The 2012 Congressional Elections: What is at Stake for the Supplement Industry?

Pete Evich

October 5, 2012

11 Min Read
The 2012 Congressional Elections: What is at Stake for the Supplement Industry?

The current Senate configuration has the Democrats in control of that chamber by a 53 to 47 margin. There are actually only 51 Democrats, but the Senates two independents (Sens. Bernie Sanders [VT] and Joe Lieberman (CT]) regularly caucus with the Democrats. Every two years, one-third of the Senate, 33 or 34 seats, is electorally in play.

Unfortunately for the Democrats this time, they have to defend 23 of the 33 seats on the ballot in November. Given this disparity, its not a surprise Republicans are poised to pick up seats. Seasoned congressional election prognosticators, such as Charlie Cook of the Cook Report, are currently estimating Republicans will gain two to five seats in November. This outlook means if the Republicans win control or the Democrats maintain control, it will be by a razor thin majority.

In the House, the Republicans currently control 242 seats to the Democrats' 193. This means the Democrats need a net gain of 25 seats to seize control of the majority. Since voter mood indicates we are not entering a wave" election cycle like the one we saw in 2010, the current forecast is single-digit gains for either Democrats or Republicans in the House. Given this outlook, the GOP is expected to maintain control of the House of Representatives in the 113th Congress.

We know a significant number of House and Senate members from the 112th Congress will not be returning next year because they were defeated in the primary, decided to retire or announced their resignation. In addition, a number of House members are leaving their current elected position to seek another office, such as senator, governor,  or mayor. With that in mind, here are the numbers as they relate to these cases:

  • Primary race losses: 11 sitting House members (seven Democrats and four Republicans) and one senator (Sen. Richard Lugar, [R-IN]) lost their primary races

  • Retirements: 24 House members and 10 Senators are retiring after the 112th Congress

  • Resignations during the course of the 112th Congress: 10 House members and one senator

  • Running for other offices: 14 House members have decided to pursue other elected offices

With that background in place, I will now examinewith an industry-specific lensa select number of individual congressional races or retirements that are noteworthy in this election cycle.

Senate Races

Prior to this past May, there had not been a direct vote related to dietary supplement policy in the Senate since the vote on the Dietary Supplement Health and Education Act of 1994 (DSHEA). The May 24 roll call vote on the dietary supplement product registration amendment to the FDA Safety and Innovation Act (S. 3187), introduced by Sen. Richard Durbin (D-IL), put 97 senators (three missed the vote) on record on a proposal that would have heaped a substantial regulatory burden on the dietary supplement industry. As we know, the 77 to 20 vote to defeat Durbins amendment was an extremely heartening victory for the dietary supplement industry.

While the Durbin vote is clearly a tangible opportunity to scorecard an individual senators support or opposition for dietary supplements, in most cases, we should be careful to extrapolate the depth or extent of that senators views toward the range of federal issues that are industry priorities. In other words, if this one vote is the only measurement by which to gauge a senators stance on the issues that impact the dietary supplement community, it would be premature to deem that senator a champion of the industry. However, the Durbin amendment is a useful indicator to rate, at this point in time, a senators general predisposition toward the supplement trade.

In several instances, though, there are other actions, in addition to the Durbin vote, that senators have taken over the course of their congressional tenure that allow us to categorize them as either friendly" or unfriendly" to the trade.

With those factors in mind, a few of the key Senate races and retirements that are of particular interest to the supplement industry are:

  • Sen. Orrin Hatch, [R-UT]: I do not have to waste any ink explaining what Hatch has meant to this industry and the significance of his presence in the Senate. The Utah Republican Party Convention and the subsequent primary election, which occurred earlier this year, were the true determining events in regard to the senators future in the Senate. He survived both and will cruise to re-election in November. He will be entering his seventh term starting next Congress, which Hatch has recently announced will be his last.

It is important to note what lies ahead for Hatch in the 113th Congress, which, depending on which party wins control of that chamber in November, will be either the chairmanship or ranking member position on the powerful Senate Finance Committee.

Industry Supporters:

  • Sen. Jon Tester (D-MT): Tester, an organic farmer before he entered elected life, has been a receptive ear to the industry during his first term in the Senate. In addition to voting against the Durbin amendment, Tester met with industry leaders and spent time at a major supplement trade show shortly after being elected to the Senate. He is locked in a close race with his opponent, Rep. Dennis Rehberg (R-MT). While the industry views Tester as someone sympathetic to industry issues at the federal level, no indication shows Rehberg, who is serving his sixth term in the House, would be adversarial to the industry if the outcome in November makes him the next senator from Montana.

  • Sen. Scott Brown (R-MA): Brown is locked in a tough re-election bid against consumer advocate Elizabeth Warren. While we do not have direct knowledge of Warrens views on the federal regulatory structure of supplements, her history as a consumer activist means we can safely predict she would give considerable weight to positions of the national consumer group associations. As we know, several mainstream consumer associations are on record supporting either pre-market approval for dietary supplements, or the addition of other significant regulatory burdens (e.g., consumer groups officially supported the Durbin product registration amendment). Brown, who also voted to defeat Durbins amendment, is hoping to stave off enough Obama-coattail votes to return to the Senate in January.

  • Sen. Dean Heller (R-NV): Heller, who voted against the Durbin amendment, is facing Rep. Shelley Berkley (R-NV) in what is expected to be one of the closest Senate races in the country. Democrats view the prospect of a Berkley win as critical to maintaining their majority status in the Senate.

