THE STEROID SCARE:

CONGRESS'S IRRATIONAL AND ARBITRARY ANABOLIC STEROID LAWS

BY ALAN REID MANN*

“Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent...The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”1

-Justice Louis D. Brandeis

I. INTRODUCTION

In 1990 the US Congress passed the Anabolic Steroids Control Act which effectively

placed steroids as a schedule III controlled substance. The events leading up to, as well as those

included in the passage of this legislation, suggest a Congressional purpose void of rationality.

As a result of the legislation steroids have been criminalized and extremely harsh penalties have

been established for those who illegally poses or use steroids. This paper argues that (1) By

enacting this law Congress has acted irrationally and arbitrarily and thus the legislation fails the

rational bases standard; (2) Congress circumvented an established administrative drug process

resulting in bad law and poor public policy; and (3) there are more effective and rational methods

to achieve Congress's purposes of regulating anabolic steroids. The first part of this paper will

discuss a brief history of steroids, their pharmacology2, and the legislative history leading up to

their criminalization in 1990. The second part will identify why current steroids laws are

irrational and arbitrary. The third part will discuss public policy issues, and lastly address better

means for regulating steroids.

* Juris Doctor Candidate, 2013 Florida Coastal School of Law.1 United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting).2 The characteristics or properties of a drug, especially those that make it medically effective.

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II. THE EFFECTS OF STEROIDS

There are various types of steroids. The type at issue here are specifically Anabolic

Androgenic Steroids (AAS), which are synthetic versions of the male sex hormone testosterone.3

Steroids may be administered in two ways: orally in the form of pills or liquid, or through

intramuscular injection. Testosterone has three main effects on the body; (1) it is responsible for

the secondary sex characteristics of males, an “androgenic effect”; (2) it produces an “anabolic

effect” 4; and (3) prevents catabolism.5 6 Thus, steroids have a variety of legitimate medical

uses,7 such as increasing lean muscle mass, and improving the immune system of HIV/AIDS

patients.8 Steroids have been used in the treatment of breast cancer,9 and to treat a variety of

ailments including endometriosis, irregular childhood growth, postoperative recovery, poor

calcium retention, and terminal illnesses.10 While there are side effects to steroids, as there are

with any medication, recent studies indicate these side effects have been exaggerated11 with

minimal scientific data showing physiological damage from their usage.12 It has been suggested,

given the current available scientific data, a court would not be able to conclusively establish

significant medical harm from steroid use.13

3 Robert Voy, M.D., Drugs, Sport, and Politics 13 (1991). 4 Define Anabolic or Anabolism - & Herbert A. Haupt, Anabolic Steroids and Growth Hormone, 21 Am J of

Sports Medicine 468 (1993).5 Catabolism is the internal breaking down of muscle tissue. 6 John Burge, Legalize and Regulate: A Prescription For Reforming Anabolic Steroid Legislation, 15 Loy. L.A.

Ent. L.J. 33 (1995).7 Jane J. Robertson, et al., Medical and Nonmedical Uses of Anabolic-Androgenic Steroids, 264 JAMA 2929

(1990). 8 Peter B. Kraska, Charles R. Bussard & John J. Brent, Trafficking in Bodily Perfection: Examining the Late-

Modern Steroid Marketplace and Its Criminalization, 27 Just. Q. 159 2010. 9 Burge, supra note 6 at 36.10 Robert C. Hickson, et al., Adverse Effects of Anabolic Steroids, Med. Toxicol Adverse Drug Experiment

4(4):254, 258-60 (1989). 11 Supra note 8 at 160.12 Philip Jacques, Is Congress' Latest Effort to De-Juice Professional Sports Unconstitutional?, 6 DePaul J. Sports

L. & Contemp. Probs. 97 (2010). 13 Id. at 114.

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Medical research has identified the main pharmacology of steroids on the body in that:

1. Steroids increase production of proteins by increasing the production of RNA

which is the nucleic acid that carries the instructions for creating proteins.14 This

increase creates ample availability of protein for use by skeletal muscle tissue to

repair and rebuilding muscle tissue.

2. Steroids increase the retention of nitrogen, one of the key amino acids in creation

of protein.15 Thereby, increasing nitrogen availability for use in accelerating the

metabolic process state above.

3. Steroids stimulate the release of endogenous16 growth hormones. Growth

hormones exhibit significant anabolic effects. 17

4. Steroids reduce symptoms of fatigue by suppressing or antagonizing the stress

hormone cortisol; thus, allowing an individual to train harder, for longer periods,

and more frequently. This increase of intensity in training results in a greater

overall stimulus to the musculature of the body.18

These pharmacological effects indicate that steroids in and of themselves do not literally

cause one to grow muscle, a common misconception. Rather they facilitate the creation of a

cellular environment which is conducive to muscle growth; which then must be induced by a

stimulus such as intense weight training in order to produce the growth. This means that steroid

use without significant and specific physical training will not cause excessive muscle growth.

14 V. Rogozkin, Metabolic Effects of Anabolic Steroid on Skeletal Muscle, 11 Medicine and Science in Sports 160, 161 (1979).

15 Jon C. Wagner, Abuse of Druges Used to Enhance Athletic Performance, 46 Am J of Hospital Pharmacy 20059, 2062 (1989).

16 Endogenous: produced or synthesized within the organism or system i.e. an endogenous hormone, http://www.merriam-webster.com/dictionary/endogenous (last visited April 5, 2012).

17 Haupt, supra note 4. 18 Haupt, see supra.

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III. THE ANABOLIC STEROID CONTROL ACT LEGISLATIVE HISTORY

Steroid development and usage can be traced back to the 1950's.19 However, it was not

until the summer of 1988 that steroids became a topic of concern. During the 1988 Seoul

Summer Olympic Games, Canadian sprinter Ben Johnson20 was stripped of his gold medal after

testing positive for the anabolic steroid stanazolol.21 Because of this steroids underwent vigorous

scrutiny by the mass media.22 A few years later NFL all-star Lyle Alzado,23 admitted to using

steroids; when he was diagnosed with brain cancer claiming that the cancer resulted from steroid

use. Lyle Alzado became the media darling, and poster child for the purported life ravaging

effects of steroids.24 However, there was never any documented medical evidence supporting his

assertion.25 It was amid these events, and the subsequent public outcry, Congress felt persuaded

to take action on what was called a “national crisis”.26 Therefore Congress conducted multiple

committee hearings on steroids, which ultimately culminated in the passage of the 1990 Anabolic

Steroid Control Act.

19 Jeffrey A. Black, The Anabolic Steroids Control Act of 1990: A Need for Change, 97 Dick. L. Rev. 131 (1993).20 At this time Ben Johnson was literally the “Fastest Man” in the world. In 1987 he set the world record in the

100m sprint during the World Championship in Rome where he beat American track star Carl Lewis. Prior to this win Johnson had endured seven consecutive losses behind Lewis. Because these two would go on to compete against one another in the 1988 Seoul Olympics they became the focus of the media. See http://www.dailymail.co.uk/sport/othersports/article-1023170/EXCLUSIVE-Ben-Johnson-reviled-drugs-cheat-history-claims-victim-American-conspiracy-Now-says-evidence-tape-Deluded-fantasist-whistleblower--decide.html#ixzz1sUrV6hnB

21 Adrian Wilairat, Faster Higher, Stronger? Federal Efforts to Criminalize Anabolic Steroids and Steroid Precursors, 8 J. Health Care L. & Pol'y 377 (2005).

22 Id. at 381.23 Mike Puma, Not the size of the dog in the fight, available at

http://espn.go.com/classic/biography/s/Alzado_Lyle.html Alzado palyed in the NFL for 15 seasons, and was twice named “All-Pro”. He retired claiming injury attributable to steroids use. Alzado stated he was certain that steroid use was the cause of his cancer.

24 Dave Meltzer, The Sham is a Sham, Sports Illustrated, July 8, 1991, at 9, 10. 25 Shelly Smith, I'm Sick and I'm Scared, Sports Illustrated July 8, 1991 at 21. Lyle Alzado subsequently died from

a brain tumor he attributed to steroids use on May 14, 1992 at age 43. Maryann Hudson, Lyle Alzado is Dead at 43 of Cancer, L.A. Times, May 15, 1992 at C-1.

