[Congressional Record Volume 149, Number 30 (Tuesday, February 25, 2003)]
[Senate]
[Pages S2674-S2676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                Ephedra

  Mr. President, I would also like to address another issue that is 
totally unrelated.
  On February 14, a Friday, I stood in this spot and spoke about an 
issue, one that has been on my mind for almost 6 months, an issue which 
worries me, concerns me, because it relates to the health and safety of 
American families.
  On that day, I challenged the Secretary of Health and Human Services, 
Tommy Thompson, under his authority to protect American families, to 
protect them against a nutritional supplement known as ephedra. You 
will find this supplement in a lot of diet pills, pills that are being 
sold over the counter as a supplement or vitamin or food product. They 
are sold as a way to lose weight or increase your energy or 
performance.
  People come in and buy them, with no restriction on how old you have 
to be or what your health is or what might interact with these 
supplements. And people buy those and find out, in many instances, that 
not only don't they work, they are dangerous.

  I have challenged Secretary Thompson for 6 months--6 months--to take 
these dangerous products off the market, and he has not done so. That 
was February 14.
  On February 16, a pitcher from the Baltimore Orioles dropped dead 
during training. He had cardiac arrest, and the coroner who examined 
his body afterwards--those who did the autopsy--disclosed the fact that 
he had used these supplements with ephedra. That was 2 days after I had 
given that speech.
  Time has run out for Steve Bechler and for many like him when it 
comes to protection from the harm of dangerous dietary supplements 
containing ephedra. We cannot bring Steve Bechler or my own constituent 
in Lincoln, IL, Sean Riggins, back. But we can fight to make sure this 
dangerous product is taken off the market immediately.
  Sean Riggins was a 16-year-old boy. And about 4 weeks after I held a 
hearing in Washington, he went into a convenience store in Lincoln, IL, 
a small town, and bought--off the counter, with no identification, no 
check--a pill that was supposed to help him to perform better as a 
football player. The pill had ephedra in it. As best we can determine, 
Sean Riggins--this healthy football player, 16 years old--washed down 
that pill with Mountain Dew or some other product with caffeine in it 
and went into cardiac arrest and died. This healthy young man died, 
after taking a pill sold over the counter that contained ephedra.
  I cannot think of another product that has generated so many adverse 
events, so many bad results--some extremely serious, even fatal--and 
yet has failed to generate any response from this Government to protect 
families and individuals buying these products.
  The Food and Drug Administration has received over 18,000 reports of 
adverse events, serious health consequences, from those using ephedra 
and within those 18,000 over 100 deaths. Yet the Food and Drug 
Administration and Secretary Thompson refuse to act. They want to study 
the issue. And as they study, innocent people die.
  Last August, I wrote to Secretary Thompson and urged him to ban these 
products. At that time, Lee Smith, an airline pilot from Nevada, had 
not yet suffered the debilitating stroke that cost him his health and 
his job due to ephedra.
  I again wrote to Secretary Thompson on August 22. At that time, when 
I sent him a letter begging him to do something about these products, 
my constituent, Sean Riggins--that healthy 16-year-old boy in Lincoln, 
IL, who played football and wrestled for his high school team--was 
still alive. He died September 3, after consuming an ephedra product 
called yellow jacket. You will find those by cash registers at gas 
stations and convenience stores across America--kids popping them 
because they think they make them better performers when it comes to 
sports or, even worse, taking these pills and drinking beer, craziness 
that leads to terrible health consequences. And those pills are sold 
over the counter, with no Government control.
  I wrote again, and I spoke directly to Secretary Tommy Thompson in 
September and October. My Governmental Affairs Subcommittee had 
hearings on the dangers of ephedra in July and October.
  I again urged the Secretary, in a letter sent to him less than 1 
month before Steve Bechler of the Baltimore Orioles died. Incidentally, 
did you see the followup articles in the sports pages, as other 
athletes, professional baseball players such as David Wells came 
forward and told his story about how he wanted to lose some weight, and 
he took an ephedra product and his heart was racing at 200 beats a 
minute. He flat-lined. He was almost in cardiac arrest before they 
finally brought him back.
  These are not sickly individuals. These are healthy athletes who are 
taking these products sold over the counter and risking their lives in 
the process.
  Yet the most we can get from Secretary Thompson in response is a 
suggestion that maybe we need a warning label. When the reporters asked 
him this past weekend about Steve Bechler of the Baltimore Orioles, his 
death because of ephedra, the Secretary was quoted as saying: ``I 
wouldn't use it, would you?''
  Well, I must say to the Secretary, this is not a matter of his 
personal preference. It is not a matter of whether as a consumer he 
would buy the product. It is a matter of his personal responsibility, 
his responsibility as Secretary of Health and Human Services to get 
this dangerous product off the shelves of American stores today and to 
protect families.
  I am not the only person calling for this ban on ephedra products. 
The American Medical Association, representing over 200,000 doctors, 
called on Secretary Thompson to ban ephedra products. They didn't do it 
last week after Steve Bechler died. No. They did it over a year ago 
after Canada had banned this product for sale in their country. They 
went to Secretary Thompson and said it is dangerous to sell in the 
United States. He has done nothing.
  Let me tell you another thing you might not know. The U.S. Army has 
banned the sale of ephedra in their commissaries worldwide after 33

