Issue: 61 Page: 0
FDA Announces Ban on Ephedra Supplements: Federal Move FollowsBans by California, Illinois and New York (Expanded Version)
by Mark Blumenthal
HerbalGram. 2004; 61:0 American Botanical Council
FDA Announces Ban on Ephedra Supplements: Federal Move Follows
Bans by California, Illinois and New York
Note: This is an extended version of an article originally appearing in HerbalGram 61. To read the original article, please click here.
by Mark Blumenthal
On December 30, 2003, the Food and Drug Administration (FDA)
announced its intentions to ban the sale of dietary supplements containing the
popular but controversial herb ephedra, also known by its Chinese name ma huang
(Ephedra sinica Stapf, Ephedraceae).1
At the press conference, Secretary of Health and Human Services
(HHS) Tommy Thompson and FDA Commissioner Mark B. McClellan, MD, PhD, presented
the government’s case against herb when sold as dietary supplements. FDA’s
forthcoming regulations to ban ephedra were said as being in the final administrative
stages and would be published in the Federal Register some time in January,
and would go into effect 60 days after its publication, possibly in mid-March.
After that date, it will be illegal to manufacture or sell dietary supplements
that contain ephedrine and related ephedra alkaloids, including ephedra weight-loss
supplements.
FDA also issued a Consumer Alert in which it urged consumers
"to stop buying and using [ephedra] products immediately."2 Secretary
Thompson stated that the reason for the timing of the announcement came from the
agency’s wanting to discourage consumers from using supplements containing
the herb as millions of people traditionally begin new diet regimens at the end
of the Winter Holidays. "The time to stop taking these products is now," HHS Thompson
said. "They are simply too risky to be used."
Secretary Thompson and Commissioner McClellan urged retailers,
manufacturers and marketers to immediately cease sales of all ephedra products
prior to the publication of the rule in January. "By issuing these letters today,
we’re sending a strong and unambiguous signal about the safety of dietary
supplement products containing ephedrine alkaloids," said McClellan. Consumers
should stop buying and using ephedra products right away, and FDA will make sure
consumers are protected by removing these products from the market as soon as
the rule becomes effective."1 Curiously, but perhaps predictably, the
next day the Associated Press carried a story describing how many consumers who
successfully use ephedra-based supplements were stocking up in anticipation of
the ban.3
Secretary Thompson said, "First, I am pleased that we were
able to take the strong action against ephedra. For too long dietary products
containing ephedrine alkaloids have been heavily promoted and widely used. They
are simply too risky to be used, whether by people who want to lose weight or
by elite athletes seeking to enhance their performance, or by youngsters who want
to be like these athletes."4
New Legal Framework
Thompson continued, "Second, the regulation that FDA will be
publishing will set a new significant legal precedent. For the first time, we
will be articulating the legal standard for protecting the public health under
the standards of the dietary supplement law which Congress passed approximately
10 years ago [DSHEA]. This is a workable and I think coherent standard that will
enable Americans to have access to dietary supplements while enabling FDA to be
able to protect consumers from adulterated products."4
As intimated by Thompson, HHS and FDA announced the creation
of a forthcoming new "framework" for determining if a dietary supplement "presents
a significant or unreasonable risk of illness or injury under conditions of use
suggested in the labeling or under ordinary conditions of use." The new framework
will be published in the upcoming Federal Register notice with the proposed
rule.
