that it cannot be sold. Rohypnol is that 
benzodiazepine is a hypnotic medication to help people go to 
sleep. It is legal in Europe and illegal in U.S. because of the 
report of using it as a date rape drug. Unfortunately it is 
available in the underground market. And again, those drugs can 
be purchased from Europe and can be brought illegally to this 
country, because we have several cases of Rohypnol abuse.
    Mr. Burgess. Are you aware of anyone buying Rohypnol over 
the Internet and having it shipped to this country?
    Mr. Dasgupta. I have not tried it by myself, but I know it 
is available and they can ship it to you from Mexico. And one 
thing which is interesting when I was doing my research on 
catching those adulterants, Texas did not pass a law so I can 
buy this product from the spectrum laboratory. But when the 
State of Texas passed the law, I can no longer buy the product. 
So I am if there is legislation, it is definitely going to 
help.
    Mr. Burgess. Thank you, Mr. Chairman.
    Mr. Whitfield. At this time, I recognize the vice chairman 
of this committee for 5 minutes--to 10 minutes of questions.
    Mr. Walden. Thank you very much, Mr. Chairman I appreciate 
you holding this hearing on this very important issue. Having 
been on this subcommittee for a couple of years and listening 
to what goes on in America, I shouldn't be surprised by some of 
the what I would call nefarious activities and this ranks right 
up there. We have had hearings on ephedra and have had 
witnesses testify before the committee, who, it would seem to 
me, had both convictions for fraud as well as nothing more than 
a high school diploma, which isn't necessarily bad unless you 
are the one creating the formula that goes into this stuff and 
is then marketed to kids who take it in overdose amounts and 
die. And we had testimony to that effect. And I know that one 
of the witnesses we subpoenaed, Michael Fichera, owner of 
Health Choice in New York, was quoted yesterday as saying, why 
shouldn't he be allowed to detoxify your body if you make a 
mistake.
    As a parent of a teenager and others, I just can't imagine 
how you sleep at night thinking you may empower somebody to 
deal with their ``mistake'' and end up driving a dump truck or 
some other heavy piece of equipment, maybe a school bus, or be 
in the operating room and wreak absolute havoc on individuals, 
and if not certain death.
    The products that this subcommittee is investigating have 
no legitimate purpose from my perspective, other than to 
deceive and defraud. I think you all made that pretty clear as 
well. In my home State of Oregon, it's illegal to possess, sell 
or transport products designed to produce these false drug 
tests. But I agree, a State-by-State approach isn't going to 
get it done, because it just moves to another State. In fact, 
in Oregon, you can face up to a year in prison. I have been 
working on legislation with my colleague from Florida, Mr. 
Davis, called the Safe on-line Drug Act, H.R. 1808. This is 
trying to get at the problem with Internet sales of various 
things, various pharmaceuticals, certainly, and just today has 
been endorsed by both the chain pharmacy drug stores as well as 
the National Boards of Pharmacy.
    What we are trying to do is get at the issue of the money, 
if you get to the credit card companies and preclude the sale 
if these legitimate sites, then you can begin to attack this at 
least in a better manner than we are today. I don't have any 
questions. I think you have been eloquent in your testimony and 
certainly enlightened this committee and our staffs about the 
problem you are trying to address everyday. And hopefully we 
will see legislation emerge that will treat this as a national 
problem that it indeed is.
    I am just amazed at the amount of money as an employer that 
is spent by my colleagues who have businesses to make sure 
everything is on the up and up, and then you have got these 
jokers making a fortune trying to defraud and deceive.
    Mr. Whitfield. Mr. Walden, thank you very much. And I want 
to thank the panel for being with us this morning. We genuinely 
appreciate your testimony and you have helped us make some 
decisions about some Federal legislation we may be pursuing. I 
would also ask Mr. Cramer and Ms. Reed that one of our panel 
members, Ms. Blackburn, was unable to come back, but she does 
have three or four questions that she wants to submit to you 
all in writing. And we will make sure you get these and would 
appreciate you responding to those in writing. And we will keep 
the record open for 30 days for that purpose. So with that, we 
will dismiss this panel and once again thank you for being with 
us this morning.