[[Page S2675]]

ephedra-related deaths occurred among American servicemen. Does this 
make any sense? We believe as a government that we need to protect the 
men and women in uniform and so we ban the sale of these products at 
commissaries across the world, and yet the Secretary of Health and 
Human Services and the Commissioner of the Food and Drug Administration 
will not ban the sale of these products in convenience stores and 
drugstores and gas stations across America.
  When you ask him about it, the Secretary says: I am studying it. I 
have a group called the RAND Commission that is going to study it.
  With all due respect, we don't need another study. The Food and Drug 
Administration has received over 18,000 adverse reports about ephedra. 
The FDA could do followup on the most serious ones. In fact, the FDA 
did commission a review of adverse reports several years ago. That 
review by Drs. Haller and Benowitz established that 31 percent of the 
reports were definitely or probably related to ephedra and an 
additional 31 were deemed to be possibly related.
  We understand what we are up against. Ephedra is a danger. It is so 
dangerous that when it was used in its synthetic form with caffeine, 
that was banned over 15 years ago. They said you couldn't sell a drug 
in America, nor could you sell an over-the-counter drug product in 
America that contained ephedra and caffeine because, put together, it 
is a dangerous and sometimes lethal combination. But yet if you step 
back from the over-the-counter drugs and call it a nutrition 
supplement, a vitamin, a food, you are totally exempt from that 
prohibition. You can combine those two lethal substances, ephedra and 
caffeine, and sell them with impunity. Does that make any sense? Is 
that protecting consumers across America? Is that what you expect from 
your government?