The impact of the proposed ban on ephedra on other herbs and
supplements was unclear. Despite the good safety record of most popular herbs
in the U.S. market, the language used in announcing the ephedra ban implicated
some of FDA’s long-held irritation with the "burden of proof" provision of
the Dietary Supplement Health and Education Act of 1994 (DSHEA). Thompson said
that the FDA could not have acted any sooner because DSHEA does not require manufacturers
to prove a product safe prior to bringing it to the market. To remove an unsafe
supplement from the market, FDA must prove a clear danger to public health. Thompson
called this "a tremendous burden of proof’." "We have to prove scientifically
that they’re unsafe. That’s a completely different burden of proof that
FDA has [than it had prior to DSHEA]. Now, Congress should take a look at whether
or not they want that to continue." In response to a reporter’s question,
he said that he was not working with members of Congress to change DSHEA,
calling it the prerogative of Congress, not HHS or FDA.4
[Editor’s Note: The question surrounding FDA’s
authority to protect the public against unsafe dietary supplements has been at
the core of the debate on ephedra. To clarify this issue, a leading Washington,
D.C. regulatory attorney, Stephen McNamara, formerly an attorney for the FDA,
has written that, according to federal law, FDA does have adequate authority.5]
The issue of FDA’s authority was the subject of editorials
in The New York Times and USA Today which both decried the fact
that it the ban took too long and suggested that increased safety regulation was
necessary.6,7
In an action related to the announcement, FDA sent letters
to 62 firms that market dietary supplements containing ephedrine alkaloids "to
give you advance notice of the publication of this rule to facilitate your earliest
compliance," and to inform these firms that "FDA intends to begin enforcing the
rule as soon as it becomes effective" (i.e., 60 days from the date it is issued).1
The contents of the letter and the list of companies to whom the letters were
are also posted on the FDA’s website (see below).
Questions from reporters sought the identity of additional
herbs whose safety may be considered questionable that FDA may consider banning.
At the press conference, Commissioner McClellan did not reveal any names, but
stated, "Many dietary supplements have important values."4
On three separate occasions Secretary Thompson expressed his
desire to have the authority to receive [mandatory] reports of adverse events
from supplement manufacturers. This position is supported by a Citizen Petition
filed by AHPA last March in regard to serious adverse events.8
The FDA ban marks the first time the agency has removed a popular
dietary supplement from the market under the provisions of DSHEA. "We are going
to issue a rule that clarifies and applies a legal standard that that has never
been used before. Using the challenging standard provided under the law, we have
done all we can to make sure our regulatory action will succeed," said Dr. McClellan.1
FDA’s actions come after several high-profile deaths of
sports figures, most notably the untimely death of Baltimore Orioles pitcher Steve
Bechler at a Florida training camp in February 2003. Bechler’s death and
previous controversies about the safety of ephedra supplements have resulted in
many calls for the ban from Congressional members and medical groups. Numerous
professional and amateur sports associations, including the International Olympic
Committee, and various branches of the military have banned ephedra supplements.
In the past year California, Illinois and New York have banned retail sales of
dietary supplements containing the herb.
Last March, FDA proposed strict new warnings for the primary
display panel on all ephedra supplement labels.9,10 At the same time
it announced the results of the independent report from the RAND Corporation on
ephedra’s risks and benefits.11 Since then FDA has researched
all the available scientific literature and has reviewed more than 10,000 public
comments that it received in response to its proposal. FDA has apparently attempted
create a solid scientific case capable of withstanding a potential challenge in
an administrative hearing, as permitted by DSHEA.
Various official documents, press releases, questions and answers
on ephedra, the warning letter to the 62 manufacturers, the list of manufacturers,
and other communications from FDA related to the ephedra ban are available at
<www.fda.gov/oc/initiatives/ephedra/december2003/>.
Industry Response
One of the consistent responses by leaders of the herb industry
was that this action validates that many in the industry have been saying for
years, that contrary to protestations by previous FDA officials and some members
of Congress, FDA does have adequate authority and power to remove dietary
supplements from the market that it deems unsafe. "This decision by FDA is evidence
that the agency has acknowledged its authority under the current law," said Michael
McGuffin, President of the American Herbal Products Association. He added, "AHPA
will attentively evaluate the data on which this decision to ban ephedrine-containing
supplements was based as soon as that information is available."12
"What the ephedra ban proves is that DSHEA works," said David
Seckman, executive director and CEO of the National Nutritional Foods Association
(NNFA) in a press release.13 "The FDA has had the authority since the
passage of DSHEA to remove products from the marketplace it deems unsafe. For
years, NNFA has urged the agency to use its powers to resolve the debate over
ephedra."