  • Sen. Jeff Bingaman (D-NM): Bingamans retirement announcement has set the stage for an interesting race in the Land of Enchantment. Democrats have nominated two-term House member Martin Heinrich, while Republicans are supporting former Rep. Heather Wilson. An aggressive campaigner with a moderate voting record during her 10-year career in the House, Wilson is seen as the most formidable candidate the Republicans could have fielded against Heinrich. However, recent polls show Heinrich maintains a solid lead in race. Moreover, Heinrich will be the beneficiary of what are expected to be robust Obama coattails. While neither Heinrich nor Wilson have much of a track record regarding dietary supplement issues, reports are that Heinrich has demonstrated an attentive ear to industry issues, such as FDA's new dietary ingredient (NDI) draft guidance that was withdrawn earlier this year.

Industry Critics

  • Sen. Herb Kohl (D-WI): Kohl, after having served four terms, decided to retire. While Kohl voted against the Durbin amendment, he was viewed as a supplement industry critic in light of the 2010 hearing he held that focused on alleged deceptive advertising and marketing practices in the industry. This open-seat race features former Secretary of Health and Human Services Tommy Thompson, a Republican, against Rep. Tammy Baldwin (D-WI), who serves on the House Energy and Commerce Committee. Republicans see this race as critical in their quest to take control of the Senate. Thompson, a former governor from the Badger state, is currently leading in the polls.

  • Sen. Claire McCaskill (D-MO): McCaskill, the only Democrat locked in a tight re-election battle who voted for the Durbin amendment, caught a big break when her Republican opponent, Rep. Todd Akin (R-MO), uttered his widely reported legitimate rape" gaffe in late August. Akin rebuffed calls by national Republican Party leaders to withdraw his candidacy and decided to remain in the race. As a result of this development, at press time, the Missouri Senate race went from a lean Republican advantage to a lean Democratic one.

House Races

  • Rep. Jim Matheson (D-UT): The sixth-term Matheson, who is a strong supporter of the supplement industry, is the only Democrat that appears to be able to win a congressional seat in an overwhelmingly Republican state. In a boost to Matheson, his newly revised fourth district has more registered Democrats then his previous district. But it could prove to be a competitive race for Matheson, especially because the Republican presidential nominee, Mitt Romney, is expected to boost turnout in the Beehive State.

  • Rep. Dan Burton (R-IN): After serving 15 terms in the House, longtime dietary supplement stalwart Burton has decided to retire. Throughout his congressional career, Burton has been an active supporter of the supplement trade and served as a co-chair to the Congressional Dietary Supplement Caucus in the last several sessions. Without question, the supplement industry will be losing an identifiable supporter of its issues with this development.

  • Rep. Cliff Stearns (R-FL): Stearns, who is a 12-term congressman and high-ranking Energy and Commerce Committee member, was taken by surprise and defeated in his primary race in August. Stearns has been the chairman of the House Energy and Commerces Subcommittee on Oversight and Investigations in the 112th Congress. In 2003, when the House Energy and Commerce Committee convened a hearing on the herb ephedra, Stearns questioned FDA Commissioner Mark McClellan on the wisdom of an outright ban on of the substance, noting the herb was present at small concentrations in several products. Given that Stearns is currently third in seniority on the House Energy and Commerce Committee, he was poised to be either the chairman or ranking member in the not-too-distant future. Therefore, Stearns primary defeat can be viewed as somewhat of a setback for the industry.

  • Rep. Ron Paul (R-TX): Paul, who hit the national spotlight with his last two White House runs, has decided to end his congressional career after this term. Paul, who has a strong libertarian streak, has long been a critic of FDAs regulatory posture related to dietary supplements.

Summing Up the 2012 Congressional Elections

The electoral analysis key takeaways include:

By virtue of primary defeats, resignations or retirements, the supplement industry will be losing a few supporters and one known critic (Sen. Herb Kohl).

  • The industrys two powerhouse Senate champions, Hatch and Harkin, will be returning to the Senate in the 113th Congress, and their high-ranking committee positions will continue to make them incredibly significant players in that chamber.

  • The industrys number one detractor, Durbin, will also return to the Senate next year.

  • Republicans are poised to maintain control of the House.

  • Control of the Senate is up in the air; the party that wins control will do so with the narrowest of margins.

The current congressional climate on supplement issues (i.e., favorable, but with a large number of members who arent well versed in our issues) should be retained in the 113th Congress.

Given the significant amount of close races, retirements and resignations in both chambers, there will be myriad new members of Congress coming to Washington next year, which will provide the industry with a great opportunity to engage and make new friends.

With more than 20 years of Capitol Hill experience, Pete Evich is vice president of Washington-based Van Scoyoc and Associates, a full-service federal government affairs firm. Evich also serves as national legislative consultant for the American Herbal Products Association (AHPA)

Hear more form AHPA as well as the United Natural Products Alliance (UNPA) and Natural Products Association (NPA) on the 2012 elections at the SuppySide Education Session, on Thursday, Nov. 8, at 11 to 11:50 a.m., Las Vegas.

Election Day, Nov. 6, 2012, occurs during SupplySide West this year, so be sure to vote early. Go to the SupplySide website and select your state to sign up for an early voting mail-in ballet

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