200811.22

Off

“Legal Muscle” Supplement Online

in Articles

Legal Muscle Supplement
By Rick Collins, J.D.

When the original edition of Legal Muscle: Anabolics in America was published in late 2002, the topic of anabolic steroids was below the radar screen of the average American. Things are very different now. Until a new edition of the now sold-out book can be written, this “Supplement” is intended to briefly summarize some of the important developments of the past few years. While we will try to keep its content current, anyone seeking specific legal advice should rely on nothing short of a consultation with qualified counsel. Anyone seeking to reach us can do so at [email protected] or by calling 516-294-0300 (24 hours for emergencies).

During recent years, we have witnessed what has been described by sports journalists as “the most far-reaching steroids scandal in American sports.” It all started in early September of 2003, when a Burlingame, California performance nutrition company called BALCO exploded onto the headlines. Agents from the Internal Revenue Service and San Mateo County Narcotics Task Force had raided BALCO, and then searched the home of the personal trainer of San Francisco Giants slugger Barry Bonds. An escalating hunt for “designer steroids” and cheating athletes ensued, with dozens of professional and Olympic athletes dragged before a federal grand jury. Sports writers locked onto the story with relentless tenacity, ratcheting speculations about rampant athletic steroid use to feverish levels. Reports of adolescent use of steroids and steroid precursor dietary supplements also made prime time news. By January 2004, even the United States President was taking time out of his State of the Union speech to urge baseball and other sports to “get rid of steroids now.” When four men connected to BALCO were indicted in February 2004 on charges including the illegal distribution of steroids, Attorney General John Ashcroft himself made the announcement.

Amid an atmosphere of searing political attention to the issue, both state and federal legislators publicly cried out for stiffer steroid laws. Citing a state survey of 500 high school students that found 11 percent of boys had used “performance-enhancing substances,” California State Senator Jackie Speier pushed a bill to make it is a misdemeanor in her state to sell or furnish to anyone under 18 years of age any dietary supplement containing androstanediol, androstanedione, androstenedione, norandrostenediol, norandrostenedione, or dehydroepiandrosterone (DHEA). Although it overlooked many of the steroidal precursor products on the market, the bill, amending Section 110423.2 of California’s Health and Safety Code, was passed in September 2004 and signed by Gov. Schwarzenegger.

Far more sweeping federal legislation was close behind. On October 22, 2004, President Bush signed into law the Anabolic Steroid Control Act of 2004, scheduled to take effect 90 days later [Public Law No: 108-358; 118 Stat. 1661 (2004)]. Ratified by the U.S. Congress earlier in the month, the bill expanded the steroid law that had been passed in 1990. The new law also provides $15 million for educational programs for children about the dangers of anabolic steroids, and directed the U.S. Sentencing Commission to consider revising federal guidelines to increase the penalties for steroid possession and distribution.

The law, which took effect as of January 20th, 2005, added many new steroid compounds (five of which are further described by specific chemical isomers) to the previous list of substances that were legally defined as “anabolic steroids” and classified as Schedule III controlled substances. Mere possession of any of these products became a basis for an individual’s arrest and prosecution as a federal drug criminal. The new compounds are androstanediol; androstanedione; androstenediol; androstenedione; bolasterone; calusterone; *1-dihydrotestosterone (a.k.a. “1-testosterone”); furazabol; 13b-ethyl-17a-hydroxygon-4-en-3-one; 4-hydroxytestosterone; 4-hydroxy-19-nortestosterone; mestanolone; 17a-methyl-3b,17b-dihydroxy-5a-androstane; 17a-methyl-3a,17b-dihydroxy-5a-androstane; 17a-methyl-3b,17b-dihydroxyandrost-4-ene; 17a-methyl-4-hydroxynandrolone; methyldienolone; methyltrienolone; 17a-methyl-*1-dihydrotestosterone (a.k.a. “17-a-methyl-1-testosterone”); norandrostenediol; norandrostenedione; norbolethone; norclostebol; normethandrolone; stenbolone; and tetrahydrogestrinone.

For those with an interest in the exact language of the bill, Click here for the full text of the new law. While an exhaustive analysis of all the new compounds is beyond the scope of this supplement, a few observations are in order. Some of these new substances have been widely marketed as dietary supplements, such as androstenedione, norandrostenedione, norandrostenediol, 1-testosterone, and 4-hydroxytestosterone. Others, such as bolasterone, calusterone, furazabol, and stenbolone, are actually very old pharmaceutical steroids that were missed in the original federal law (note, however, that some states, among them California, did include some of these compounds in their own steroid laws. These largely forgotten compounds were likely included after the highly publicized reemergence of norbolethone (also added to the list) in an Olympic urine sample. Also listed is tetrahydrogestrinone, or THG, the so-called “designer steroid” that precipitated the BALCO scandal.