26 Norma M. Reddig, Anabolic Steroids: The Price of Pumping Up!, 37 Wayne L. Rev. 1647, 1664 (1991).

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Prior to the 1988 Seoul Olympic scandal the topic of steroid use was already under

government consideration.27 In 1987 the Attorney General had officially28 requested a scientific

and medical evaluation by the Secretary of Health and Human Services (HHS), and the Drug

Enforcement Agency (DEA) in order to determine whether anabolic steroids met the required

criteria to be classified as a controlled substance.29 Prior to 1990 steroids had been approved by

the Food and Drug Administration (FDA)for treatment of non-disease conditions,30 and were

regulated under the Food Drug and Cosmetic Act as legitimate prescription medications.31

Additionally, and in association with these departmental investigations by the HHS and DEA,

both the FDA and the National Institute on Drug Abuse (NIDA)32 also evaluated anabolic

27 Rick Collins, J.D., Legal Muscle Anabolics in America, at 4 (2002). 28 21 U.S.C. § 811(b) (2010). Which in pertinent part states: The Attorney General shall, before initiating

proceedings under subsection (a) of this section to control a drug or other substance or to remove a drug or other substance entirely from the schedules, and after gathering the necessary data, request from the Secretary a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a controlled substance. In making such evaluation and recommendations, the Secretary shall consider the factors listed in paragraphs (2), (3), (6), (7), and (8) of subsection (c) of this section and any scientific or medical considerations involved in paragraphs (1), (4), and (5) of such subsection. The recommendations of the Secretary shall include recommendations with respect to the appropriate schedule, if any, under which such drug or other substance should be listed. The evaluation and the recommendations of the Secretary shall be made in writing and submitted to the Attorney General within a reasonable time. The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance.

29 21 U.S.C. § 811(c) (2010) Puts forth a list of factors to be considered in making a determination of whether or not a drug should be come a controlled substance. In part it states: In making any finding under subsection (a) of this section or under subsection (b) of section 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:(1) Its actual or relative potential for abuse.(2) Scientific evidence of its pharmacological effect, if known.(3) The state of current scientific knowledge regarding the drug or other substance.(4) Its history and current pattern of abuse.(5) The scope, duration, and significance of abuse.(6) What, if any, risk there is to the public health.(7) Its psychic or physiological dependence liability.(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

30 Black, supra note 19 at 140.31 Black, supra note 19 at 133.32 The NIDA was established by the Federal government in 1974 for the purpose of scientific research, treatment,

prevention, and data collection on drug abuse. In 1992 it joined with the National Institutes of Health, becoming part of the U.S. Department of Health and Human Services. The mission of the NIDA is, “[I]s to lead the Nation in bringing the power of science to bear on drug abuse and addiction.” See

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steroids. Ultimately both the DEA and HHS concluded that steroids did not possess the requisite

characteristics to be classified as a controlled substance. Furthermore both the FDA and NIDA

found steroids did not:

“[P]ossess psychoactive effects comparable to those substances currently scheduled...

[and] did not recommend any administrative action to control steroids under the CSA”33

subsequently, no further action was taken until 1988 when the Seoul Olympic Scandal news

broke and Congress chose to act.

However, in 1987 then Senator Joseph Biden introduced a bill targeting the trafficking of

anabolic steroids.34 This bill became part of the Anti-Drug Abuse Act of 1988 signed into law by

President Ronald Reagan.35 The new law did not schedule steroids as a controlled substance, but

allowed for prosecution of those found illegally dispensing steroids.36 Subsequently under the

new act a task-force of agents from the Department of Justice (DOJ), the FDA, and the Federal

Bureau of Investigation (FBI) was created, and responsible for 175 steroid trafficking

convictions, with 120 more individuals facing steroid related charges.37

Despite the success of this task-force, due to their empowerment by the new steroid laws

under the Anti-Drug Abuse Act, and the current regulation of steroids under the FDCA certain

members of Congress felt steroids still needed to be further restricted and regulated. Thus the

first of many Congressional hearings on steroid abuse was held in July of 1988.38 In these

hearings the earlier findings of the FDA, HHS and the DEA in opposition to scheduling steroids

http://www.nih.gov/about/almanac/organization/NIDA.htm33 Burge, supra note 6 at 42. 34 Collins, supra note 27.35 Id.36 Id. 37 Rorie Sherman, "The Big Push," 40 Nat'l L.J., 40, 42 (1992); supra note 6 at 44. 38 Legislation to Amend the Controlled Substances Act (Anabolic Steroids): Hearings on H.R. 3216 Before the

SubComm. on Crime of the House of Representatives Comm. on the Judiciary, 100th Cong., 2d Sess. (1988).

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as controlled substances, were placed on record along with the testimony of the American

Medical Association (AMA) which concluded steroids were a poor fit for regulation under the

Controlled Substance Act.39 Additionally the DEA, the agency responsible for enforcement for

this type of legislation testified:

“The CSA [Controlled Substances Act] was designed to encompass drugs that are abused

exclusively for psychoactive effects and are characterized either as narcotics, stimulants,

depressants, or hallucinogens. In this respect, the law is poorly suited to the steroid drugs.

It is clear, based on the legislative history, that the Congress did not intend to encompass

them within it. An amendment to the CSA to control the steroids to provide for both

criminal and regulatory controls would significantly alter DEA's mandate and purpose

and would further strain the agency's resources.”40

Congress chose to follow these recommendations until development of another

alternative.41 Yet, less than a year later in 1989 The Senate Judiciary Committee chaired by

Senator Biden felt it necessary to conduct their own hearings on anabolic steroids which focused

on the use of steroids in collegiate and professional sports.42 Once again the DEA, HHS, FDA,

and AMA all maintained their original testimony and findings that steroids should not be listed as

controlled substances. Furthermore the AMA officially stated:

“The medical facts do not support scheduling anabolic steroids under the CSA. Anabolic

steroids have an accepted use in the treatment of several medical conditions, including

certain anemias, hereditary angioedema, and breast cancer. Moreover, anabolic steroids

39 Burge, supra note 6 at 42. 40 Anabolic Steroids Control Act of 1990: Hearings on H.R. 4658 Before the Subcomm. on Crime of the House

Comm. on Judiciary, 101st Cong., 2nd Sess. (May 17, 1990). [Hereinafter Hearings on H.R. 4658].41 Burge, supra note 6 at 43.42 Steroids in Amateur and Professional Sports – The Medical and Social Costs of Steroid Abuse: Hearing Before

the Senate Comm. on the Judiciary, 101st Cong., 1st Sess. (1989).

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can be used safely under medical supervision.... Moreover, anabolic steroids should not

be scheduled under any other schedule of the CSA since abuse of the drugs does not lead

to physical or psychological dependence as is required for scheduling under the Act.43

The voice of the AMA, Dr. Edward Langston further pointed out that other more effective

measures existed, specifically the Anti-Drug Abuse Act of 1988, that allowed for the prosecution

of steroid traffickers.44

It was apparent that Congress was not getting the results they wanted in their quest to list

steroids as a controlled substance; because their vigilance is evident in the undertaking of yet

another hearing by the Senate Judiciary committee in March of 1990, less than one year later

from the last hearings.45 This time Congress knowing the opinion of the medical, scientific, and

regulatory experts heard testimony from professional and collegiate athletes, coaches, and

trainers which focused on the problem of “cheating in sports”.46 Considering the more than 500

pages of transcripts from these hearings and the constant use of terms like, “cheating” it is

apparent that Congress's intent was to find alternative evidence or means to justify scheduling

steroids as a controlled substance as means to solve an “athletic cheating” problem.47

During these hearings the past findings by the DEA, FDA, HHS, NIDA, and AMA, were

dismissed and at times attacked and labeled as, “ridiculous”.48 Scientific and medical Dr. Charles

Yesalis, who is considered one the preeminent experts on anabolic steroids, was at one point

43 Id.44 Collins, supra note 27 at 7.45 Abuse of Steroids in Amateur and Professional Athletics: Hearings Before the Subcomm. on Crime of the House

Comm. on the Judiciary, 101st Cong., 2d Sess. (1990). 46 During Senate debate Senator Biden stated, “What is troubling about steroid use by young athletes is that it is

cheating. Athletes cheat themselves, they cheat their colleagues, and they cheat society.” S16615, 101st Cong., 2d Sess. (Oct. 24, 1990); Congress' main concern at the hearings seem directed at solving this problem of cheating; Burge, supra note 6 at 45.