    Now we will call the second panel, which consists of one 
person and that is Mr. Josiah Wayne Smith. Mr. Smith is at the 
Eastern Correctional Institution in Maryland, and he has agreed 
to join us by teleconference this morning. And so what I'm 
going to do is, first of all, Mr. Smith, can you hear me okay.

    TESTIMONY OF JOSIAH WAYNE SMITH, EASTERN CORRECTIONAL 
INSTITUTION-ANNEX
    Mr. Smith. Yes, sir.
    Mr. Whitfield. I want to thank you so much for agreeing to 
testify before the committee this morning. We genuinely 
appreciate your cooperation. And I will tell you that this is a 
committee, it is the Oversight Investigations Subcommittee of 
Energy and Commerce, and this is an investigative hearing. And 
when we do this, we have the practice of taking testimony under 
oath. And do you have any objection to testifying under oath 
this morning?
    Mr. Smith. No, Your Honor.
    Mr. Whitfield. The Chair advised you that under the rules 
of the House and the rules of the committee, you are also 
entitled to be advised by legal counsel if you so wish. Do you 
desire to be advised by legal counsel today?
    Mr. Smith. No, sir.
    Mr. Whitfield. Mr. Smith, if you would please rise and 
raise your right hand, I will swear you in.
    [Witness sworn.]
    Mr. Whitfield. Mr. Smith, thank you so much, you are now 
under oath. And it is my understanding that you do reside in 
the Eastern Correctional Institution Annex in Maryland, and you 
are here today by video conference. It is my understanding you 
do not have a prepared opening statement but that you have 
agreed to answer some questions for us, is that correct?
    Mr. Smith. Yes.
    Mr. Whitfield. Mr. Smith, you started using illegal drugs 
at age 13 or 14, is that correct?
    Mr. Smith. Yes.
    Mr. Whitfield. And how did you pay for those drugs at that 
young age?
    Mr. Smith. I was engaged as a farmhand and a newspaper boy. 
That is when I was in school at 13, 14 years old.
    Mr. Whitfield. And you were using LSD, PCP and marijuana I 
believe, is that correct?
    Mr. Smith. Yes.
    Mr. Whitfield. You went on later and used other drugs, more 
powerful drugs, is that correct?
    Mr. Smith. Yes.
    Mr. Whitfield. Powder cocaine, rock cocaine and a little 
heroin, is that correct?
    Mr. Smith. Yes, sir.
    Mr. Whitfield. How old are you now?
    Mr. Smith. 31.
    Mr. Whitfield. In your 20's, how did you pay for these 
drugs that you were using?
    Mr. Smith. Mostly from illegal means. I hustled and 
whatever. Made some money, stole stuff, sold it. I realized--
sometimes I worked two jobs.
    Mr. Whitfield. I understand you worked at Sam's Club, you 
unloaded tractors and did farm work. Did you ever have to pass 
a drug test or take a urine test for any of these jobs?
    Mr. Smith. Yes, sir. I had to take a urine test at Wal-Mart 
to get employed at Wal-Mart. I had to take a drug test to be an 
employee at a mattress company.
    Mr. Whitfield. If you were on drugs, how did you pass these 
tests?
    Mr. Smith. Through a means of--I bought a test clean 
product at the GNC. It's an herbal tea that you mix up in a 
gallon of water and drink 3 or 4 hours ahead of time. Then it 
flushes your system out.
    Mr. Whitfield. So there were products like test clean and 
golden seal and things like that in herbal teas, is that 
correct?
    Mr. Smith. Yes, your Honor.
    Mr. Whitfield. Did the person at the counter understand why 
you were buying this and give you instructions of how to 
effectively use the product?
    Mr. Smith. That's right. They also come with instructions.
    Mr. Whitfield. So you simply read them?
    Mr. Smith. Yes.
    Mr. Whitfield. Did the products work?