The law also changed the general requisite elements of an anabolic steroid. The “promotes muscle growth” language that preceded the list of compounds in the 1990 law is now removed from the statute. Strangely, an anabolic steroid, under the new law, need not be anabolic. It simply needs to be chemically and pharmacologically related to testosterone, and either on the new list of substances, or any salt, ester, or ether of a substance on the list. The omission of the criterion of promoting muscle growth profoundly impacts the process by which a newly created “designer” steroidal compound may be scheduled. Even under the 1990 law, the Attorney General had the authority under 21 U.S.C. Sec. 811 to schedule additional or newly discovered steroidal compounds without going back to Congress for approval. However, under the old law, in order for a compound to qualify as an anabolic steroid, the Attorney General was required to prove that the compound had anabolic properties. Under the new law, this is no longer a requirement, making the process much simpler. Rather, the Attorney General must only establish that the compound is chemically and pharmacologically related to testosterone. Litigation may be required to explore what “pharmacologically related” means with respect to steroidal compounds.

On the topic of scheduling new products by the Attorney General, some individuals have pointed out that under subsection (e) of 21 U.S.C. Sec. 811, an “immediate precursor” of a scheduled controlled substance may be more expeditiously scheduled than others. However, the applicability of this subsection appears misplaced. The definition of “immediate precursor” in 21 U.S.C. Sec. 802 (23) refers to substances that are the principal compounds used, or produced primarily for use, in the manufacturing process to make controlled substances, not to metabolic precursors that are converted by enzymes within the human body. Further, even if a given substance fits the bill, the Attorney General must first make a formal finding and regulation on this point.

After a protracted battle on the issue among members of Congress, the law permits the continued sale of DHEA as a dietary supplement by adding it to the list of other excluded hormonal substances (estrogens, progestins, and corticosteroids). The law also fixes some of the mistakes and poor draftsmanship of the 1990 law that I pointed out in the original Legal Muscle. Compounds that had been erroneously listed twice, under alternate names, are now listed only once (reducing by correction the original list of 27 compounds to 23). Gone are methandrostenolone (now listed only as methandienone), stanolone (now listed only as 4-dihydrotestosterone), chlorotestosterone (now listed only as clostebol), and methandranone (a substance that does not appear in the Merck Index and may have been a typographical mistake). Also, the misspelling of formebolone as “formebulone” has been corrected. For further clarity, the new law provides the chemical names of all the compounds, even listing specific isomers of certain substances. However, at least one typographical error was apparent during an initial review by independent chemists: 13b-ethyl-17a-hydroxygon-4-en-3-one (a de-methylated version of norbolethone) should read as 13b-ethyl-17b-hydroxygon-4-en-3-one. A new bill [S. 893] was introduced on April 25, 2005, to fix the problem (it also amends the chemical nomenclature for stanozolol). The new law retains the “catch-all” provision of the 1990 law concerning certain variations of the listed compounds. The definition of an anabolic steroid under the old law included, under subparagraph (xxviii), “any salt, ester, or isomer of a drug or substance described or listed in this paragraph, if that salt ester, or isomer promotes muscle growth.” The new law says, “any salt, ester, or ether of a drug or substance described in this paragraph.” Note that the reference to muscle growth in the old law has been omitted [from what is now, in the longer list, subparagraph (xlx) of the new law], and that the word “isomer” has been replaced by “ether.” The new law includes specific isomers of a compound under that compound’s heading.

Let’s assume, hypothetically, that in December 2004, a consumer had purchased a bottle of 1-testosterone, to randomly choose one out of many examples of products that are listed in the new law. Legal for him to have purchased? Absolutely. But once the law went into effect, the tablets were legally transformed into a federally controlled substance. Under 21 U.S.C. Sec. 844, possession of even one tablet is now a federal crime punishable by up to one year in jail for a first offense, and up to two years in prison for anyone with a prior drug conviction. Will we see an immediate flurry of prohormone arrests of consumers? Unlikely in the near future. While anyone who possesses the newly controlled products will be a drug criminal, for now the products are controlled only at the federal level (with very limited exceptions). This is important, since most steroid possession cases are brought in state courts, not federal courts. If the products aren’t scheduled by state laws, state courts can’t prosecute them as a controlled substance crime. Unless and until individual states pass legislation to make their laws consistent with the new federal law, which could take several months or even years, state authorities will have little incentive to go after prohormones.

