New York Times, June 20, 2011
Headline: Support Is Mutual for Senator and Utah Industry
Byline: ERIC LIPTON
SALT LAKE CITY — A drive along mountain-lined Interstate 15 here shows why Senator Orrin G. Hatch is considered a hero in this region nicknamed the Silicon Valley of the nutritional supplement industry.
In the town of Lehi is the sprawling headquarters of Xango, where company officials praised Mr. Hatch, a Utah Republican, late last year for helping their exotic fruit juice business “operate without excessive intrusion” from Washington.
Up in Sandy, Utah, is 4 Life Research, whose top executives donated to Mr. Hatch’s last re-election campaign after federal regulators charged the company with making exaggerated claims about pills that it says helps the immune system. And nearby in West Salem, assembly-line workers at Neways fill thousands of bottles a day for a product line that includes Youthinol, a steroid-based hormone that professional sports leagues pushed to ban until Mr. Hatch blocked them.
“Senator Hatch — he’s our natural ally,” said Marc S. Ullman, a lawyer for several supplement companies.
Mr. Hatch, who credits a daily regimen of nutritional supplements for his vigor at 77, has spent his career in Washington helping the $25-billion-a-year industry thrive.
He was the chief author of a federal law enacted 17 years ago that allows companies to make general health claims about their products, but exempts them from federal reviews of their safety or effectiveness before they go to market. During the Obama administration, Mr. Hatch has repeatedly intervened with his colleagues in Congress and federal regulators in Washington to fight proposed rules that industry officials consider objectionable.
While Congress is often stalled or bitterly divided in addressing some of the nation’s most pressing problems, like the economy and immigration, legislative champions like Mr. Hatch are often remarkably successful in delivering for niche industries or parochial programs. It is not unusual, of course, for lawmakers to fight for local interests, but Mr. Hatch’s alliances are particularly strong and mutually beneficial.
Mr. Hatch has been rewarded with hundreds of thousands of dollars in campaign contributions, political loyalty and corporate sponsorship of his favorite causes back home.
His family and friends have benefited, too, from links to the supplement industry. His son Scott Hatch, is a longtime industry lobbyist in Washington, as are at least five of the senator’s former aides. Mr. Hatch’s grandson and son-in-law increase revenue at their chiropractic clinic near here by selling herbal and nutritional treatments, including $35 “thyroid dysfunction” injections and a weight-loss product, “Slim and Sassy Metabolic Blend.” And Mr. Hatch’s former law partner owns Pharmics, a small nutritional supplement company in Salt Lake City.
But many public health experts argue that in his advocacy, Mr. Hatch has hindered regulators from preventing dangerous products from being put on the market, including supplements that are illegally spiked with steroids or other unapproved drugs. They also say he is the person in Washington most responsible for the proliferation of products that make exaggerated claims about health benefits.
Just in the last two years, 2,292 serious illnesses, including 33 that were fatal, were reported by consumers of supposedly harmless nutritional supplements, federal records show. (These “severe adverse reaction” reports do not necessarily mean the supplements caused the illnesses, just that the consumers became ill after taking them.) And some of Mr. Hatch’s most important supporters in Utah have faced repeated accusations of falsely claiming their products can treat almost everything, including cancer and heart disease.
“Orrin Hatch certainly has a right to fight for his constituents,” said Steven Novella, a clinical neurologist at the Yale School of Medicine who was a co-founder of a Web site that tracks claims by the supplement industry. “But the consequences are we have an effectively unregulated market for these products, a Wild West, and people are being abused by slick marketing, and as a result taking things that are worthless or in some cases not even safe.”
Mr. Hatch rejects such accusations, noting that he has repeatedly demanded that federal regulators step up enforcement of existing laws, and even worked to expand their powers.
“No relationships have or will ever have any impact on my policy positions,” Mr. Hatch said in a written statement. “Supplements are healthy and safe, and they are a major industry in my home state of Utah.”
The depth of his industry support could be put to a test over the coming year, as Mr. Hatch prepares for what could be a tough re-election fight if Representative Jason Chaffetz, a Republican, mounts a primary challenge. Mr. Chaffetz, a former executive at a Utah company that sells anti-aging and skin care products, is also an industry ally.
