Does the Anabolic Steroid Control Act work? Whether providing criminal penalties for illegal steroid use is the proper and most effective way of dealing with the "steroid problem" has been debated for quite some time (see, for Steroid Laws example, Norma H. Reddig, Note, Anabolic Steroids: The Price of Pumping Up!, 37 Wayne L. Rev. 1647 [1991], at 1670). Proponents of criminalization and law enforcement authorities say that the Control Act: (1) helps to deter trafficking, (2) protects young people, and (3) preserves fair competition in sports. [Against criminalization are arguments that such penalties have proven to be a failure in stemming abuse of other drugs and alcohol, that criminalization only increases the underground black market, and that efforts are best confined to education and rehabilitation. The American Medical Association (AMA) opposed the Congressional rescheduling of anabolic steroids fearing that the government would seize on the scheduling as a substitute for effectively dealing with the problem of abuse, and foreseeing that scheduling would have no beneficial impact upon the problem.]

Deterring Steroid Trafficking

Proponents of criminalization contend that stiff penalties help deter trafficking (House Legislative Analysis Section, Analysis of H.B. 4081 [July 3, 1990]), and that the strict controls associated with controlled substance status prevent pharmaceutical companies from manufacturing more product than could be legitimately used for FDA approved purposes. Indeed, it was the allegation of such a "diversion " problem that helped sway Congress to classify steroids even against the advice of most authorities including the AMA. In the Congressional hearings, Charles Yesalis, ScD testified as an expert witness that pharmaceutical companies refused to cooperate with investigations to determine the level of diversion. Hearings on H.R. 4658, at 77. The Control Act addresses the diversion problem by the triplicate "paper trail" that is associated with controlled substances. Every person who manufactures, distributes, or dispenses a controlled substance is required to register annually with the Attorney General. 21 USC Sec. 822(a)(1) and (2) (1988). But while the paper trail requirements have reduced the amount of legitimate steroids diverted to athletes, they have helped foster a booming counterfeit trade where underground labs make and label steroid products to mimic legitimate pharmaceuticals. These products completely bypass the Control Act's paper trail.

In a 1990 statement to Congress, Department of Justice officials estimated the black market to be a 300 million dollar per year industry. Anabolic Steroids Control Act of 1990: Hearings on H.R. 4658 Before the Subcomm. on Crime of the House Comm. on the Judiciary, 101st Cong., 2d Sess. 90 (May 17, 1990) (statement of Leslie Southwick, Deputy Assistant Att'y Gen., Civil Division, U.S. Dep't of Justice). Today the black market is estimated to be bigger than ever, at more than 400 million dollars in annual retail sales. C. Yesalis & V. Cowart, The Steroids Game (Human Kinetics, Champaign IL: 1998) at 108. But while prosecutors and lawmakers decry the dangers of this huge black market "of illegitimate steroids which have no FDA approval and are made under less than sanitary conditions" (J. Wright and V. Cowart, Anabolic Steroids: Altered States [Carmel, IN: Benchmark Press, 1990], at 49-50), they seem unaware that it is their own legislation and its enforcement upon doctors and other legitimate sources that have helped it to flourish. So much for deterring steroid trafficking.

Protecting Young People

Protecting young people from danger is a worthy goal of any legislation (even though the physical dangers of steroid use have been greatly exaggerated in the lay press; see Health Risk section). But if the true "steroid problem" is adverse health effects, mainly upon young people, the Control Act has been especially dangerous. A primary effect of the Control Act's restrictions upon legitimate product has been the increased manufacture and distribution of black market counterfeit products and substandardly made veterinary steroids never intended for human consumption. Many of these black market products are tainted with impurities. It has been estimated that up to 90% of black market anabolic steroids are contaminated or contain other foreign substances. Steve Gallaway, The Steroid Bible (3rd ed., Belle International, 1997). It therefore seems evident that "continued enforcement of steroid legislation will worsen health risks associated with steroid use. An investigation by The Atlanta Journal and Constitution concluded that 'tougher laws and heightened enforcement...have fueled thriving counterfeit operations that pose even more severe health risks." John Burge, Note, Legalize and Regulate: A Prescription for Reforming Anabolic Steroid Legislation, 15 Loy. L.A. Ent. L. J. 33, (1994) at 54-55, citing Mike Fish, Steroids Riskier Than Ever, Drugs Easy to Buy South of the Border, Atlanta J. & Const., Sept. 28, 1993, at D1.

A second major effect of the criminalization approach has been to discourage athletes, especially teens, from admitting their steroid usage to physicians. Since the greatest dangers inherent in self-administered steroid use involve the failure to be monitored by a doctor (see Health Risk section), the Control Act has succeeded in greatly escalating this danger and has created an even wider gap between the athletes and the medical community. Because the self-administration of anabolics is a federal crime, few users are willing to confess their steroid use to physicians. And because federal enforcement efforts have targeted physicians, few doctors want anything to do with athletes taking steroids. Doctors caught distributing steroids to athletes have been criminally prosecuted. Walter F. Jekot, M.D., for example, was sentenced in 1993 to five years in federal prison for dispensing steroids to athletes. "By forbidding trained physicians from administering steroids in a controlled manner, the Legislature has forced athletes to either buy steroids off the black-market or seek out un-ethical and possibly incompetent physicians to supply them steroids....[I]t appears that Congress' attempt at preventing steroid prescription has at best been futile and at worst harmful." Jeffrey Black, Comment, The Anabolic Steroids Control Act of 1990: A Need for Change, 97 Dick. L. Rev. 131 (1992), at 140 (citations omitted). The end result is that the athletes using steroids rarely get regular blood pressure checks, cholesterol readings, prostate exams and liver enzyme tests, making steroid use far more hazardous than it would otherwise be.