47 Supra note 43; Collins, supra note 27 at 10.48 Collins, supra note 27 at 10.

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derided by the committee for his objective testimony stating that there are few actual medical

dangers caused by steroids.49

The final hearing on the issue of steroids was held on May 17, 1990, with Congress

introducing the “Anabolic Steroids Control Act of 1990” (ASCA). was held, with Congress

bringing the similarly named bill to the table.50 In this final hearing on the proposed bill none of

the previously mentioned agencies were consulted nor were their findings incorporated into the

record. The bill was passed and subsequently signed into law effectively scheduling anabolic

steroids as a controlled substance.51 By doing so, “Congress circumvented the forty-year-old

administrative drug scheduling process and thereby set a drug regulatory precedent.”52

In 2004 Congress amended the 1990 ASCA and President Bush signed in to law The

Anabolic Steroid Control Act of 2004. This expanded the 1990 law by adding a number of then

legal dietary supplements known as “precursors”53 to the list of controlled substances, and

broadened the definition of “anabolic steroid” so that a suspect compound need not even be

anabolic to be considered a steroid.54 The 2004 act was motivated by an event similar to the Ben

Johnson Olympic Scandal. This time it was the use of the then legal steroid precursor

androstiendione, commonly known as “andro” by Major League Baseball (MLB) star Mark

McGwire.55 In the hearings for the passage of the 2004 amendment, the record indicates

49 Upon Dr. Yesalis stating his professional opinion committee member Rep. Dan Lungren quipped: “I don't know what I am supposed to get out of that except maybe I should avoid bald people with beards.” Dr. Yesalis at the time was bald with a beard. Collins, supra note 27 at 4.

50 Hearings on H.R. 4658, supra note 40.51 Id. 52 Kimani Paul-Emile, Making Sense of Drug Regulation: A Theory of Law For Drug Control Policy, 19 Cornell J.

L. & Pub. Pol'y 691, 717 (2010). 53 Precursor or prohormone is a substance that when taken orally may be converted in the body by using certain

naturally present enzymes into a anabolic steroidal compound. The Journal of Clinical Endocrinology and Metabolism, at http://jcem.endojournals.org/content/90/9/0.2.full (last visited March 31, 2012).

54 Rick Collins, J.D., Legal Muscle Supplement, (2008), available at: www.steroidlaw.com/page.php?pageID=51&noupdate=1

55 Wilairat, supra note 21 at 381.

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Congress was concerned with the use of these precursors by professional athletes, and the

message it sent to children.56 In contrast to the 1990 steroids hearings, Congress in these

hearings focused on the risk and dangers posed to teenagers and children by these precursors.

However, just like the 1990 hearings, many assertions made by Congress about the dangers, and

rate of use of these supplements by youth lacked any supportive evidence. (These issues will be

more thoroughly addressed in part VI). This legislative history provides the context under which

the rest of this paper will present the argument that Congress has created irrational and arbitrary

laws regarding anabolic steroids.

IV. THE INTENT OF ANABOLIC STEROID LEGISLATION IS IRRATIONAL AND

ARBITRARY

Congress has the power to regulate steroids under the Commerce Clause,57 thus a statute

enforced under this clause must be tested under the rational basis standard.58 To prove a statute

unconstitutional under this standard, it must be shown that by enacting the statute Congress acted

irrationally and arbitrarily or the statute is not rationally related to a legitimate State interest 59.

This paper argues that when Congress enacted the 1990 ASCA and amended in 2004 they acted

irrationally and arbitrarily. In addition to the act not being rationally related to the stated

government purpose of preventing cheating in sports, causing the 1990 ASCA and the 2004

amended version not to be constitutionally sound law.

56 “The lines of fair play are blurred by the prevalence of steroid precursors...While the integrity of sports is significant, the use of steroids in sports would not be of such profound concern if it did not impact children so drastically.” Anabolic Steroids Control Act of 2004: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security, On the Comm. on the Judiciary House of Representatives on H.R. 3866, 108th Cong., 2d Sess. (March 16, 2004). [Hereinafter Hearings on H.R. 3866]. (Statement of John E. Sweeney, Representative from State of New York.)

57 United States v. Kinsey 843 F.2d 383, 393 (9th Cir. 1988), cert. denied, 487 U.S. 1223 (1988).58 Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955).59 Vance v. Bradley, 440 U.S. 93, 97 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. at 312 (1976);

Malmed v. Thornburgh, 621 F.2d 565, 573 (3d Cir.), cert. denied, 449 U.S. 955 (1980).

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The statutory language of the 1990 law clearly illustrates Congresses intent to use the

legislation in order to target coaches, trainers, and athletes60 in an attempt prevent steroids use by

these individuals, for the purpose of solving an athletic cheating problem in professional and

amateur sports.61 In the hearings before the Senate Judiciary Committee, in which then Senator

Biden was presiding, the question of why Congress felt it necessary to focus on steroids rather

than other drugs was posed. Senator Biden explained:

“[T]he thing that disturbs me most62 about this issue beyond the health effects, as bad as

they are, is this notions that we are undermining the very raison d' etre, the very reason

that sports play such a major role in America...”63

Here Senator Biden's statement suggest that any health risks are a secondary concern, and the

need to schedule steroids is because of the effects they have on the intrinsic values of sports.

Furthermore, Senator Biden stated:

“[S]ports offers a chance to learn some of society's most basic values. Those values

includes, among others, dedication, drive, and sportsmanship. But the use of steroids

threatens to undermine these values.”64

Here, Senator Biden asserts steroids undermine, these values. Which in turn make steroids in and

of themselves a moral wrong, and therefore must be controlled, because anything that may

60 H.R. 4658 101st Cong., 2d Sess, 136 Cong. Rec. H8758-02 (1990). The bill states in part: (b)(1) Whoever, being a physical trainer or adviser to an individual, endeavors to persuade or induce that individual to possess or use anabolic steroids is in violation of subsection (a),...(2) As used in this subsection, the term 'physical trainer or adviser' means any professional or amateur coach, manager, trainer, instructor, or other such person , who provides any athletic or physical instruction, training, advice, assistance, or other such service to any person.

61 See Hearings on H.R. 4658, supra note 40; Burge, supra note 6 at 45. The very title of the hearings evidence the purpose of identifying and stoping steroids use by professional and amateur athletes, supra note 39 and 42.

62 Emphasis added.63 Supra note 42.64 S 16615, 101st Cong, 2d Sess. (Oct 2, 1990), in 136 Cong Rec 147 (Oct 24, 1990).

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jeopardize these values is a danger to society. The proponents of the ASCA were motivated to

“protect society as a whole” and the “...morals of America's youth.”65 Yet, there seems to be no

rational relation between this motivation and the stated intent and purpose of the law, which is to

stop cheating within and protect the integrity of professional sports.66

Considering the application of this law to the purposes of health, safety, and welfare as

required by a rational basis review, the act is irrational and arbitrary because it does nothing to

achieve any of these three purposes. Since Congress was concerned with stopping the problem of

cheating in professional and amateur sports, they needed to show how this cheating problem

affected the health, safety, or welfare of the Nation. Here Congress has not presented any

evidence which concretely proves that cheating in sports due to steroid use significantly impacts

the health, safety or welfare of the Nation. While the congressional record contains limited

statements about the purported health risks of steroids use,67and the rate of use amongst teens,

there were no findings with regards to the key issue of athletic cheating and its effects upon the

health, safety or welfare of the public.

The purpose and intent of this act is found to be no more than an irrational and arbitrary

imputation of morals and values upon society. In this case certain members of Congress felt it

necessary to decide that steroid use enables cheating (specifically within the ranks of

professional and amateur athletes).68 Congress reasoned that cheating by athletes is wrong

because it has negative moral or societal implications, and therefore legislation is necessary to

schedule steroids as controlled substances in order to save society from the grave effects of

65 George Fan, Anabolic Steroid and Human Growth Hormone Abuse: Creating an Effective and Equitable Ergogenic Drug Policy, U. Chi. Legal F. 439, 457 (1994).

66 Paul-Emile, supra 52 at 105, 107.67 Jacques, supra note 12.68 Supra note 40; supra note 42; supra note 45.

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cheating in professional sports; despite all medical and scientific evidence in opposition to such

reasoning.

The amending of the 1990 ASCA resulting in the 2004 Anabolic Steroid Control Act

evolved from the same arbitrary and irrational lawmaking. The irrationality and arbitrariness of

the 2004 act is most evident in the altered definition of anabolic steroids. Under the 1990 law

the definition of anabolic steroids was any, “drug or hormonal substance that promotes muscle

growth in a manner pharmacologically similar to testosterone”69, whereas the 2004 act removed

the “promotes muscle growth” qualifier as to read, “any drug or hormonal substance, chemically

and pharmacologically related to testosterone”.70 While this change is subtle, it is significant. In

the previous language, in order for a substance to meet the requirement of an anabolic steroid it

must actually possess “anabolic”71 or muscle promoting effects. Now however, the current

language removes any requirement of proving the compound indeed has anabolic properties.