    Mr. Smith. Yes. As long as you followed the directions, 
they worked perfectly.
    Mr. Whitfield. So you took the test and passed the test and 
continued working and you continued to use drugs, is that 
correct?
    Mr. Smith. Yes, sir.
    Mr. Whitfield. Now did you have any difficulty finding 
these products?
    Mr. Smith. No. You can find these products in any of the 
health stores. You can find them in the Internet and also in 
the head shops.
    Mr. Whitfield. Now did you know many people other than 
yourself who used these products?
    Mr. Smith. Yeah. Yeah, that's how I learned about it, from 
other people.
    Mr. Whitfield. There are a lot of people out there using 
them, I take it?
    Mr. Smith. Yeah. I believe so.
    Mr. Whitfield. Do you feel like your drug use contributed 
to your criminal record?
    Mr. Smith. Yes, sir.
    Mr. Whitfield. And right now, why are you in the 
correctional institution in Maryland?
    Mr. Smith. I'm here for altering a drug test that was a 
part of my probational period.
    Mr. Whitfield. So you were in prison and then you were on 
probation and then you went in for a drug test, and did you get 
caught cheating on the drug test?
    Mr. Smith. Well, I wasn't in a prison. I was on probation 
for 2-1/2 years. And during that time, yeah, I was getting 
tested for urinalysis, drugs and alcohol and due to altering 
one of the tests, it sent me to prison, yeah, as part of my 
violation.
    Mr. Whitfield. So were you using a particular device to 
pass the drug test on that occasion?
    Mr. Smith. No. That particular time, I give somebody else's 
urine and because the thermal tape on it didn't read 98 
degrees, he could tell it wasn't my urine.
    Mr. Whitfield. So why didn't you just buy a product instead 
of using someone else's urine?
    Mr. Smith. I was at work at the time and because of the 
directions, like I explained the directions, you have to use 
the test clean 3 to 4 hours and I was at work. I didn't have 
time to take the product and then give the urinalysis.
    Mr. Whitfield. Well, Mr. Smith, can you think of any reason 
why companies would be manufacturing these kinds of products 
and providing these kinds of substances other than to help 
people pass a drug test? Can you think of any other legitimate 
use for any of these products?
    Mr. Smith. I gave that some thought. I mean the only thing 
I can think of would be somebody that would have a liver 
disorder or kidney disorder where they would need something to 
help flush out the impurities, other than that, I could see no 
use for it.
    Mr. Whitfield. Well, listen, I want to thank you for taking 
time to be with us this morning. Is there anyone else on the 
panel that would like to ask Mr. Smith a question? Mr. Stupak 
of Michigan, who is the ranking minority member, would like to 
ask you some questions, Mr. Smith.
    Mr. Stupak. You said you took a drug test when you applied 
for employment at Wal-Mart Corporation?
    Mr. Smith. Yes, sir.
    Mr. Stupak. Did you receive that job at Wal-Mart?
    Mr. Smith. Yes, I did.
    Mr. Stupak. After you were an employee, did you do any 
follow-up drug testing?
    Mr. Smith. No. I wasn't there long enough.
    Mr. Stupak. For your probation officer, the other time, you 
would have to do the drug testing?
    Mr. Smith. Yes.
    Mr. Stupak. Any other employment opportunities where you 
took drug testing where it was required for part of the job?
    Mr. Smith. Yes, the mattress store.
    Mr. Stupak. Why would the mattress company require you to 
have a drug test?
    Mr. Smith. Insurance purposes. Everybody employed must pass 
a urinalysis before being employed and starting because of 
workmen's comp to keep their workplace drug and alcohol free.
    Mr. Stupak. Did you deliver goods like mattresses at this 
mattress place? Were you a driver?
    Mr. Smith. No. I ran a gun. I actually built them.
    Mr. Stupak. This was manufacturing, not delivery?
    Mr. Smith. Yes.
    Mr. Stupak. Besides the herbal tea, did you ever buy any 
other drug masking agents from GNC, the store?
    Mr. Smith. No.