On April 12, 2005, testimony was taken before the United States Sentencing Commission as to whether federal anabolic steroid offenses should be treated with stiffer punishments, such as by changing the way steroid quantities are calculated. My written and oral testimony against an excessive increase in punishments is accessible at www.steroidlaw.com. On March 27th, 2006, the Commission published notice of temporary “emergency” (i.e., immediate) amendments to the federal anabolic steroid sentencing guidelines. Henceforth (Congress will almost certainly approve them permanently in November), injectable and oral steroids will be quantified for punishment in a 1:1 ratio to other Schedule III drugs, resulting in a twenty-fold measurement increase for injectable steroid units and a fifty-fold increase for oral steroid units. One “unit” of oral steroids is now one pill, tablet or capsule (rather than 50). One “unit” of injectable steroids is now 0.5ml (rather than 10ml). Steroids in other forms (“e.g., patch, topical cream, aerosol”) will be reasonably estimated based on a consideration of 25mg as one unit. Additionally, sentencing enhancements will apply in cases involving distribution to “athletes” or where coaches use their positions to influence athletes to use steroids, as well as in cases involving “masking agents.” The new 1:1 ratio ignores fundamental differences between steroids and other Schedule III drugs. Other problems with the amendments include the lack of any reference to potency in oral or injectable steroids, potentially leading to black market adaptations to circumvent the amendment (e.g., the creation of high potency “mega-pills”) as well as the lack of any knowledge requirement involving distribution (e.g., via the Internet) to customers who may turn out to be athletes.

Congress apparently believed that the new law would curtail steroid use in athletics. While their hopes were well-intentioned, if past experience serves, such hopes seem doubtful. The original 1990 law was pitched to the public as a solution to steroids in sports. However, not only has steroid use by athletes continued, but judging from the unprecedented frenzy over the issue these ast years the problem of sports cheating appears much bigger than ever. What the law will do is put an end to most (although not all, at this point) legal steroidal dietary supplements, leaving black market steroids as the remaining option. While increased penalties for steroid possession will deter some, others will flock to the black market. Don’t be surprised if we see a dramatic rise in the use of illegal steroids. If the penalties are the same for steroid precursors and real pharmaceutical steroids, those willing to break the law will likely gravitate to the stronger products. Prohibition always has a cost. As usage is driven further underground, expect the health concerns to be compounded. Expect questionable purity to be a bigger problem than ever. Expect fewer steroid users than ever to seek physician monitoring or dosage review.

Most recently, Congress unanimously passed a bill (H.R. 6353, S. 980) to place strict controls on Internet pharmacies. Sponsored by Rep. Bart Stupak (D-MI) and Sen. Dianne Feinstein (D-CA), the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (accessible online at http://www.govtrack.us/congress/billtext.xpd?bill=h110-6353) is named for Ryan Haight, who died at 18 of a drug overdose in 2001 after he obtained Vicodin – not anabolic steroids – over the Internet. The bill was signed by President Bush on October 15, 2008, and became Public Law 110-425. Its most relevant amendments will take effect 180 days after the date of enactment of this Act (on or about April 13, 2009). The Act creates a new statute for offenses involving dispensing controlled substances by means of the Internet. The law attempts to clarify the laws regarding “rogue” online pharmacies and what constitutes a “valid prescription,” and also criminalizes certain advertising conduct in connection with such pharmacies. It also makes it easier for State Attorneys General to go after online pharmacies beyond their state borders.

However, the Act has far broader implications for steroid trafficking cases in general. Let’s look at the most significant changes. Most importantly, the law increases the maximum sentence for selling anabolic steroids (and other schedule III drugs) from 5 years to 10 years (up to 15 years if use of the drug causes death or serious bodily injury), as follows:

…in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 10 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not more than 15 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $500,000 if the defendant is an individual or $2,500,000 if the defendant is other than an individual, or both.

For those with a prior drug conviction, the maximum increases from 10 to 20 years (up to 30 years if use of the drug causes death or serious bodily injury), as follows:

If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not more than 30 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18, United States Code, or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both.

The increases also apply to possession with intent to sell, steroid importation and exportation crimes, and to the new Internet crimes. The law also increases penalties for crimes involving Schedule IV and V drugs.