This means so long as a compound is chemically and pharmacologically related to testosterone it

may be scheduled as a controlled substance.

In other words, all compounds of a certain chemical structure so long as they are remotely

chemically related to anabolic steroids, will be considered anabolic steroids, even if they do not

posses the anabolic or pharmacological properties which medically define an anabolic steroid. 72

69 21 U.S.C. § 802(41)(A) (1990); in part states: (41)(A) The term "anabolic steroid" means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, corticosteroids, and dehydroepiandrosterone), that promotes muscle growth, and includes--

70 21 U.S.C. § 802(41)(A) (2010); in part states:(41)(A) The term "anabolic steroid" means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, corticosteroids, and dehydroepiandrosterone), and includes--

71 Supra note 4.72 This new definition is analogous to arguing all breeds of dogs of the K-9 family so long as they are genetically

similar to poodles will be considered poodles even if they do not have the required genetic properties to actually be a poodle. Or in other words as long as it is some kind of dog similar to a poodle we will consider it a poodle regardless of whether it really is or not.

13

By changing this definition it removes the burden from the Attorney General to prove that a

compound claimed to be a steroid actually has anabolic or muscle promoting properties. The

purpose of this alteration was to give the Attorney General power to add any new compound to

the current list of anabolic steroids without having to go through the scientific process to show

that the compound is a valid anabolic steroid so long as it is chemically related to testosterone. 73

This revised definition is demonstrative of arbitrary and irrational legislating because it allows

the Attorney General to schedule substances as anabolic steroids with sweeping discretion by

permitting a compound to be classified as an anabolic steroid absent any proof whether it is

anabolic or not. Additionally, this legislation is irrational because the vague definition of steroids

raises issues of notice, vagueness, intent, and statutory construction.74

V. CONGRESS ACTED IRRATIONALLY IN PASSING ANABOLIC STEROID

LEGISLATION

This section identifies three ways in which Congress acted irrationally when they passed

the 1990 ASCA. First, they ignored the recommendations of all governing authorities on the

issue; next Congress placed the drug into a classification, even though the drug fails to exhibit

certain effects required by law, and finally by legislating in this manner they circumvented the

administrative drug process.

Congress's first arbitrary decision is evident as they acted in direct opposition the the

recommendations of all governing health, medical, and scientific regulatory agencies.

Traditionally, the legislature and the courts have deferred this type of judgement to the medical

communities about what is best, and how to act on issues of this nature.75 Therefore Congress

73 Rick Collins, Changing The Game: The Congressional Response To Sports Doping Via The Anabolic Steroid Control Act, 40 New Eng. L. Rev. 753, 758 (2006).

74 Id.75 Black, see supra note 19 at 97.

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acted irrationally when they departed from this long accepted practice by rejecting the accepted

authorities informed recommendations in order to piece together their own findings, regardless

of the medical facts. It is hard to accept the justification as rational that the issue of cheating in

professional and amateur sports was so pervasive and damaging to society that it warranted

Congress to ignore all recommendations of the FDA, HHS, DEA, NIDA, and AMA.76

Next Congress acted irrationally when under the 1990 ASCA and the 2004 amended

version anabolic steroids have been scheduled as a class III controlled substance though they do

not posses the requisite characteristics.77 For a drug or medicine to be placed in this schedule it

must have: A) a potential for abuse less than the drugs or other substances in schedules I and II,78

B) that is has a currently accepted medical use in treatment in the United States, and C) abuse of

the drug may lead to moderate or low physical dependence or high psychological dependence.79

In considering these three requirements Congress acknowledged that steroids could not be

scheduled under either A or B. However the issue of high psychological dependence was their

objection, and this qualification became the mechanism to achieve their goal. Not being able to

argue the validity of A and B, Congress attempted to show steroids have a high tendency to

create a psychological dependence; despite that in earlier hearings on the issue the FDA had

formally stated steroids did not: “posses psychoactive effects comparable to those substances

currently scheduled...”.80 Yet, Congress simply ignored this recommendation and introduced the

testimony of doctor Kenneth B. Kashkin M.D. His testimony suggested steroids create

76 Hearings on H.R. 4658, supra note 40.77 21 U.S.C. § 812(b)(3) (2010).78 21 U.S.C. § 812. Schedule I drug examples: Heroin, Marijuana, GHB. Schedule II drug examples: Cocaine,

Oxycodone, Morphine. These scheduled drugs have strong psychoactive effects. 79 Supra note 77.80 Hearings on H.R. 4658, supra note 40.

15

withdrawal symptoms comparable to those of the scheduled I and II opiate drugs.81 However,

four months prior to this testimony Dr. Kashkin published an article in the Journal of the

American Medial Association (JAMA) which stated:

“The anabolic steroid-addiction hypothesis is speculative and needs to be

confirmed by scientific investigation...[W]e also conclude that anabolic steroid

abusers need to be treated rather than tested and penalized.”82

Congress felt this single contradicted statement was conclusive enough, despite the FDA's

official recommendation to determine that steroids have the potential for “high psychological

dependence”, and therefore needed to be scheduled as a controlled substance. Evidence on this

issue is still limited, and studies have shown it is doubtful steroids have a potential for high

psychological dependence.83 Even, Gary Wadler, a member of the World Anti-Doping Agency

admits there is a lack of information on the subject.84 These facts support the reasoning Congress

acted irrationally when they concluded steroids may lead to a high psychological dependence.

This conclusion by Congress then justified the scheduling of anabolic steroids as a schedule III

controlled substance, despite scant evidence these substances meet the requirements or exhibit

the properties required under the law.85

Finally, Congress acted irrationally by legislating in this manner because they effectively

circumvented the forty-year-old administrative drug scheduling process and thereby set a (poor)

81 Hearings on H.R. 4658, supra note 40; (statement of Kenneth B. Kashkin M.D.).82 Kenneth B Kashikin, M.D. & Herbert D. Kleber, M.D., Hooked on Hormones? An Anobolic Steroids Addiction

Hypothesis, 262 JAMA 3166, 3170 (19889). 83 Charles Yesalis, a steroid expert questions the theory of “roid rage”. Yesalis CE, Bahrke MS: Anabolic-

androgenic steroids: Incidence of Use and Health Implications, 5, 5 (2005).84 Drake Bennett, Are Steroids as bad as we think they are?, Boston Globe, Dec. 12, 2004, available at

http://www.boston.com/news/globe/ideas/articles/2004/12/12/are_steroids_as_bad_as_we_think_they_are/.85 Supra note 84.

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drug regulatory precedent.86 For more than fifty years steroids were regulated under a “Public

Health Regulatory Regime”.87 This method encouraged open disclosure and dissemination of

information by using the appropriate governing bodies such as the FDA and HHS to enure public

safety and welfare in relation to drugs and medication. Congress in circumventing this model

has placed steroids into the “Criminal Regulatory Regime”.88 For a drug to be placed in the

criminal regulatory regime, the drug must be considered to do more than pose a threat to public

health or safety, as it must be perceived to violate fundamental moral values.89 In order to move

steroids into the criminal model Congress focused upon the 1988 Seoul Olympic scandal, and the

associated steroid hysteria climate90 of the time by using the “morally” charged issue of cheating

86 Paul-Emile, supra note 52 at 717.87 Paul-Emile, supra note 52 at 708. Here the author explains “The Public Health Regulatory Regime” as follows,

“The public health regulatory regime governs through science, which is more than just a metaphor; it is, rather, a specific and penetrating form of governance. From the FDA and National Institute on Drug Abuse to the Office of National Drug Control Policy and the National Institutes of Health, the missions of public health institutions and agencies with respect to drug regulation are vast, encompassing, broad-based efforts to: evaluate population health; prevent addiction, reduce the harms attendant to drug use (e.g., diseases passed through shared needles, etc.), assure the safety and efficacy of commercially manufactured drugs, evaluate the quality of and ensure access to drug treatment services, oversee and finance research, and encourage healthy behavior. The institutes and actors that constitute the public health regime operate under principles of disclosure.These principles have emerged from the creation, evaluation, and dissemination of scientific knowledge, which requires an open, collaborative process, where transparency is par amount, and data is shared freely among those engaged in its research and evaluation. Disclosure, therefore, is essential to the fundamental authority of regulatory decision-making in the public health regime as this authority is based entirely upon the independence, accuracy, and integrity of the procedures and protocols used to arrive at medical, scientific, and public health policy conclusions.”