It was not clear at press time (January 12) whether any industry
group or individual companies would sue the FDA to challenge the ban. Industry
veteran Loren Israelsen, executive director of the Utah Natural Products Alliance,
a trade group representing manufacturers primarily in the Utah region, was quoted
in the New York Times calling ephedra "a political lightning rod." The
Times wrote that "Mr. Israelsen said other supplement makers feared that
if the F.D.A. did not act against ephedra, Congress would move to tighten the
agency’s jurisdiction over all dietary supplements."14
The Council for Responsible Nutrition’s John Hathcock,
PhD. was quoted by the Associated Press as saying that CRN did not oppose a ban,
that few companies are still making products with ephedra, and most of CRN members
who formerly did no longer do so. "We think the reputable players have found so
much controversy and difficulty in this marketplace that they’ve decided
to get out of it," AP quoted Hathcock. "We recognize the controversy is a cloud
over our whole industry."15
Exemption for Teas and TCM Practitioners?
One small bit of hope remained for sellers of teas and licensed
healthcare professionals who employ ephedra in their scope of practice for uses
that are consistent with ephedra’s use in traditional Chinese medicine (TCM)
for pulmonary complaints and related conditions. FDA’s website has a "Questions
and Answers on FDA’s Actions about Ephedra Dietary Supplements" section that
suggests that the Agency will continue to allow ephedra to be dispensed for such
conditions as appropriate within the practice of TCM by licensed acupuncturists
and doctors of Oriental medicine. The FDA stated, "Essentially all currently marketed
dietary supplements will be affected by the rule. The rule does not pertain to
traditional Chinese herbal remedies. It generally doesn’t apply to products
like herbal teas that are regulated as conventional foods."16 Such
exemptions await clarification in the final rules.
FDA Action Follows Ban in 3 States
The FDA’s ban on ephedra follows previous bans of all
dietary supplements containing ephedra (and/or any of its alkaloids, such as ephedrine,
pseudoephedrine) by California, Illinois, and New York. The new ban by FDA essentially
"trumps" the earlier bans in the three states. Illinois was the first of three
states this year to ban ephedra (Ohio banned retail sales of ephedra in 1994,
but lifted the ban in late 1996 and Nebraska banned its sale in 1996, reversing
the ban in 2001.)
On May 25, 2003, Illinois Governor Rod Blagojevich (D) signed
The Ephedra Prohibition Act banning the herb from retail sales as a dietary supplement.17
Unlike California and New York (see below), Illinois’ legislation does not
allow an exception for health care practitioners like acupuncturists to use ephedra/ma
huang in formulations as part of their clinical practice. Illinois does
permit the sale ephedrine alkaloid-containing products marketed under an OTC monograph
or the prescription of ephedra alkaloid-containing drugs by conventional health
professionals as explicitly approved by the FDA (i.e., for FDA-approved medical
uses).
Illinois is the state where high school football player Sean
Riggins died from what the family and local coroner believe were ephedra-related
causes. The causality of ephedra in this case has been disputed. An independent
review by an expert cardiac pathologist hired by the Ephedra Education Council,
a group representing ephedra manufacturers, pointed to infection as the cause
of death, according to a letter from Grover M. Hutchins, M.D., Professor of Pathology
at Johns Hopkins University.18 It may not be surprising that Illinois
is the first of three states to have banned ephedra, as US Sen. Dick Durbin (D)
reportedly had a hand in the action. He has held several hearings on ephedra safety
and has introduced a bill into the Senate, The Dietary Supplement Safety Act of
2003 (S 722), a bill that is based on Durbin’s concern’s over ephedra
safety.
On October 12 lame-duck California Governor Gray Davis (D)
signed into law a bill that will make sales in California of dietary supplements
that contain any amount of "ephedrine group alkaloids" a crime as of January 1,
2004.19 The bill effectively makes any dietary supplement containing
the herb ephedra illegal for any purposes unless it is sold by medical prescription.
The California ban, originally introduced on February 20, 2003,
as Senate Bill 582 by Sen. Jackie Speier (D-San Francisco/San Mateo), does not
affect FDA-approved over-the-counter (OTC) or prescription drugs containing ephedra
alkaloids; these drugs will continue to be available in the state by prescription
only. (This provision is similar to those in Illinois and New York.) In California
licensed health care practitioners are exempt from the restrictions, with the
exception that the new law places a statutory restriction on such practitioners’
scope of practice by specifically criminalizing their dispensing of ephedrine-containing
supplements for weight loss, body building, or athletic performance enhancement
— areas for which ephedra-containing dietary supplements have been popularly
marketed. The law specifically stipulates that sale of dietary supplements containing
ephedra alkaloids "directly to a licensed health care practitioner" and to "a
licensed pharmacist" will continue to be legal only when the product is for the
purpose of treatment of patients under the direct care of a health care practitioner.