The Act suggests that the new maximum penalties themselves should not be the “sole reason” for the United States Sentencing Commission to enhance the federal sentencing guidelines, as follows:

SENTENCING GUIDELINES- The United States Sentencing Commission, in determining whether to amend, or establish new, guidelines or policy statements, to conform the Federal sentencing guidelines and policy statements to this Act and the amendments made by this Act, should not construe any change in the maximum penalty for a violation involving a controlled substance in a particular schedule as being the sole reason to amend, or establish a new, guideline or policy statement.

That being said, it seems very likely that the Commission will conduct a fact-finding process to determine what if any amendments to the guidelines are called for based on the new law. The War on Steroid Trafficking is poised to launch into a higher gear in the years to come. Don’t be surprised if we see an invigorated anti-steroid enforcement crusade by the DEA if the sentencing guidelines are further amended. Also, expect individual states to review their own statutes and codes in an effort to “jump on the bandwagon” to take a harder line on anabolic steroids. Here are some examples of recent state legislative efforts and their status (as of 2006), with new bills appearing all the time:

— Alaska is one of only two states that have not added anabolic steroids to its schedule of controlled substances. Now pending in the Alaska State Legislature is Senate Bill 70, which mirrors the original federal steroid act of 1990 by proposing to add 27 anabolic steroids to Alaska’s schedule of controlled substances. However, by adopting the 1990 substance list rather than the new federal list from 2004, the legislation is already 15 years behind the times. The bill has been sitting in a Senate committee since April 5th, 2005.

— In California, Senate Bill 37 would require the California Interscholastic Federation to amend its constitution and bylaws to require that schools prohibit a student from participating in high school sports on and after July 1st, 2007, unless that student signs a pledge not to use “performance enhancing substances.” Furthermore, the parent or guardian of the student would have to sign a notification form regarding those restrictions. The bill would also prohibit schools from accepting sponsorships from manufacturers of those substances listed as performance-enhancing substances. Currently, the bill is in the Assembly Committee on Appropriations.

— Connecticut Senate Bill 1066 proposes that all high school athletes are to be tested for anabolic steroids during a physical examination that is required before the student can participate in an athletic activity. The bill also requires that information about anabolic steroids be included in any drug education program administered to all students. As of May 18th, 2005, this bill has been referred to the Joint Committee on Appropriations.

— On June 11th, 2005, Illinois Senate Bill 64 was signed into law as an amendment to section 27-23.3 of the Illinois School Code. The amendment requires school districts to provide instruction regarding the prevention of abuse of anabolic steroids for students in grades seven through twelve as well as all students who participate in interscholastic athletic programs. The law will go into effect on January 1st, 2006. In addition, Illinois House Bill 3554 proposes to require a student who participates in a school-sponsored or school-supported athletic or extra-curricular activity to submit to a drug test as a condition of participation. This bill was referred to the Senate Committee on Rules on May 5th, 2005.

— Pending in the Michigan State legislature is House Bill 4118, which proposes to render ineligible to participate in school athletics not only students who are found to use anabolic steroids, but also those that use certain dietary supplements, which have yet to be defined. The bill charges the Department of Community Health to formulate a list of banned “performance enhancing” substances and distribute it to both public and non-public schools. At this time the bill has been referred to the Senate Committee on Education.

— In Minnesota, pending bill H.F. 1020 proposes a change to the classification of anabolic steroids from a schedule IV controlled substance to a schedule III controlled substance resulting in increased penalties for the sale and possession of steroids. The bill was referred to the Minnesota House of Representatives Committee on Public Safety Policy and Finance on February 14, 2005.

— Also in Minnesota, pending bill H.F. 1103 would permit employers of professional athletes in Minnesota to request or require random drug testing for anabolic steroids. At this time, the bill has been postponed indefinitely.

— New Jersey Senate Bill 500 will require school districts to develop a student athlete drug-testing program for grades nine through twelve. All student athletes in grades nine through twelve will have to consent to random drug testing in order to participate in scholastic athletic activities. As of June 30th, 2005, the bill has passed in both the New Jersey State Senate and Assembly and awaits the Governor’s signature. If signed, the bill will take effect immediately.

— In New Mexico, pending House Bill 912 requires each school district, beginning in the 2005-2006 school year, to adopt and maintain a policy that prohibits the use of anabolic steroids by students and provides random testing for steroids of students participating in interscholastic athletics governed by the New Mexico Activities Association. The bill was referred to the House Committee on the Judiciary on February 11th, 2005.

