Capitol Concerns: Whither FDA Commissioner?

It is a testament to the FDA's capabilities that the lengthy delay in naming the successor to Jane Henney as commissioner of Food and Drugs, apparently, has not affected its operations. The agency has operated under an acting commissioner previously for as long as 12 months, and it is increasingly apparent that an acting commissioner will continue in the position for the foreseeable future.

Food and drug circles are rife with rumors about potential commissioner candidates. Of the names that have surfaced, however, no name has produced the reaction that HHS Secretary Thompson should strive for: “an inspired choice.” To the contrary, the most common reaction to the names that have leaked or been leaked (sometimes by the candidates themselves) is “Who? What? Are you kidding?” Just recently, the trade press reported, apparently with some justification, that Thompson was thinking of naming a lawyer to the position. No inspired choice there.

The requirements of the job—speaking credibly to various constituencies (Congress, regulated industry, consumers, other regulators, foreign regulators), addressing cutting edge scientific and medical issues (cloning, artificial hearts, new threats to the safety of the food supply, safety of agricultural biotechnology), being an effective advocate within the executive branch, with foreign counterparts and, increasingly, in international organizations—all require a clear, firsthand understanding of the scientific issues. Even the most capable lawyer (and the lawyer candidates whose names have been mentioned as possible commissioner candidates are highly capable) will be forced to rely on the insights and conclusions of others—in this case, scientifically trained colleagues.

When the name of a certain lawyer surfaced in trade press reports as being Secretary Thompson's first choice as FDA commissioner, it was not surprising that Senator Kennedy, chairman of the Senate committee that would confirm a commissioner candidate—as well as a majority of the Democratic senators on the committee—promptly wrote a letter making clear their view that a lawyer (much less an industry lawyer) would not pass muster with them. Senator Kennedy's objection to a lawyer being selected as commissioner of the FDA is well grounded. Why does the Administration seem to be having such difficulty finding a qualified doctor/scientist to head the FDA? The attraction of a lawyer is that the lawyer does not bring science-based commitment to a variety of questions. A lawyer is more likely to view a number of issues in pragmatic terms—“My boss (the President) wants to restrict a certain drug. Is there a logical basis on which to do so?”

So, just what is Secretary Thompson to do? First, cross all the lawyers off of his list. Next, as the Kennedy letter suggests, cross off the candidates from industry. Finally, he should diligently seek—in the academic community—a politically savvy, public health-minded doctor or scientist looking to have a major impact on public policy for a few years (and to have great fun while doing so).

If the secretary is worrying about an independent-minded commissioner (a legacy of David Kessler's tenure that Republicans cannot seem to forget), he should stop. Indeed, the secretary should affirmatively seek a commissioner with independence who is also a team player; these are not incompatible traits. One of the most important things a commissioner can do for a secretary is take the heat on a variety of difficult issues. If the secretary subsumes the commissioner's office into his by overemphasizing the team player part, every politically unpopular decision made by the FDA will cost the secretary political capital.

Let the commissioner take the heat.