  Certainly it is not what I expect. Many of these companies say it is 
a natural product. Ephedra is naturally occurring. That is no defense. 
Arsenic is a natural product. Hemlock is a natural product. That 
doesn't mean that they are safe. In fact, they are dangerous.
  We have seen a lot of studies that have come out about ephedra. We 
know what needs to be done. Many States have already taken action. 
Because the Federal Government has failed to act, over 20 States have 
enacted restrictions on the sale of ephedra-containing products.
  Incidentally, if you think these products are something you have 
never heard of, the leading sales of ephedra products are under the 
brand name Metabolife 365. You have seen them advertised on television 
and in magazines. Every time you walk into a drugstore and convenience 
store, you find: Metabolife tablets help you lose weight. Look 
carefully. Many of them contain ephedra, this lethal drug which has 
killed so many people.
  Suffolk County, a week or so ago in New York, decided to ban this 
product as well after a 20-year-old named Peter Schlendorf died in 
1996, and others suffered serious consequences. They understood, as the 
U.S. Army, Canada, Britain, Australia, and Germany, that action had to 
be taken to protect the residents. The National Football League, the 
NCAA, and the International Olympic Commission have reached the same 
conclusion, banning the use of this product by athletes.
  I wrote to the Baseball Commissioner, Bud Selig, last week and to the 
Baseball Players' Association urging them to follow suit. The question 
isn't whether these individual organizations will show responsibility. 
The question is whether this Government will accept its responsibility.
  I don't know Secretary Thompson that well. I have met him a few 
times. He is a very likable person. He certainly has had a 
distinguished public career in the State of Wisconsin, serving as a 
legislator and Governor of the State for many years, one of the most 
popular elected officials in its history. Everyone tells me this man 
really understands public service. I believe it.
  This really seems to be a blind spot. When I talked to Secretary 
Thompson on the phone about these products, he said: How are we going 
to stop these fellows from selling these products and endangering 
people? I said: Mr. Secretary, you can stop them. You have the 
authority to stop them.
  Time passes and nothing happens. I understand this industry is 
powerful. I have heard from them. I have heard from my colleagues in 
the Senate and House who have said: Don't take on these folks in the 
vitamin and nutritional supplement industry. They really have a lot of 
political clout. They do. But for goodness' sakes, if you can't stand 
up to an industry that is selling a lethal product to protect American 
families, why in the world would you take the oath of office to serve 
in the Senate? I think every Member understands that responsibility. It 
goes beyond political fear. It goes right to the heart of your 
political responsibility, the oath of office we all take and one we all 
value so much.
  In closing, I say to Secretary Thompson, you have another chance now. 
It is a chance which I pray you will take. The last time I made a 
speech on the floor of the Senate about this issue, Steve Bechler of 
the Baltimore Orioles, a man in his early twenties, a promising athlete 
with a great future ahead of him, was still alive. Sadly, he is not 
alive today. He took this product and he died as a result. Others will, 
too.
  That story, that tragic story of Steve Bechler, Sean Riggins, and so 
many others will be repeated over and over again. This industry may 
have political clout, but it does not have a conscience. It is up to 
the Secretary, as head of the Health and Human Services Department, to 
accept his responsibility to protect American families. A warning label 
is not enough. You cannot get by with putting a label on this product, 
saying: Caution, use of this product may cause stroke, a coronary 
event, or death. Why in the world would you allow such a product to be 
sold over the counter, unregulated in terms of the age of the buyer, 
unregulated in terms of the dosage? How in the world can you justify 
that kind of a thing?
  The Secretary needs to accept his responsibility, and if he does, I 
will be the first to applaud him. But until he does, stay tuned. You 
will continue to hear these speeches on the floor from me and others 
while helpless victims across America fall because of their consumption 
of this deadly product.
  Mr. REID. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. As the Senator knows, the Senate has been tied up in the 
matter of Miguel Estrada for 9 or 10 days. From what the Senator said, 
I don't know much about the product, but he has made a very persuasive 
argument. It seems to me if the administration and the Secretary, as 
part of the administration, refuses to do anything administratively, 
maybe we could well use some Senate time debating this issue. Maybe 
there should be a moratorium put on the sale of this until further 
information is obtained on it. I make that suggestion.
  My direct question, if the Secretary refuses to do something 
forthwith, wouldn't we well use the time that is now being spent on 
this nomination talking about this product that has killed people as 
the Senator has related?
  Mr. DURBIN. The Senator is absolutely right. In fact, we not only 
could, we should. We should accept that responsibility. We do have this 
Government which has three coequal branches. If the executive branch 
and Secretary Thompson refuses to use the authority he has under the 
law, frankly, I think we should ban the sale of this product in the 
U.S.