88 Paul-Emile, supra note 52 at 709. Here the author explains “The Criminal Regulatory Regime” as follows, “The criminal drug regulatory regime focuses on the investigation, interdiction, arrest, prosecution and incarceration of those involved with illicit drug consumption, distribution, trafficking, and manufacture with the goal of punishing those who have transgressed the boundaries of civilized society. In the criminal regulatory regime, drug regulation is not only a practice of government, a means of shaping conduct, and an exercise of power and authority; it is also an aspirational endeavor to the extent that it seeks to forge notions of whom and what we should be individually and collectively. Thus, for a drug to be moved from the market or public health regimes to the criminal regulatory regime, it must do more than pose an ostensible threat to public health or safety; use of the drug must be perceived to violate fundamental moral values. The criminal regime creates and reinforces principles derived from moral prescriptives. In addition to its regulatory and juridical functions, the criminal regulatory regime creates and reaffirms the moral principles of the collective consciousness writ large. Understood as such, this type of regulation is preconditioned upon notions of morality; both in terms of how regulators influence values, behavior, and beliefs with regard to that which constitutes good, just, appropriate, and responsible behavior; as well as how individuals perceive and respond to government.”

89 Id.90 Supra note 24 and 25. Considering also the articles published by Sports Illustrated shortly after the 1988 Seoul

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in sports.91 Congress was attempting to shift the perception of steroids by associating them with

the cause of cheating, so any use of them would be perceived as a moral wrong and thus a threat

to fundamental moral values. This shift in public perception allowed Congress to make the

seemingly valid argument that because of the threat to fundamental values posed by these drugs

that correct regulatory methods should be criminal. Congress reasoned that an enforcement

model of arrest, prosecution, and incarceration would be a better and more effective method;

rather than the previous model based on open disclosure of accurate information and informed

decision making. By taking this approach Congress was effective at criminalizing steroids not

because of their alleged health risks, or problems with illegal trafficking, but simply because of

their purported use to enable athletes to cheat in sports which Congress had deemed as a moral

wrong. By creating this moral stigma Congress was able to create the perception that steroids

use was ruining the morals of our Nation, thus requiring the protection of those morals through

legislation against steroids.

VI. ANABOLIC STEROID LEGISLATION LACKS RATIONAL STATE INTEREST

In order for the government to regulate drugs or engage in any significant intervention

into people's private affairs it is required to show a legitimate need, or justification, such as a

show of harm to a substantial state interest.92 The most common reasons for intervention are

harm to self, or others, and moral and ethical concerns.93 Once the reason for the intervention

has been established the state must show whom it is protecting and why.94 As for steroids,

Olympics where the cover had the extremely large stamp “Busted!” in light of Ben Johnson's testing positive for steroids, and the associated story: William O. Johnson & Kenny Moore, The Loser, Sports Illustrated, Oct. 3 1988, at 32-39. See also, Tommy Chaikin & Rick Telander, The Nightmare of Steroids, Sports Illustrated, Oct. 24, 1988, at 82-102.

91 Paul-Emile, supra 52. 92 Supra note 49 at 703.93 Id.94 Id. at 704

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Congress has asserted the justification of moral and ethical concerns, yet it's unclear who they

are intending to protect. If Congress's intent is to protect the integrity of sports95 then this is not a

rational state interest. This is because cheating and supposed moral issues from steroid use

resulting in a lack of integrity in professional sports does not present a concern to public health,

safety or welfare significant enough to justify government intervention.96 Furthermore, if the

intent then is to protect values, morals, and children from seeing and emulating sports

professionals who use steroids, this purpose also lacks a rational government interest. In this

case the link between steroid use by professional athletes and subsequent use by teenagers is not

a tenable one.97 Evidence demonstrating steroid use by athletes and a corresponding rate of use

by teenagers is lacking98 With this in mind, Congress has simply made the assumption that

steroid use by professional athletes sends an immoral message to America's youth and results in

increased use of steroids by young adults. However, of all the illicit drugs available to teenagers,

steroids pose the least “immediate threat” to public safety, and have one of the lowest rates of

use.99 Moreover this fact was skewed by Senator Biden when he stated steroid use was as wide

spread as “crack- cocaine”.100 This statement was overtly and intentionally misleading because

95 Id. at 5096 Jacques, supra note 12 at 121.97 Id. at 116.98 Id. at 117.99 Lindsay J. Taylor, Congressional Attempts to “Strike out” Steroids: Constitutional Concerns About the Clean

Sports Act, 49 Ariz. L. Rev. 961, 983 (2007). In its annual report Monitoring the Future conducted in 2011, the National Institute on Drug Abuse found that annual prevalence rates of steroid use were 1.0%, 1.4%, and 1.8% for boys in grades 8, 10, and 12, compared with 0.4%, 0.4%, and 0.5% for girls. By comparison use of marijuana in 2011 reaching 1.3%, 3.6%, and 6.6% in grades 8, 10, and 12, respectively. The rate for 12th graders is the highest rate since 1981, when it was 7.0% Rates of use for narcotics such as OxyCotin were were 2.1%, 5.9%, and 8.1% in grades 8, 10, and 12. Alcohol use carries some of the highest rates of use with 21% of 12th graders engaging what is considered binge drinking. NAT'L INST. ON DRUG ABUSE, NAT'L INST. ON HEALTH., MONITORING THE FUTURE, NATIONAL RESULTS ON ADOLESCENT DRUG ABUSE, KEY FINDINGS OF 2011, available at http://monitoringthefuture.org/pubs/monographs/mtf-overview2011.pdf

100 Mr. President, today the Senate will take action on a bill to address on of America's most serious drug problems: the abuse of anabolic steroids. Though we do not hear much about it, the fact is that steroid abuse is nearly as widespread as the use of crack cocaine is among male high school students.” 136 Cong. Rec. S16615-03 (1990)During 1990 the rate of use among high school students for both anabolic steroids and crack cocaine was just

19

crack cocaine use at the time this statement was made was the least used illegal drug among

teens and therefore so were steroids.

Many proponents of the both the 1990 ASCA and the 2004 amended version strongly

asserted a significant part of the problem is that professional athletes are role models for the

youth of America.101 In the ASCA hearings Senator Biden stated:

“To be honest, I would be less concerned about what professional athletes are doing to

their bodies if their actions did not have such a profound effect on kids.”102

Here Senator Biden acknowledges that health concerns of the athletes are not an interest but

rather the interest lies in the moral message created when athletes use steroids. Senator Biden in

a separate statement on the issue expressed the concern that steroid use by professional athletes

is a, “values” issue because it teaches kids cheating is “ok”.103 This “role model” reasoning is not

rational. Using this reasoning one may similarly argue that many movie stars, music artists and

other celebrities are role models too. Many of these personalities are known for their indulgence

and glamorization of excessive alcohol use, illicit drug use, explicit sexual promiscuity, and

significant cosmetic surgery.104 Thus applying the same reasoning Congress used for steroids,

Congress should be legislating prohibitions on these professionals' activities because of the

over 1%. NAT'L INST. ON DRUG ABUSE, NAT'L INST. ON HEALTH., MONITORING THE FUTURE, DRUG USE, 1975-2000 VOLUME I. available at http://www.monitoringthefuture.org/pubs/monographs/vol1_2000.pdf. Thus during this time crack cocaine use was one of the least used drugs, and if steroid use was as according to Senator Biden, “nearly as widespread as crack cocaine use” then steroids were also one of the least used drugs. However Senator Biden's remarks are inflammatory and made in such a way as to infer a significantly high and rampant use of crack cocaine, and thus a rampant use of steroids; when in fact both were the least used drug of the time.

101 Hearings on 3216, supra note 38. Hearings on 4658, supra note 40. Hearings on 3866, supra note 56. 102 Marguerite Higgins, Legal Steroids Targeted on Hill, Wash. Times, Oct. 31, 2003 at C10103 T.J. Quinn, Bush Inks Bill to Ban Steroids, N.Y. Daily News, Oct. 23, 2004, at 78. 104 In 2010 alone of all breast augmentation surgery performed 1.3% were done on women 18 years and younger,

with 47% of those being done for pure cosmetic enhancement purposes. The American Society for Aesthetic Plastic Surgery, available at http://www.surgery.org/media/statistics Last visited March 19th, 2012. The American Society for Aesthetic Plastic Surgery's cosmetic surgery statistics are the most comprehensive collection of data available on the number of cosmetic surgical and nonsurgical procedures performed in the United States.

20

immoral message and unacceptable values which these celebrities send to America's youth.