Presumably, "licensed health care practitioner" in California would include licensed
alternative healthcare practitioners like acupuncturists and the now-licensed
naturopaths,20 so long that the herbal preparations with ephedra are
used within the scope of practice defined in the law. The penalty for violation
of the law is a misdemeanor with imprisonment in a county jail for not more than
one year, or a fine of not more than $1,000, or both. If the violation is committed
with intent to defraud or mislead, the violator is subject to not more than one-year
imprisonment in county jail of state prison, or a fine of not more than $10,000,
or both.
New York became the third state to ban ephedra. The new law,
signed by Gov. George Pataki (R) on November 3, provides for a fine of up to $500
for each illegal sale of the supplement.21 The law allows ephedra in
supplements to be sold on a prescription basis. The ban became effective immediately.
The governor had officially signed the legislation into law on August 19, 2003.
Effective October 19, 2003, the sale of dietary supplements containing ephedra
has been prohibited and violators face fines of up to $500. Exceptions allow ephedra
to be included in Food and Drug Administration (FDA)-regulated nonprescription
(OTC) drugs and for the sale of the herb ma huang (ephedra) by licensed acupuncturists
and practitioners of Traditional Chinese Medicine so long as they are certified
by an entity accredited by the National Commission of Certifying Agencies. These
practitioners may distribute ephedra within the scope of their practice for appropriate
purposes, except for weight loss, bodybuilding, or as an "energy food." The
only other exceptions to the ephedra ban in New York are for products that receive
"explicit approval as safe and effective for [their] intended use under the Federal
Food, Drug, and Cosmetic Act … or [are] lawfully marketed under an over-the-counter
monograph" issued by the FDA.
In related moves to limit the availability of ephedra, in May,
Florida banned sales of ephedra-containing supplements to minors.22
New Jersey had passed a similar action previously on May 1, 2003.23
According to the Associated Press broad bans were also been under consideration
in Massachusetts, Nebraska, New Jersey and Hawaii.24 although the FDA’s
ban would make such moves moot. It should be noted that the American Herbal Products
Association policy for ephedra labeling prohibits the sale of ephedra-containing
herbal supplements to anyone under 13.25,26 While this is an industry
guideline, it is voluntary and does not have the force of law. Many companies
who have been marketing ephedra-containing products are not members of AHPA and
have been under no formal requirement to label their products in accordance with
the trade organization’s policy, other than the pressures attendant from
product liability considerations.
As has been noted in the media and based on the overall findings
of RAND report, FDA has had considerable difficulty accumulating adequate scientific
support for a ban. The state legislatures, however, are not bound by the same
standards of scientific evidence and appear to have responded to the highly publicized
ephedra-related deaths, adverse events, and the resulting lawsuits.
Criticized by some for dragging its feet, the FDA is now clearly
taking a leadership role. "We are laying the strongest possible foundation to
not only take the product off the market, but to keep it off," Commissioner McClellan
said at the press conference in December.4
References:
1. FDA. FDA Announces Plans to Prohibit Sales of Dietary
Supplements Containing Ephedra (press release) Washington, DC: Food and Drug Administration,
Dec. 30, 2003.
2. FDA. Consumer Alert: FDA Plans Regulation Prohibiting
Sale of Ephedra-Containing Dietary Supplements and Advises Consumers to Stop Using
These Products. Washington, DC: Food and Drug Administration, Dec. 30, 2003. http://www.fda.gov/oc/initiatives/ephedra/december2003/advisory.html.
3. Peter J. Ephedra Products Sell Fast Ahead of Ban. Associated
Press, Dec 31, 2003.