  As the Senator knows, we have been tied up for 3 weeks because Miguel 
Estrada refuses to disclose legal writings he has made. Even Republican 
Senators have suggested that he should.
  We have waited for Republicans to understand that with more 
information, we can put this behind us and move on to other important 
business--not just questions about health and safety, but questions 
about the economy of this Nation, issues on which we ought to be 
debating and acting.
  In closing, I am just going to ask Secretary Thompson again to take 
this very seriously. I hope we don't have to read about more athletes 
and other unsuspecting individuals and children who lose their lives as 
a result of these dangerous products. I say to any citizens following 
this debate, please think twice before you use a product containing 
ephedra. There are too many

[[Page S2676]]

cases of death and serious health consequences for people who thought 
they were taking an innocent little pill that can be sold over the 
counter at a convenience store. In fact, many have turned out to be 
lethal doses that have killed or caused a great deal of harm.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. TALENT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. Mr. President, the courts provide the 
foundation upon which the institutions of government in our free 
society are built. Their strength and legitimacy are derived from a 
long tradition of Federal judges whose knowledge, integrity and 
impartiality are beyond reproach.
  The Senate is obligated by the Constitution--and the public 
interest--to protect this legacy and to ensure that the public's 
confidence in the court system is justified and continues for many 
years to come.
  As guardians of this trust we must carefully scrutinize the 
credentials and qualifications of every man and woman nominated by the 
President to serve on the Federal bench.
  The men and women we approve for these lifetime appointments make 
important decisions each and every day, which impact the American 
people. Once on the bench they may be called upon to consider the 
extent of our right to personal privacy, our right to free speech, or 
even a criminal defendant's right to counsel. The importance of these 
positions and their influence must not be dismissed.
  We all have benefitted from listening to the debate about Miguel 
Estrada's qualifications to serve on the D.C. Circuit.
  I very much respect those Senators who desire to have additional 
information about Mr. Estrada's personal beliefs. Their efforts reflect 
a sound commitment to the Senate's constitutional obligation to advise 
and consent.
  At the same time, I am troubled by those who have suggested that some 
Senators are anti-Hispanic because they seek additional information 
about this nominee. Poisoning the debate with baseless accusations 
demeans the nomination process.
  After reviewing Mr. Estrada's personal and professional credentials--
including personally interviewing the nominee--I believe he is 
qualified to serve on the D.C. Circuit Court--and, I will vote in favor 
of his nomination.
  A Federal appellate judge's power to decide and pronounce judgment 
and carry it into effect is immense and comes with a moral and legal 
obligation to conform to the highest standards of conduct.
  Federal judges must possess a high degree of knowledge of established 
legal principles and procedures and must also be impartial, even 
tempered and have a well-defined sense of justice, compassion and fair 
play.
  In addition, a judge must have the integrity to leave legislating to 
lawmakers. Judges must have the self-restraint to avoid injecting their 
own personal views or ideas that may be inconsistent with existing 
decisional or statutory law.
  I believe Mr. Estrada possesses the knowledge and skills needed to be 
a successful court of appeals judge. Few would argue with his academic 
credentials, litigation experience or intelligence.
  And based on my conversation with him, and those who know him well, I 
believe he respects--and will honor--his moral and legal obligation to 
uphold the law impartially.
  However, should Mr. Estrada someday be considered for a position on 
the Supreme Court--as some have suggested he could be--I believe 
further inquiry not only will be justified, but necessary.
  While appellate judges are constrained to a great degree by 
precedent, and by a check on their power by the Supreme Court, justices 
on the High Court have greater latitude to insert their own ideological 
viewpoints.
  Mr. Estrada agreed wholeheartedly with this point when we discussed 
his nomination.
  Make no mistake; I believe all judicial nominees should be completely 
forthcoming during the confirmation process.
  Mr. Estrada has argued that he's satisfied a minimum threshold of 
disclosure, and that revealing additional information about his 
personal ideological beliefs may compromise his image of impartiality--
if he eventually is seated on the federal bench.
  I disagree with his approach, because it leads to the suspicion and 
mistrust--like that which now engulfs us.
  Furthermore, I do not believe a similar argument reasonably can be 
made by a nominee to the Supreme Court. Ideology can be central to the 
High Court's decisions. As a result, absolute disclosure by Supreme 
Court nominees is necessary to protect the public interest.
  In sum, while I believe Mr. Estrada could have been more forthcoming 
in order to avoid this controversy, my conclusion is that he is 
qualified to serve on the D.C. Circuit.
  Should he come before the Senate as a nominee to the Supreme Court, 
he must be willing to provide additional information about his personal 
beliefs.

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