National Basketball Association (NBA) star Charles Barkley has famously stated, “The biggest

role models are parents, not famous jocks and famous people.”105 The argument that steroid use

by athletes sends a immoral message to children pales in comparison to the recent deplorable

conduct of notable famous athletes such as Tiger Woods106, Michael Vick107, Michael

Phelps,108and others.109 Professional athletes make choices and live lifestyles that most parents

would abhor their children emulating.110

When Congress addressed the issue of steroid precursors in 2004 many of the same

arguments about professional athletes being role models and the immoral message they were

sending to children were made.111 During the 2004 hearing Congress relied on testimony which

was absent of any supporting evidence. Representative John E. Sweeny, identified that when

MLB player Mark McGwire admitted to using the then legal dietary supplement androstiendione

sales of it quadrupled, and teenagers were a large portion of those sales.112 While it may be true

105 Geoffrey Rapp, Blue Sky Steroids, 99 J. Crim. L. & Criminology 599, 608 (2009). 106 Dave Shenin, Tiger Woods apologizes, admits he cheated and says he is undergoing therapy, Washington Post

Feb. 20, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/02/19/AR2010021902442.html (last visited April 9, 2012).

107 Michael Vick was found guilty of felony charges sentenced to 23 months in federal prison and three years probation for his role in a dogfighting conspiracy. http://sports.espn.go.com/nfl/news/story?id=3148549 (last visited April 9, 2012).

108 Karen Crouse, Phelps Apologizes for Marijuana Pipe Photo, New York Times, Feb. 1, 2009, available at http://www.nytimes.com/2009/02/02/sports/othersports/02phelps.html; Phelps was also charged with drunk driving in 2004. Id.

109 Jamal Lewis (NFL), February 2004 - Running back was indicted on federal drug charges involving a drug deal in summer 2000. Was charged with conspiring to possess cocaine with the intent to distribute. He plead guilty and spent 4 months in prison, and was suspended 2 games by the NFL. Tank Johnson (NFL), December 2006 - Lineman was arrested and charged with six counts of possessing an unlicensed gun. Additionally Johnson was also on probation for a previous weapons charge. He was subsequently sentenced to house arrest, and 4 months in jail for probation violation, and fined $2,500. Ugueth Urbina (MLB), November 2005 - Relief pitcher was arrested by Venezuelan authorities on a charge of attempted murder, and was convicted in March 2007 of attempted murder and other charges. He was sentenced to 14 years in prison, thus ending his professional baseball career. Compiled by ESPN Research, see “Lives Careers Interrupted” insert at http://sports.espn.go.com/nfl/news/story?id=3148549 (last visited April 9, 2012).

110 Rapp, supra note 105 at 608.111 Hearings on 3866, supra note 56; supra note 101. 112 Id.

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that sales of the supplement increased, there was no evidence introduced to support the assertion

that a larger percentage of those sales were made by teenagers. Rather than present data on the

volume of steroid precursor purchases actually made by teenagers, doctor Ralph Hale testified

that his son who is a high school teacher, told him how easily his students can purchase these

substances from various nutrition stores.113 In the most recent findings on steroid use made by

Congress in 2005 in an effort to pass the Clean Sports Act,114 much of the testimony by Congress

centered on the fact that steroid use by professional athletes had an absolute direct effect on

young adult use.115 However, if Congress had such clear and convincing evidence of a

correlation of use between the two groups, there should have been more definite language in the

official findings rather than the language used of “suggest” and “actual or alleged” to identify the

link between these two groups. Such vague terms show a lack of strong evidence to support their

claims.116

In sum, there has been no showing that steroids use by teenagers is dependent on

professional athlete use, and would be lessened through regulating steroids as a controlled

substance. A 2006 study identified five factors motivating teens to use illegal performance

enhancing drugs, and “use by a professional athlete role model” was not one of them.117

Considering these facts Congress has failed to show that steroids pose a substantial harm to a

state interest, and who or what they are intending to protect through this legislation. In

legislating anabolic steroids as a controlled substance Congress acted with no rational purpose or

state interest other than to make voters aware that they had taken action.118

113 Id.114 This act failed to become law. Clean Sports Act of 2005,H.R. 2565, 109th Cong. (2005).115 Clean Sports Act, S. 1114, 109th Cong. § 2 (2005).116 Jacques, see supra note 12 at 108. 117 Denise A. Garibaldi, Ph.D., Symposium, The Challenge and the Tragedy, 40 New Eng. L. Rev. 717, 717 (2006). 118 Black, see supra note 19 at 151. Wilairat, supra note 21 at 388.

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VII. THE CRIMINAL PENALTIES FOR STEROIDS HAVE NOT BEEN

ENFORCED EFFECTIVELY TO ACHIVE CONGRESS'S STATED PURPOSE

By scheduling steroids as a controlled substance Congress has chosen to take the

approach of criminal penalties with the goal of reducing availability, stem the abuse of steroids,

deter use by those who might use, and punish those who promote use by selling.119 The penalty

for simple possession120 is a felony punishable up to one year in prison and, or a fine of $1000.121

However, if there is a prior drug conviction, there is a minimum fifteen day jail sentence which

may be increased up to five years and an increased fine of $2500.122 Whereas, the penalty for

distribution or possession with intent to distribute is punishable by no less than ten years in

prison.123 The proponents of making steroids a controlled substances believed this to be the most

effective method to achieve their stated purpose, however history suggests otherwise. Since the

time of the 1990 ASCA and its subsequent amendment in 2004 it is difficult to name or identify

any professional athlete who has been arrested, criminally charged, or imprisoned for possession

and use of steroids.124 There clearly has not been any shortage of professional athletes who over

the past years have admitted to or been found using steroids. The “Mitchell Report” named

nearly eighty-nine professional baseball players as supposed steroids users,125yet none of these

athletes were ever formally charged.

119 Reddig, supra note 26 at 1669.120 21 U.S.C. § 844 (2010). Simple possession is defined as: It shall be unlawful for any person knowingly or

intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice.

121 Id.122 Id.123 21 U.S.C. § 841 (2010). 124 Collins, supra note 73 at 761. 125 GEORGE J. MITCHELL, DLA PIPER US LLC, REPORT TO THE COMMISSIONER OF BASE- BALL OF

AN INDEPENDENT INVESTIGATION INTO THE ILLEGAL USE OF STEROIDS AND OTHER PERFORMANCE ENHANCING SUBSTANCES By PLAYERS IN MAJOR LEAGUE BASEBALL SUMMARY AND RECOMMENDATIONS, Dec. 13, 2007, http://files.mlb.com/mitchrpt.pdf [hereinafter Mitchell Report]

23

In 2004 Representative Howard Bern, one of the main sponsors of the 2004 steroid

control act, concluded his introduction of the bill to the House of Representatives by stating

those who violate this law will go to jail.126 By December 2006, more than 30 professional

athletes consisting of track, baseball, football and other sports were caught using banned

drugs,127yet not a single one was ever indicted or charged, much less jailed.128 Victor Conte,129

the man responsible for administering the designer steroid THG to Olympic gold medalist

Marion Jones, when found guilty of conspiracy and distribution of steroids only received a four

month prison sentence130. Considering the penalties established under the applicable steroid laws

this punishment was minimal at best.

Through these failures to hold athletes, coaches and trainers responsible within the

confines of the law, Congress has subsequently done more to damage the validity of the criminal

penalties approach to regulating steroids rather than legitimizing it. Congress argued that they

intended to protect the integrity of sports and were deeply concerned about the message

professional athletes were sending to the youth of America. Therefore they reasoned that in

order to preserve this integrity and protect youth, steroids should be regulated as controlled

substances and enforced through strong criminal penalties. However, Congress has completely

failed to validate this purpose. What is the message being sent when these professional athletes,

126 Floor statement of Rep. Howard Berman, available at, www.house.gov/list/press/ca28_berman/Steroid_Control_Act.shtml

127 Mark Fainaru-Wada & Lance Williams, Steroids Scandal: The BALCO Legacy From Children to Pros, the Heat is On to Stop Use of Performance Enhancers, S.F. Chron., Dec. 24, 2006 at A1.

128 Supra note 124.129 Victor Conte was founder of Bay Area Laboratory Co-Operative “BALCO” which supplied a number of elite

professional athletes with steroids, namely the then undetectable “THG”, Lance Willimas & Mark Fainaru-Wada, The BALCO Case: Conte Changes Tune, Names BALCO, San. Fran. Chron., Dec. 4 2004, at D1.

130 Associated Press, available at http://sports.espn.go.com/espn/news/story?id=2389940 Updated: March 31, 2006, 3:54 PM ET, (last visited April 10, 2012).