    Mr. Stupak. Where did you buy other masking agents other 
than GNC? Did you get them from the Internet? How did you 
obtain them?
    Mr. Smith. The only way I obtained them was over the 
counter in the GNC stores. I know that they're available in 
other places such as the head shops and Internet. I didn't go 
that route, I went directly to the store.
    Mr. Stupak. So at GNC, the only thing you ever bought there 
to flush out your system was herbal tea?
    Mr. Smith. Yes, sir.
    Mr. Stupak. No other agents or anything to mask the drugs?
    Mr. Smith. No.
    Mr. Stupak. I have no further questions. Thank you for your 
answers.
    Mr. Whitfield. Anyone else on the panel that would like to 
ask the witness a question? Mr. Smith, I want to thank you so 
much for joining us this afternoon. We are in the process of 
trying to make some decisions about Federal legislation to help 
address this issue and your testimony has helped us a great 
deal and thank you for cooperating with us very much.
    Mr. Smith. Yes, sir.
    Mr. Whitfield. At this time, we will call the fourth 
panel--sorry, the third panel. Mr. Dennis Catalano, Mr. Michael 
Fichera and Mr. Matt Stephens, we'd ask you to come to the 
witness table. Mr. Catalano is an owner of Puck Technology. 
Michael Fichera is the owner of Health Choice of New York, and 
Matt Stephens is the owner of Spectrum Laboratories. They are 
all with us today pursuant to a subpoena. On May 4, 2005, the 
committee invited these three individuals to voluntarily 
testify at this hearing, but they declined. On May 11, 2005, 
the subcommittee authorized subpoenas to be issued to compel 
their appearance which were subsequently issued by Chairman 
Barton and served. My understanding is that these witnesses 
will rely on their constitutional right not to testify at 
today's hearing. I believe that this privilege, which is the 
only basis upon which a witness may refuse to cooperate with an 
inquiry by the House, the people's House of Representatives, 
should be personally exercised before the members as we have 
done in the past.
    That is why we have insisted on the appearances of Mr. 
Catalano, Mr. Fichera and Mr. Stephens today. Given the 
importance of their testimony to this subcommittee's fact 
finding processes, I would hope that these individuals might 
reconsider their decision to invoke their fifth amendment 
rights today and decide to cooperate with this critically 
important investigation. Mr. Catalano, Mr. Fichera and Mr. 
Stephens, you are aware that this subcommittee is holding an 
investigation hearing and in doing so, we have had the practice 
of taking testimony under oath.

TESTIMONY OF DENNIS CATALANO, PRESIDENT, PUCK TECHNOLOGY; MATT 
STEPHENS, PRESIDENT, SPECTRUM LABS; AND MICHAEL FICHERA, HEALTH 
                    CHOICE OF NEW YORK, INC.

    Mr. Whitfield. Do any of you have any objection to 
testifying under oath this afternoon? The Chair also advises 
you that under the rules of the House and the rules of the 
committee, you are entitled to be advised by counsel. Do any of 
you desire to be advised by counsel during your testimony 
today?
    Mr. Catalano. I do.
    Mr. Whitfield. In that case, would each of you please 
identify your counsel for the record.
    Mr. Catalano. My counsel is Barry Boss.
    Mr. Fichera. Gary Orseck.
    Mr. Stephens. Robert Baraona.
    Mr. Whitfield. Then at this time, what I would ask the 
witnesses to do, I want you to stand with me and I want to 
swear you in for testimony.
    [witnesses sworn.]
    Mr. Whitfield. Thank you. You are now under oath and you 
may give a 5-minute oral statement for the record if you choose 
to. Mr. Catalano, do you have a statement?
    Mr. Catalano. I do not.
    Mr. Fichera. I do not.
    Mr. Stephens. No statement.
    Mr. Whitfield. Very well. The chairman will recognize 
himself for questioning of the witnesses. I will start with you 
Mr. Catalano. What is the intended use of your company's 
products and does your company market these products for the 
purpose of subverting lawful drug testing programs?
