Veto of Supplements Bill Is Now Drawing Scrutiny

Times Staff Writer

In a meeting last year with former San Francisco 49ers Coach Bill Walsh in the Capitol, state Sen. Jackie Speier was discussing her legislation to crack down on high-school athletes' use of performance-enhancing supplements.

Gov. Arnold Schwarzenegger unexpectedly popped in, cigar in hand, the Hillsborough Democrat recalled.

" 'Oh, yeah, I'm for that,' " she remembered him saying.

So Speier was stunned when, in September, Schwarzenegger vetoed the bill. Indeed, on the surface, his veto was something of a surprise: There was no organized opposition.

But in taking the action, the Republican governor sided with a segment of the dietary supplement industry that advertises heavily to would-be muscle builders. Schwarzenegger has a contract with a major muscle-magazine publisher that promises to pay him an estimated $8 million over the next five years for helping to "further the business objectives" of the company.

Speier, who has revived her quest with new anti-supplement legislation this year, held a news conference Thursday aimed at pressuring the governor to embrace her new measure. Speier said she was "connecting the dots" between Schwarzenegger's veto last year and his contract.

"He has one vote, but it's a powerful vote," she said, "and it means the difference between a bill becoming a law or a bill being vetoed. He is judge and jury. And his role as an executive in this state is incredibly significant."

Speier has carried several bills over the years to limit or ban dietary supplements. She introduced her legislation last year amid the BALCO steroid scandal, in which several professional athletes were called to testify before a federal grand jury.

In pushing her legislation, Speier has elicited testimony from families of at least two high school athletes who used steroids and committed suicide.

There also has been testimony about supplement-related problems ranging from acne to heart damage. Speier has cited liver damage, elevated blood pressure, aggressive behavior, mood swings and headaches associated with various products.

Although the dietary supplement industry did not openly oppose last year's legislation -- representatives said they did not view it as an assault on their industry -- an array of health experts, consumer groups and educators embraced it.

Dr. Christine Haller, a professor at UC San Francisco medical school and a leading expert on dietary supplements marketed as ways to enhance performance, was among the backers. "Many of the commonly used substances have little or no proven benefits for improving athletic performance, and, therefore, the risks versus benefits are generally unfavorable," Haller wrote in a letter supporting the bill.

Early versions of the 2004 measure, SB 1630, would have required random testing of high school athletes for steroid and performance-enhancing supplements. After that provision stirred opposition from civil libertarians, Speier dropped it.

The measure that won final approval was relatively modest.

It would have required the California Department of Health Services to develop a list of performance-enhancing dietary supplements, based on lists already compiled by the U.S. Anti-Doping Agency and similar sports organizations. Students wanting to play sports would have had to agree not to use such substances. Schools would have been banned from taking sponsorships from supplement manufacturers, and school employees could not sell, distribute or promote those supplements. Speier added that provision after reading press accounts of a coach distributing supplements. The clause has been dropped from this year's bill.

Finally, the 2004 measure sought to require high school coaches to take courses so they could properly teach student athletes about the dangers of steroids and "performance-enhancing dietary supplements."

In his veto message, Schwarzenegger said the bill's definition of performance-enhancing drugs was "unclear, open-ended and difficult to interpret, making implementation problematic." He added that "most dietary supplements are safe." Additionally, he noted that the U.S. Food and Drug Administration "regulates dietary supplements," and that "this activity is best left with the FDA, which has a broader and deeper knowledge base to develop a scientifically validated list of harmful performance-enhancing dietary supplements."

Schwarzenegger spokesman Rob Stutzman said Thursday that while the governor remains concerned about costs associated with Speier's new bill, "we're generally inclined to support what she is trying to do."

In 1994, Congress approved the Dietary Supplement Health and Education Act, which led to a boom in the dietary supplement industry, particularly substances marketed as ways to enhance athletic performance and lose weight. In many instances, manufacturers use herbs that are chemically the same as synthetic drugs. Unlike drug makers, however, marketers of dietary supplements are not required to prove the safety of their products. Rather, the federal government must prove the products are unsafe -- a process that has proved cumbersome.

Although no single group actively opposed Speier's bill last year, most Republican legislators voted against it. A GOP analysis of the bill explained their argument, saying the "best method to prevent adolescent athletes from taking performance-enhancing supplements is parental involvement."

The Republican analysis also said that the measure required high school coaches to complete courses at their own expense. Such courses would cost up to $100 and come out of the coaches' pockets, the GOP said.

Speier's new bill, while similar to what Schwarzenegger vetoed, goes further by specifically banning the sale to minors of products that include the stimulant synephrine. It also refers to drugs and supplements banned by the U.S. Anti-Doping Agency, including the steroid-precursor called dehydroepiandrosterone, or DHEA. The August edition of Muscle & Fitness, a publication for which Schwarzenegger is executive editor, contains an article touting DHEA. Among the brands containing DHEA is Nitro Test 2. Products containing synephrine, also known as bitter orange, include Lipo 6, which advertises in Muscle & Fitness, and Metabolife Ultra.

The new bill has generated opposition from three trade groups representing dietary supplement makers. In a letter to Schwarzenegger dated last week, the Council for Responsible Nutrition, American Herbal Products Assn. and National Nutritional Foods Assn. said the bill "unfairly gives the perception that dietary supplements are unsafe."

"Our associations urge you to send a strong message that you will veto this legislation if the Legislature sends it to your desk," the letter states.

In an interview, Steve Mister, president of the Council for Responsible Nutrition, disparaged Speier's bill, saying she portrays it as a measure to ban steroids. But noting that steroids are already illegal without a prescription, Mister said her bill is aimed at what he views as legitimate dietary supplements.

Because news of the governor's contract could affect the debate over the bill, Mister said, "I would hope the governor, as well as legislators in the Assembly, would look at the bill on its merits."

Elisa Odabasian of Consumers Union, a main backer of both this year's bill and the one Schwarzenegger killed, said the governor's decision to sign the contract "with this industry puts him in conflict. Now what do we do? How do we expect him to be clear-headed about this issue?"

Times staff writer Peter Nicholas contributed to this report.

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