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even the most famous, who self-admittedly131 used steroids receive no punishment under the very

law, for whom it was created.132 Professional and amateur athletes should be prosecuted for

breaking this law, because any other citizen would be and has been,133 yet athletes continue to

escape punishment. Congress is willing to talk tough, but when it comes time to act, it appears

no one wants to take responsibility for leveling criminal charges on beloved athletes.

Interestingly, in the 1990 hearings the AMA testified that scheduling steroids as a controlled

substance would do little to stop steroid use.134

Those who have been arrested and prosecuted under the ASCA tend to be primarily non-

athlete users and rather those who use steroids for purely cosmetic purposes.135 Additionally this

group of users does not constitute the demographic targeted within the legislative intent136 of

ASCA. By failing to enforce the criminal penalties for steroid use, and distribution by

professional athletes, coaches, and trainers Congress is effectively demonstrating there is no

rational relation between the purpose of the law137 and the means whereby to enforce it.

131 MarK McGwire: "I never knew when, but I always knew this day would come. It's time for me to talk about the past and to confirm what people have suspected. I used steroids during my playing career and I apologize. I remember trying steroids very briefly in the 1989/1990 off season and then after I was injured in 1993, I used steroids again. I used them on occasion throughout the '90s, including during the 1998 season.”, http://sports.espn.go.com/mlb/news/story?id=4816607 ((last visited April 10, 2012).Jose Conseco: Canseco also admits in an interview with 60 Minutes that he would never have been a major league-caliber player without using the drugs." Referring here to anabolic steroids, “I don't recommend steroids for everyone and I don't recommend growth hormones for everyone," Canseco tells Mike Wallace. "But for certain individuals, I truly believe, because I've experimented with it for so many years, that it can make an average athlete a super athlete. It can make a super athlete incredible. Just legendary." http://www.usatoday.com/sports/baseball/2005-02-13-canseco-60minutes_x.htm (last visited April 10, 2012)Jason Giambi: New York Yankees star Jason Giambi told a federal grand jury that he had injected himself with human growth hormone during the 2003 baseball season and had started using steroids at least two years earlier. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/12/02/MNG80A523H1.DTL&ao=all (last visited April 10, 2012)

132 Hearings on H.R. 4658, supra note 40. 133 Collins supra note 27. 134 Senate Hearings on Steroid Abuse, supra note 42.135 Collins, supra note 74 at 761.136 Supra note 43.137 Collins, supra note 27 at 279. “Hundreds of congressional transcript pages were devoted to promoting fair play

at the elite and collegiate levels. Nobody ever mentioned the idea that the 35-year-old guy who's paving roads by day, feeding his family, and using a moderate amount of juice to enhance the effects of training, would be

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VIII. OTHER PUBLIC POLICY ISSUES

This section considers three main public policy issues in conjunction with steroids. First,

is the issue that the majority of steroids users are not athletes and thus do not fall within the

intent of the anabolic steroid legislation. Second, is the issue of protecting the health and safety

of adolescents without criminalization of steroids. Third, the call to protect the integrity of sports

is misguided because integrity in sports is a vague concept.

In their effort to criminalize steroids Congress used the approach of changing the social

meaning138 of steroids so that they were associated with undermining morals and values because

they were a mechanism for cheating.139 This reasoning only applies in the very small and limited

realm of competitive sports and as researchers suggest, “The large majority of anabolic steroids

users are not elite athletes.”140 Similarly it is estimated that as many as three million Americans

have used anabolic steroids for non-medical purposes,141 typically to enhance their physical

appearance.142 Thus, it is not possible to reconcile the problem of “cheating” with this majority

population of users because that moral principle is not applicable within this context for the

majority of steroid users. A 2007 study evaluated 1,955 non-medical anabolic androgenic steroid

(NMAAS) users and determined the following:143

1) The average user was 31.1 years old. 74.1% held a post-secondary degree, and

arrested and prosecuted...Overnight the typical mature adult male steroid user was turned into a criminal desperado...by a law that was passed with barely a thought to the issue.”

138 Paul-Emile, supra note 52 at 710.139 Id. at 715. 140 Yesalis CE, Bahrke MS, Anabolic-androgenic steroids: Incidence of use and health implications (Corbin CB,

Pangrazi RP, Youg D. eds., Research Digest Volume 5, Issue 5, 2005)141 Non-medical anabolic androgenic steroid (NMAAS) is a population neither participating in competitive sports

nor an adolescent. Jason Cohen, Rick Collins, Jack Darkes, and Daniel Gwatney, A league of their own: Demographics, motivations, and patterns of use in 1,995 male adult nont medical anabolic steroid users in the United States, Journal of the International Society of Sports Nutrtion, Volume 4 Issue 12 (2007), available at http://www.jissn.com/content/4/1/12

142 Id. 143 Id.

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more had completed college than not. 77.7% were employed full-time. Most

were employed as professionals with a median income between $60,000 and

$79,000 per year.144

2) The motivations for steroids use among the group consisted of

1. Enhanced physical appearance

2. Increased fat loss

3. Improved mood and attraction of sexual partners

4. The reasons of participation in recreational or amateur weightlifting,

powerlifting, or sports were rarely stated motives.145

These findings hold consistent with the very statements made in the early congressional hearing

on steroids where testimony was given stating:

“ [S]teroids abusers...tend to be more heath conscious; their steroids intake is often

coupled with vitamin use and a body sensitivity that may weaken long-term

attachment to the drugs. Steroids users also more closely resemble defendants

found in white-collar fraud case: They are more educated, more shaken by clashes

with the law...”146

Congressman Levine in these same 1990 hearings explained that steroids users are:

“[V]ery-goal-oriented”, and “do not take steroids to get high or escape from reality147...the

motives behind steroid abuse are markedly different form the motives behind the use of

144 Id. at 4. (The pin cite for this pagination of the cited journal is not the official pagination of the original source. The pagination given for the sake of this pin cite is the most accurate cite based on the availability of the referenced source material).

145 Id. at 6.146 Burge, supra note 6 at 59. 147 136 Cong. Rec. H8842-04 (daily ed. Oct. 4, 1990) (statement of Rep. Levine).

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other drugs.”148

Accordingly a criminal approach to steroid regulation is not appropriate law or public policy as it

relates to the majority of steroid users. The average majority user of steroids cannot be

compared to other criminal drug users. They are not the kind of individuals engaging in

activities reprehensible to the moral notions of society, such as crime to feed an illicit drug habit,

thus requiring criminal sanctions for their drug associated crimes. These users are not attempting

to cheat in the realm of elite competitive sports. By analogy, NMAAS or cosmetic steroids users

are no different than those who use plastic surgery procedures like breast augmentation, lipo-

suction, collagen injections, and botox to enhance their physical appearance and sense of well

being.

Furthermore, the policy issue regarding the health and safety interests of young adults can

still be protected without regulating steroids as a schedule III controlled substance. The United

States Supreme Court has upheld random drug testing for any high school student participating

in extracurricular activities.149 Therefore Congress can constitutionally require student athletes to

submit to random drug testing if they wish to participate in school athletic events. It has been

proposed this method would be a more effective solution to deterring steroid use among

America's youth. If steroids are not an option due to testing implemented at the high school and

college level, then these student athletes will find other training methods to edge out the

competition.150 Additionally, it has been asserted that drug testing in conjunction with increased

awareness education about steroids at the high school and college level, “will help children

148 Id.149 Bd. of Educ. v Earls, 536 U.S. 822 (2002). Holding that students have a diminished expectation of privacy, and

a school has a legitimate interest in preventing drug use among its students. Random drug testing to achieve this interests is both reasonable and minimally intrusive.

