Bush's Diet-Drug Problem

Not long after Governor George W. Bush named him Texas health commissioner in September 1997, William ("Reyn") Archer decided to restrict sales of dietary supplements containing ephedrine. It was a bold but logical move for the head of a nationally applauded state agency. An amphetamine-like stimulant derived from a Chinese herb, ephedrine was widely used for weight loss, but it seemed to pose serious health risks. Products with ephedrine had in the previous five years been linked to eight deaths and more than 1,400 health problems in Texas alone.

A few months after Archer's decision to crack down on ephedrine, something curious happened. Archer abruptly changed course. He called in large manufacturers and let them negotiate looser rules for marketing their ephedrine products. A physician and son of powerful House Ways and Means Committee chairman Bill Archer, Reyn Archer had gone from taking the actions of a crusading regulator to taking those of an industry ally.

Why the flip? Archer reversed himself because of the ephedrine industry's strong opposition and its threats of litigation, his spokesman said. But records and interviews obtained by TIME suggest another plausible reason: the office of Governor Bush encouraged, if not inspired, Archer's about-face after lawyers close to Bush began work for a leading manufacturer. Those same lawyers funneled $40,000 to Bush's re-election drive about the time of a key industry meeting with Archer. The rise and fall of ephedrine regulation offers a case study of politics, policy and money in George W. Bush's Texas.

Archer wasn't the first Texas health commissioner to tackle ephedrine. Since 1995, Texas' health department had been trying to ban over-the-counter sales of most ephedrine items. Marketed under such brand names as BioLean and Ripped Fuel, the substance had been linked to heart attacks, strokes and seizures. Leaders of what has become a $1 billion industry nationwide responded that their products were safe if taken as directed, and they launched a lobbying blitz against Archer's proposal to require a doctor's prescription for most products containing ephedrine.

To press its case, the herbal industry turned to Bush allies. Metabolife International--which makes Metabolife 356, the best-selling herbal diet product in America--hired a San Antonio law firm headed by some of Bush's closest political associates, including Jeff Wentworth, a powerful state senator. (In Texas it is legal for a sitting state senator to represent clients before a state agency.) Wentworth arranged a July 2, 1998, meeting between Metabolife president Michael Ellis and Archer. Ellis says he called for a "dialogue" with his industry in place of the tough regulatory stand--a position being quietly urged on Archer by the Governor's office, report two sources involved in the issue. Just days after Ellis' plea, Archer brought in an outside lawyer to help him and the state's board of health to negotiate a settlement with ephedrine producers.

What, exactly, was the role of aides to Bush in all this? The Governor's health-care adviser, Ron Lindsey, tells TIME he does not recall pressing Archer to abandon his initial tough-on-ephedrine proposal--although Lindsey allows that he strongly supported Archer's move to negotiate with ephedrine producers. Lindsey's 1998 calendar (a copy of which was obtained by TIME) shows that starting in May, he met with industry officials--including Ralph Oats, owner of Wellness International Network, who, along with his wife, contributed almost $90,000 to the g.o.p. and national candidates in the mid-1990s. Lindsey says another Metabolife lawyer, James Jonas III, paid him a visit, apparently to "get leverage" on the issue. But while Bush and his chief of staff, Joe Allbaugh, were kept informed, Lindsey insists "there was no pressure from the top [other than to] just work this thing out if you can." Allbaugh, who has since become Bush's presidential campaign manager, says Metabolife lawyers did not discuss the issue with him or the Governor.

Archer's negotiations with the industry were a closed-door affair. When he began the sessions on Aug. 11, officials from Metabolife and seven other companies flanked both sides of the U-shaped mahogany conference table in the department's boardroom. No outside doctors or consumer advocates were invited--unusual if Archer hoped to find common ground. Also missing were Archer's staff experts who favored strong regulation of ephedrine.

After the doors reopened, the industry seemed to get much of what it wanted. Archer accepted several industry positions, including ephedrine-dosage limits of 25 mg a serving and 100 mg a day--much higher than the limits favored by Archer's specialists, who cite evidence of ill health effects at significantly lower doses. Participants also agreed to let a smaller task force, including lawyers from an industry coalition headed by Ellis, work with Archer to tackle the remaining issues. According to notes obtained by TIME, they decided on what can only be called a rather unbalanced division of labor. Archer's general counsel, Susan Steeg, wrote, "Industry will draft rules." Pointing to her notes, Steeg claims she merely meant that the industry would shape the language, not the substance of the rules.