    Mr. Catalano. On the advice of my attorney, I respectfully 
decline to answer and invoke my fifth amendment right.
    Mr. Whitfield. Let me be clear, Mr. Catalano. Are you 
refusing to answer the questions on the basis of the 
protections afforded to you under the fifth amendment of the 
U.S. Constitution?
    Mr. Catalano. I am.
    Mr. Whitfield. Mr. Catalano, will you invoke your fifth 
amendment rights in response to all the questions we may ask 
you today?
    Mr. Catalano. I will.
    Mr. Whitfield. Then you are excused from the witness table 
at this time, but I would like to advise you that you do remain 
subject to the processes of the committee and that if the 
committee's needs are such, we may recall you at a later time.
    Chairman Barton. Parliamentary inquiry, I understand the 
witness's right to plead the fifth amendment. I accept that and 
respect that. But we still are going to ask for records and 
documentation. And at some point in time, they have to comply 
with that, is that not correct?
    Mr. Whitfield. That is correct, Mr. Chairman. We have 
submitted rather lengthy requests to them in writing and we do 
expect them to provide that documentation for the record. And 
it is my understanding that they have provided most of that.
    Mr. Barton. I don't want them to walk out of here thinking 
they can just come and exercise their constitutional right, 
which they have every right to do, and not have to--we will get 
the facts. Just understand that.
    Mr. Whitfield. Well, I'm glad you pointed that out, Mr. 
Chairman, and we appreciate you making that point.
    Mr. Stupak. Mr. Chairman, point of order, also those long 
lines we will do follow-up questions for documentation that we 
would like to see. So you could expect further questions from 
this committee to these gentlemen.
    Mr. Whitfield. Thank you, Mr. Chairman. I think all of you 
do understand that, of course and we have submitted questions 
in writing. We may be submitting more questions in writing. You 
are free to go.
    Mr. Fichera, what is the intended use of your company's 
products and does your company market these products for the 
purpose of subverting lawful drug testing programs?
    Mr. Fichera. On the advice of council, I respectfully 
decline to answer based upon the protections afforded me under 
the Constitution.
    Mr. Whitfield. Are you refusing to answer the questions on 
the basis of the protections afforded to you under the fifth 
amendment of the Constitution?
    Mr. Fichera. Yes, I am.
    Mr. Whitfield. Will you invoke that fifth amendment right 
in all questions we may ask you today?
    Mr. Fichera. Yes, I will.
    Mr. Whitfield. You are also excused from the witness table 
at this time, but I advise that you do remain subject to the 
process of the committee and that if the committee's needs are 
such, then we may recall you. So you are also free to go. My 
next question is for Mr. Stephens. What is the intended use of 
your company's products and does your company market these 
products for the purpose of subverting lawful drug testing 
programs?
    Mr. Stephens. Under the advice of counsel, I respectfully 
decline to comment on that question.
    Mr. Whitfield. So you are refusing to answer the question 
on the basis of the protections afforded to you under the fifth 
amendment of the Constitution?
    Mr. Stephens. That is correct.
    Mr. Whitfield. Do you intend to invoke the fifth amendment 
right in response to any questions we may ask you today?
    Mr. Stephens. That is also correct.
    Mr. Whitfield. You are excused from the witness table at 
this time, but I advise you that you remain subject to the 
process of the committee and that if the committee's needs are 
such, then we may recall you at some future time.
    Mr. Stephens. Thank you.
    Mr. Whitfield. That will conclude our hearing for today. We 
are disappointed that the owners of three of these 
manufacturing companies that produce these products have 
refused to answer questions and have invoked their fifth 
amendment protections. We do intend to vigorously pursue this 
issue. And I expect that you can see the full Energy and 
Commerce Committee moving forward with legislation on this in 
the very near future. Thank you for your time. And thank Mr. 
Stupak and Dr. Burgess and the other committee members for 
their assistance today in this important hearing. And with 
that, this hearing is adjourned.
    [Whereupon, at 12:35 p.m., the subcommittee was adjourned.]