150 Taylor, supra note 99 at 986.

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understand both the harmful effects of steroids, and the zero tolerance policy on their usage.151

Through their Adolescents Training and Learning to Avoid Steroids (ATLAS) program the NIDA

has proven this approach of increased awareness education is successful in reducing steroids use

by young adults.152 This method is essentially the “Public Health Regime” model153 in which

steroids were originally regulated prior to the criminal approach currently in place. When

considering the interests of adolescents Congress needs to adopt a refined public policy approach

which is aimed at the real motivations for teen steroid use, rather than targeting the attenuated

source of professional athletes limited influence on an adolescents life choices.154

Lastly the need to protect the integrity of sports is misguided because integrity in sports is

a vague concept. This issue presents the problem of defining what exactly constitutes “integrity”

within sports. The common argument is integrity means a “level playing field” must be

maintained so all athletes compete with an equal chance. However in todays modern sports

world the line between fair and cheating is becoming increasingly blurred. Additionally the

argument that eliminating steroids and other performance enhancing substances assumes that a

level playing field will result from doing so, this is not likely.155 Todays athletes use a myriad of

nutritional supplements, training methods, and equipment, to enhance their performance. For

example decorated Olympic swimmer Dara Torres became the oldest swimmer to compete in the

151 Colin Laitner, Steroids and Drug Enhancement in Sports: The Real Problem and the Real Solution, 3 DePaul J. Sports L. & Contemp. Probs. 192, 214 (2006)

152 Studies show that 1 year after completion of the program, compared with a control group, ATLAS-trained students in 15 high schools had - Half the incidence of new abuse of anabolic steroids and less intention to abuse them in the future; - Less abuse of alcohol, marijuana, amphetamines, and narcotics; - Less abuse of "athletic enhancing" supplements; - Increased protection against steroid and other substance abuse. Namely, less interest in trying steroids, less desire to abuse them, better knowledge of alternatives to steroid abuse, improved body image, and increased knowledge of diet supplements. available at: http://www.drugabuse.gov/publications/research-reports/anabolic-steroid-abuse/nida-funded-prevention-research-helps-reduce-steroid-abuse

153 Paul-Emile, supra note 87. 154 Taylor, supra note 99 at 986.155 Rapp, supra note 105 at 603.

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Olympics in 2008 where she won three silver medals.156 She spent more than $100,000 dollars to

pay for coaches, masseuses, a chiropractor, and other training modalities all to enhance her

performance157. If a fellow competing athlete could not afford to purchase the same amount or

quality of coaching and training, the question then is have they been reduced to an unlevel

playing field? Similarly, in todays professional sports world there are teams with enormous

budgets, which can pay for and buy the best training equipment, facilities, team doctors, and

trainers. Have the smaller budget teams who must compete with and play against these others

been placed at an unfair disadvantage or unlevel playing field? This disparity in training among

competing athletes seems to be nothing but unfair.

LASIK158 eye surgery, is a surgical procedure whereby the shape of the cornea of the eye

is permanently changed so to correct or enhance poor vision. An athlete may undergo this

procedure and by doing so obtain better than 20/20 vision, as did Tiger Woods.159 By doing so

the athlete has permanently altered their physical body and enhanced their performance, yet it is

never argued that this may be considered cheating. This same enhanced vision can be achieved

by wearing contact lenses, thus enhancing performance through what can be deemed the athletes

equipment. 160 Furthermore, whether the use of steroids in sports is cheating because it

156 http://daratorres.com/biography.php ( last visited March 17, 2012).157 Elizabeth Weil, A Swimmer of a Certain Age, N.Y. Times, June 29, 2008, avialable at:

http://www.nytimes.com/2008/06/29/magazine/29torres-t.html?pagewanted=all158 According to the Food and Drug Administration, LASIK stands for Laser-Assisted In Situ Keratomileusis and is

a procedure that permanently changes the shape of the cornea, the clear covering of the front of the eye, using an excimer laser. It's intended to reduce a person's dependency on glasses or contact lenses. available at: http://www.fda.gov/MedicalDevices/ProductsandMedicalProcedures/SurgeryandLifeSupport/LASIK/default.htm

159 Tiger woods underwent laser eye surgery resulting in 20/15 eye sight which is better than normal or natural vision. Subsequently, Woods, who had lost 16 straight tournaments before his surgery, won seven of his next 10 events after the surgery. http://www.slate.com/articles/health_and_science/human_nature/2005/04/the_beam_in_your_eye.single.html (last visited March 17, 2012).

160 Rapp, supra note 105 at 603.

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undermines the integrity of the sport is an empirical question with little evidence. 161 Numerous

examples can be pointed out considering todays high tech sports industry. However the issue

remains that it is difficult to call into question the integrity of any sport when the definition of

cheating is vague and in a constant state of flux due to ever changing methods of competing.

Thus singling out steroids as the crux to relive professional sports of cheating is misguided.

IX. THE PROPER REGULATION OF ANABOLIC STEROIDS

The regulation of steroids under the Food Drug and Cosmetic Act, (FDCA)and under the

Anti-Drug Abuse Act of 1988 (ADAA) is the more appropriate method for regulation of steroids.

The FDCA regulated steroids as a medication only available through a valid doctors prescription.

162 The act was amended in 1988 with the passing of the ADAA. As a result of the 1988 ADAA

the issue of steroid trafficking was specifically addressed. Under this law the trafficking of

steroids was made a felony punishable by up to three years in prison, and up to six if sold to

anyone under eighteen. A crucial aspect of the law was that it allowed for prosecution of

distributors, and dealers but did not authorize the arrest or prosecution of those in simple

possession, and did not classify steroids as controlled substances.163 The intent of the law was

targeted to distribution of steroids for non-medical purposes, and this approach allowed for

prosecution of the source or steroids from black market dealers, or unethical doctors.

Accordingly, enforcement agencies were able to effectively prevent, and prosecute the unlawful

distribution of steroids.164

161 Lewis Kurlantizick, Is There a Steroids Problem? The Problematic Character of the Case for Regulation, 40 New Eng. L. Rev. 789, 794 (2006).

162 Collins, supra note 27 at 4. 163 Id. 164 Id.

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Currently, the amount of steroids one must be in possession of to be considered

distribution is subjective, and trafficking may be charged for possession in any amount. 165 By

contrast, the determination of trafficking for drugs such as cocaine or marijuana is dependent

upon certain thresholds of amount possessed.

The problem unique to steroids in this regard, is that a steroid users possession of steroids

is based on potency. A steroid user who intends to follow a conservative dosing regime of using

one oral steroid in the form of tablets will be in possession of anywhere from 300 to 500 tablets.

Because potency is typically 5mg of active steroid compound per tab, the user will want to

consume anywhere between 25 to 50 mg of the steroid which equals five to seven tablets a day

over a period of eight weeks in order to achieve the desired effect.166 Thus, the typical law

enforcement person not understanding this fact will automatically assume that in this instance,

and most others, that the user must have intended to distribute based on the volume of steroids

possessed. This problem is magnified when considering that most users “stack”167 steroids.

Thus, a user who is using steroids in a “stacked” method will possess steroids in what appears to

be extremely large quantities meant for distribution. Yet, it is all intended to be used personally,

and moreover all used within a short eight to ten week time frame.

Therefore, under the current trafficking regulations those in simple possession with no

intent to distribute are unjustly dealt with and elevated to the level of traffickers. Since the

FDCA and the ADAA, both effectively allow for the prosecution of the source of illegal steroids,

and because of the unique nature of steroids in relation to possession for personal use, it would

be more appropriate to return steroids to regulation under the FDCA and ADAA.

165 Supra note 120.166 Collins, supra note 27 at 288.167 Stacking consists of using multiple steroids at one time due to the synergistic effect the combined steroids

exhibit upon body composition.

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Alternatively it has been suggested that legalization of steroids would be the best

approach.168 This approach would directly address issues of adverse health effects by allowing a

legitimate production of FDA regulated steroid products, and by removing the criminal penalties

(and thus the deviant societal stigma) users would be likely to seek out assistance or monitoring

by medical doctors thus resulting in responsible use. 169 Regardless of the approach taken, this

fact holds true:

“If we maintain our current course in the face of continued (or increased) high levels of

anabolic steroids use (or use of other performance-enhancing drugs), then we...are guilty

of duplicity – acting for the sake of acting.”170

The evidence suggest the criminal approach is not the right one, thus a reforming of current

steroid laws must take place.

X. CONCLUSION

Anabolic steroids are a unique drug. They are the only hormone ever classified as a

controlled substance.171 Congress chose to classify them as controlled substances despite

objections and recommendations otherwise by the FDA, HHS, NIDA, DEA, and AMA. Rather

than keep steroids regulated through an approach of education, disclosure, and the dissemination

of scientific and medical knowledge. Congress decided the more effective approach to stop

steroid abuse is by implementing harsh criminal penalties in an attempt to stamp out use. 172 Yet

the Mitchell Report173 shows a complete failure of the anabolic steroids laws, and lawmakers to

achieve their stated intent to remove steroids and cheating from professional sports. The basis of

168 Burge, supra note 6 at 59. 169 Id. 170 Id. at 60. 171 21 U.S.C. § 812 (2010); Collins, see supra note 71 at 755.172 Burge, supra note 6 at 40.173 Supra note 125.

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regulating steroids as a schedule III controlled substance is too arbitrary and too unconnected to

the asserted rationale of preventing cheating in professional and amateur sports, and the

supposed interest served are too contrived and attenuated. Accordingly anabolic steroids would

be better regulated as they previously have been under the Food Drug and Cosmetic Act and

Anti-Abuse Drug Act.

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