Several executives, though, say they cannot imagine turning their back on Mr. Hatch.
“Some folks get elected, go to Washington, forget where they came from,” John F. Gay, chief executive of an industry trade association, said last year in introducing Mr. Hatch at an industry convention in Las Vegas. “Others get elected, go to Washington, and use the knowledge they have gained, the relationships they’ve built, the power they have developed over the years of incumbency to help the folks who got them there. That is the type of person that Senator Hatch is.”
Hatch to the Rescue
Just to the left of the entrance at Xango’s corporate headquarters here in central Utah is the “Million Dollar Club,” where independent sales agents learn the pitch for the company’s $40-a-bottle juice, made from a Southeast Asian fruit called the mangosteen.
One night in March, Dr. Vaughn T. Johnson, a Xango distributor, delivered part pep talk, part medical seminar, in describing extraordinary powers attributed to mangosteen. Studies showed, Dr. Johnson said, it was “anti-tumor,” “anti-obesity,” “anti-aging,” “anti-fatigue,” “antiviral,” “antibiotic” and “antidepressant.”
“How do I know this isn’t just snake oil?” Dr. Johnson, an osteopathic physician, asked. “It’s a really simple answer. A company that is selling snake oil is not going to stay in business for almost 11 years and grow as fast as this company is growing.”
When Utah became a leading center of supplements a half century ago, an industry pioneer named John R. Christopher boasted that his more than 50 herbal formulas offered “almost miraculous healings.”
But by the early 1990s, the Food and Drug Administration had become uneasy about the growing number of exotic product and health claims, particularly after more than 20 deaths were attributed to a “natural” sleep remedy. After the agency conducted raids across the country to confiscate supplements deemed unsafe or sold for unapproved uses. Mr. Hatch came to the rescue.
Under legislation he pushed through Congress, nutritional supplement companies could introduce products without F.D.A. approval, and make general health claims without proving their effectiveness or safety. The legislation covered a wide range of products — not just vitamins and minerals, but also herbs, essential oils and other substances — and was written to give companies a lot of leeway in their marketing claims.
“It is a broad definition — and that was done intentionally,” said Loren D. Israelsen, a lawyer who created an association of Utah supplement businesses that helped draft and lobby for the 1994 measure.
But Xango’s record illustrates how companies eager to exploit the law can go too far.
In 2006, federal regulators warned Xango that brochures improperly promoted mangosteen juice as a disease cure, not just a healthy option. Xango is among more than a dozen Utah companies cited by federal regulators over the last decade for apparent violations of the law.
Xango, whose executives are the single biggest Utah-based contributors to Mr. Hatch’s political campaigns and have drawn Mr. Hatch to its headquarters to down shot glasses of their juice, blamed a marketing company that had printed the brochures. The company also insisted that it was closely monitoring distributors to make sure they did not make inappropriate claims.
But in his talk at Xango in March, Dr. Johnson — who lectures across the country at other company events — used some of the same language the F.D.A. had cited in its 2006 warning letter, and he referred the sales agents to a nearby company that still sold brochures making the improper claims.
Dr. Johnson also talked about his own medical research, saying he had documented how just a few ounces a day of Xango juice could reduce certain types of inflammation, including arthritis.
“As a doc, I’ve had a lot of patients come to me and tell me the success they are enjoying with Xango juice,” he said. “The key is to stay consistent, keep taking it.”
Dr. Johnson, in a written statement, said his remarks broke no rules, as he was citing results of medical studies. But a Xango spokesman said the company had initiated an inquiry and would discipline Dr. Johnson if necessary.
One fact he did not mention during his presentation was that his medical license had twice been suspended by the State of Utah, most recently in 2008, state records show, for charges including improperly prescribing excessive amounts of narcotics or turning over signed, blank prescription forms to a weight-loss clinic. He can practice medicine but remains on probation.
A Surprise Threat
Mr. Hatch has been ever vigilant about any threats to the industry. When Dr. Margaret A. Hamburg was nominated in 2009 as commissioner of the food and drug agency, her record as an aggressive health commissioner for New York City set off alarms.