— Also, in New Mexico, Senate Bill 843 mirrors the clause of House Bill 912 requiring school districts to adopt a policy testing high school athletes for steroids but also expands to prohibit professional boxers and wrestlers in professional contests from using steroids and requires the development of testing protocols. Bill 843 was referred to the New Mexico House Committee on Appropriations and Finance.

— Currently there are a number of bills regarding anabolic steroids pending in The New York State Assembly. Bill A04770, if passed, would require random urine testing of all professional athletes that play within New York State for anabolic steroids. The bill was referred to the Committee on Health on February 14th, 2005.

— Pending New York Assembly Bill A3836 would specifically require the random testing of Major League Baseball players for the use of anabolic steroids. This bill has been held for consideration in the subcommittee on health since May 10th, 2005.

— Also pending in the New York State Assembly is Bill A01393, proposing the establishment of a steroid testing program for both public and non-public school athletes. The bill also proposes to increase the penalty for the criminal sale of anabolic steroids to minors. This bill has passed in the New York State Senate and has been referred to the New York State Assembly Subcommittee on Education on June 21st, 2005.

— Also pending is New York State Assembly Bill A08517, which seeks to prevent any public or private high school athlete from participating in a scholastic sports activity without first signing an agreement not to use steroids. Also, a legal guardian of the scholastic athlete would be required to sign an acknowledgement form stating that anabolic steroids are illegal if not prescribed by a doctor for a legitimate medical purpose. This bill was referred to the New York State Assembly Subcommittee on Education on May 26th, 2005.

— Besides the pending steroid related legislation, New York State Assembly Bill A0437 would ban school district employees from selling, marketing, providing, distributing, endorsing or recommending the use of certain dietary supplements. The bill would also require schools to warn students of the risks associated with certain supplements. A0437 was referred to the Subcommittee on Education on February 9th, 2005.

— School employees in Oregon may soon become criminally liable for recommending “performance enhancing” dietary supplements to students. Oregon Senate Bill 6 proposes to prohibit school administrators, teachers, employees and volunteers from promoting, suggesting, or supplying performance enhancing supplements to students. Violators would face a maximum possible sentence of three months imprisonment, a five hundred dollar fine, or both. The bill has already passed in the State Senate and was referred to the House Committee on Education on June 3rd, 2005.

— Rhode Island House Bill 6277 was signed into law as Public Law 246 on July 8th, 2005. The law prohibits the sale, distribution or promotion of “performance enhancing dietary supplements” by teachers, athletic directors, sports coaches, or other school officials or employees. A “performance enhancing dietary supplement” is defined as “a dietary supplement designed or marketed to improve athletic performance or physical development by promoting body or muscle growth, stimulating or altering the cardiovascular system or the central nervous system, altering the perception of pain or otherwise enhancing athletic performance or physical development above levels that would be anticipated under normal conditions with appropriate nourishment.”

— Texas House Bill 3563 was signed into law on June 18th, 2005. The bill directs the University Interscholastic League (“U.I.L.”) to develop a comprehensive steroid education program for students, coaches and parents. Furthermore, the U.I.L. must administer a survey to determine the extent of steroid abuse among Texas high school students and then conduct a study to track the efficiency of the education program. The U.I.L. must then report its findings to the Texas legislature, including a model for a random steroid testing program. If the legislature determines from the report that steroid use among high school students has not significantly declined, the state will direct the U.I.L. to initiate the random steroid test. This law will take effect at the beginning of the 2005/2006 scholastic year.

— On July 1st, 2005, in Virginia, HB 2832 became effective as Section 22.1-276.3 and Section 22.1-292.2 of the Virginia Code. The changes in the Code provide that the Virginia High School League establish rules requiring that a public school student athlete who uses steroids during the training period immediately proceeding or during a sports season of a school athletic team on which he or she is a member, be ineligible to participate in interscholastic competition for two years. Moreover the Code requires the Board of Education to suspend or revoke the administrative or teaching license of any person who knowingly and willfully sells, administers, or procures anabolic steroids or causes these drugs to be procured.

While states legislators are crafting new laws to address athletic steroid use, they are overlooking the opportunity to harmonize their steroid laws with the new federal statute. Right now, state laws are quite a hodgepodge, and the definition of what constitutes an “anabolic steroid” varies state by state. As broader laws go into effect, reasonably expect state troopers and local police to ramp up their enforcement efforts against steroid users. Remember, as detailed in Legal Muscle, that most steroid possession cases have been prosecuted in state courts anyway.