4. A text of Health and Human Services Secretary Tommy Thompson
and FDA Commissioner Mark McClellan on Dec. 30, 2003, as transcribed by eMediaMillWorks
5. McNamara SH. FDA has adequate power and authority to
protect the public from unsafe dietary supplements. HerbalGram 1996;38:25-7.
6. New York Times. The ephedra ban is not enough (editorial).
New York Times Jan. 5, 2004.
7. USA Today. Law lets risky stimulant take ephedra’s
place (editorial). USA Today Jan 6, 2004.
8. AHPA. Citizens petition by the American Herbal Products
Association for regulations requiring adverse experience reporting for dietary
supplements. Silver Spring, MD: American Herbal Products Assn., Mar. 20, 2003.
9. U.S. Food and Drug Administration. Dietary supplements
containing ephedrine alkaloids; Reopening of the comment period Docket No. 95N-0304].
Federal Register Mar. 5, 2003;68(43):100417-20.
10. Blumenthal M. FDA proposes strong warnings for ephedra,
releases independent RAND report on ephedra safety and efficacy. HerbalGram.
2003;58:68-70.
11. Shekelle P, Hardy ML, Morton S, Maglione M, Mojica WA,
Suttorp MJ et al. Ephedra and Ephedrine for Weight Loss and Athletic Performance
Enhancement: Clinical Efficacy and Side Effects. Evidence Report/Technology Assessment
No. 76 (Prepared by Southern California Evidence-based Practice Center, RAND,
under Contract No 290-97-0001, Task Order No. 9). AHRQ Publication No. 03-E022.
Rockville, MD: Agency for Healthcare Research and Quality; February 2003
12. AHPA. FDA moves to ban ephedra: final rule due in January.
Silver Spring, MD: American Herbal Products Assn., Dec. 30, 2003.
13. NNFA. FDA to ban ephedra. Costa Mesa, CA: National
Nutritional Foods Assn., December 30, 2003.
14. Stolberg SG. U.S. to prohibit supplement tied to health
risks. New York Times, Dec. 31, 2003.
15. Solomon J. U.S. bans ephedra, drug linked to deaths.
Associated Press, Dec. 30, 2003.
16. FDA. Questions and answers on FDA’s actions about
ephedra dietary supplements. Washington, DC: Food and Drug Administration, Dec.
30, 2003. <www.fda.gov/oc/initiatives/ephedra/december2003/qa.
html>.
17. Ephedra Prohibition Act. 2003 Ill. Laws 8 (May 28, 2003).
<http://www.legis.state.il.us/legislation/publicacts/fulltext.asp?Name=093-0008&print=true>.
18. Hutchins GM. Letter to Ephedra Education Council.
Jan. 11, 2003.
19. Ephedrine Group Alkaloids. 2003 Cal. Stat. 903 (Oct.
12, 2003). <http://www.leginfo.ca.gov/pub/bill/sen/sb_0551-600/sb_582_bill_20031012_chaptered.pdf>.
20. LaMont S. Doctor of Naturopathy Licensure Law Passes
in California. HerbalGram 2004;61:64.
21. An act to amend the general business law, in relation
to banning the sale of dietary supplements containing ephedra to persons in New
York state. 2003 N.Y. Laws 385. <http://assembly.state.ny.us/leg/?ch=385>.
22. An act relating to weight-loss pills; defining the term
"weight-loss pill"; prohibiting the sale or other transfer of weight-loss pills
to minors; providing a defense; requiring establishments selling such pills at
retail to post notice that such sale is unlawful; providing an effective date.
2003 Fla. Laws ch. 24.(May 21, 2003). <http://election.dos.state.fl.us/laws/03laws/ch_2003-024.pdf>.
23. An Act concerning products that contain ephedrine alkaloids
and supplementing Title 24 of the Revised Statutes. 2003 N.J. Laws 57 (May 1,
2003). <http://www.njleg.state.nj.us/2002/Bills/PL03/57.PDF>.
24. Gormley, M. N.Y. becomes third state to ban ephedra.
Associated Press, Nov. 3, 2003.
25. American Herbal Products Association. Ephedra trade
recommendation. Silver Spring, MD: AHPA, Sept., 2000.
26. McGuffin M. Self regulatory initiatives by the herbal
industry. HerbalGram 2000; 48:42.
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