Industry officials worried that Dr. Hamburg might move to introduce a new wave of regulations on nutritional supplements. Mr. Hatch, who serves on the Senate committee that oversees the F.D.A., pressed Dr. Hamburg during her confirmation hearing to agree that the no new laws were needed.
“Do you agree with me and all former F.D.A. commissioners that I have chatted with,” Mr. Hatch asked, that the agency had “sufficient authority to regulate the dietary supplement industry and to protect consumers?”
Dr. Hamburg offered a diplomatic answer: “This is really a complex issue. I want to take time to study and examine and work with you and others.”
Mr. Hatch’s instincts were correct that the industry would come under assault, but the attacks would come from other directions. And just as he has in the past, he relied on help from lobbyists, including his son and former aides.
Scott Hatch and Jack Martin, a former Hatch aide, and four other onetime aides who have worked at lobbying firms have earned at least $3.9 million in fees in the last five years representing the industry, according to the Center for Responsibility and Ethics in Washington. (Mr. Hatch’s office says his son does not lobby his father, leaving any contact between their offices up to Mr. Martin.)
“I do whatever they ask me to do many times because they’ve never asked me to do anything that is improper,” Mr. Hatch told an industry association last year, speaking of Mr. Martin. “And, besides, I believe in this industry.”
The most serious threat last year came from an unexpected source: Senator John McCain, Republican of Arizona. Citing cases in which professional athletes had failed drug tests after using nutritional supplements that were secretly spiked with steroids, Mr. McCain proposed a law last February that would give the F.D.A. more power to review new ingredients in nutritional supplements before they were brought to market and require manufacturers to report any illnesses linked to supplements, not just serious ones, as Mr. Hatch had advocated.
The industry rallied, urging consumers to send e-mail messages and letters to members of Congress, including Mr. McCain, objecting to the measure.
“Opponents to this bill and their well-paid Washington lobbyists have spread false statements and rumors about the legislation, which is really a disservice to consumers, and instead proudly boast that they remain largely untouchable by the F.D.A.,” Mr. McCain said on the Senate floor.
But after a meeting with Mr. Hatch, he soon abandoned his own legislation.
“We did it!” the Alliance for Natural Health, a trade group, wrote to its members. “It is time to celebrate your accomplishment.”
Mr. Hatch did help Mr. McCain press for some elements of his proposal — pleasing the professional sports groups that had sought the legislation — by getting them included in a separate Senate bill. A McCain aide said the senator considered those concessions a victory. Industry executives, who participated in the effort, believed that Mr. McCain largely backed off because he was concerned about the damage a highly motivated industry could do during his tough re-election fight in Arizona.
Mr. Hatch also worked to blunt other suggestions about the possible need for stricter regulation.
Congressional auditors issued a report last year concluding that nutritional supplement companies were too often making unjustified health claims and selling contaminated herbal products. The auditors said trace amounts of lead appeared in 37 of the 40 test cases.
At a Senate hearing, Gregory D. Kutz, the managing director for special investigations at the Government Accountability Office, held up a bottle of garlic capsules. Marketing materials, Mr. Kutz said, claimed that the pills could prevent and cure cancer, the common cold, obesity and diabetes.
“If these claims were true, imagine how this product could reduce health care costs in this country?” Mr. Kutz said.
A clearly annoyed Mr. Hatch pressed the G.A.O. official to acknowledge that such claims were already illegal. He also asked that auditors concede that the contaminants in the supplements were too low to pose a health threat.
“Nobody’s more interested in making sure that this industry works properly in the best interest of our people than I am,” Mr. Hatch told Mr. Kutz. “The trouble is the F.D.A. doesn’t have the money to really do what it should do.”
Mr. Hatch also succeeded in making sure that new restrictions on supplements the industry objected to were not included in a landmark food safety bill.
Grateful industry executives thanked Mr. Hatch at a fund-raiser during the industry convention last June.
“It is important that you support your champions — support people who support you,” Mr. Hatch told the gathering. “Even if you are a Democrat, you ought to be supporting me. Because I will help get other Democrats to straighten out their act to do what is right. And that will be a blessing to you.”
Question: How would you describe Senator Hatch’s style of representation? Why? How might one use the theory of the iron triangle to explain what Senator Hatch does? Does his style of representation serve the interests of his constituency? Of the nation?