Preserving Fair Competition in Sports

Issues of cheating, "hollow victories," "winning at any cost," etc., are a separate but equally important ideological foundation for the Control Act. "Permitting steroid users to compete with drug-free athletes reflects on the fairness of athletic competition at every level. Allowing those with an unfair advantage to compete can pressure drug-free athletes to use anabolic steroids to remain competitive. 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. 92 (Mar. 22, 1990) (statement of Frank D. Uryasz, Director of Sports Sciences, National Collegiate Athletic Association). In fact, some legal analysts have viewed the "fair competition" issue as the primary reason for promulgation of the Control Act. "The majority of witnesses who testified at the hearings leading to the legislation were representatives from either amateur or professional athletics. The testimony, and apparently Congress' main concern, focused on legislative action in an effort to solve an athletic 'cheating' problem." Burge, Loy. L.A. Ent. L.J., at 45. According to international steroid expert Mauro Di Pasquale, M.D., this "cheating" problem may be the true "steroid problem:"

Contrary to what most people believe (the media's irresponsible sensationalism has resulted in the widely held mistaken view that the use by athletes of anabolic steroids and other performance-enhancing drugs is a problem on par with heroin and cocaine abuse), the use of drugs, such as anabolic steroids, by athletes is a problem, not because of the addictive and dangerous side-effects of these compounds, but because these drugs offer an unfair advantage to the athletes who use them.

M.G. Di Pasquale, Editorial: "Why Athletes Use Drugs," Drugs in Sports (Vol. 1, Number 1, February 1992) at 2.

But the Control Act has been of extremely limited value in addressing this "cheating" problem. Elite athletes are almost never prosecuted under the Control Act, obtaining their steroid supplies through sophisticated channels that avoid detection by law enforcement. The extremely remote possibility of criminal prosecution deters few if any Olympic and professional level athletes. The most effective way to eradicate anabolic steroids from competitive sports is through systematic drug testing. Athletes who fail the steroid test are prohibited from competing. While testing for anabolic steroids is not perfect, it does remove identified steroid-users from the sport and also serves as the most effective deterrent today. Serious athletes devote huge amounts of time, energy and resources into training for an event. The effect of drug testing - preventing steroid-using athletes from competing - is both a more effective and more appropriate deterrent than the Control Act's threat of making overly ambitious athletes into convicted felons.

Other Problems with the Control Act

The Control Act has also made it much more difficult for those who might legitimately benefit from steroid therapy to have access to it. There are many who believe that hormones may be the ultimate antidote for aging. Serum testosterone levels decline in men as they age: replacement is being suggested as a beneficial therapy with few adverse effects. The restoration of strength, muscle mass and libido in the elderly would greatly benefit society. However, the sweeping stroke with which the Control Act is applied has precluded many favorable applications for the elderly. Jeffrey Hedges, Note, The Anabolic Steroids Act: Bad Medicine for the Elderly, 5 Elder L. J. 293 (Fall 1997). When "physicians prescribe steroids for other than approved illnesses, they open themselves up to a presumption of illegality based upon the reading of the Anabolic Steroids Control Act." Id at 311. "By respecting the federal law, physicians may not prescribe steroids to advance the physical strength and condition of the elderly. By subverting a doctor's determination concerning the best interests of a patient, elders are penalized as well -not for violating the law, but by submitting to it." Id at 313. "Many illnesses requiring managed care possibly could be eliminated with hormone treatments. This would not only trigger a social benefit but a financial benefit as well. Congress has created a barrier for the revitalizing effects of steroids for the elderly." Id at 320.

Another problem with the Control Act is the effect of criminalizing our young people. The student caught with steroids will be forever a felon. While anti-steroid experts try to minimize the real life effects of criminalization upon our young adults, we lawyers see it firsthand. For those unfortunate enough to be caught, the effects of prosecution can be devastating. This is especially true since most adult steroid users lead otherwise responsible, law-abiding lives. An East Coast former long-term user was quoted as follows:

Unfortunately our society has been educated to believe that if you use steroids, you're no different from the guy with crack cocaine, and there is a big difference. In the '80s, I saw so many individuals who used steroids and in some cases abused them, and these individuals went on to become doctors, lawyers, DEA agents, and various other types of law-enforcement personnel at the state and federal levels - prominent citizens for this country... And we're not talking about 10 or 20. We're talking about hundreds of people I've seen over the years... I'd say at least 90, maybe 95 percent, of the steroid-users I saw became productive citizens - just because the guys who did it in the '80s were trying to be the best they could be. They had that characteristic of trying to be the best, and they kept that same characteristic and applied it to other areas of their lives.

B. Allen, "Steroids and the Law," MuscleMag International (Vol. 180, June 1997) 48, at 56 (quoting an anonymous athlete). For a personal example, I am currently representing a man who was "set up" by his former training partner to sell to him a bottle of testosterone. The transaction was orchestrated by the Narcotics Bureau of the county police department at the taxpayers' expense. The deal was arranged to take place in a parking lot, and immediately after the transfer, a squad of law enforcement agents surrounded my client with guns drawn and handcuffed him. As my client, a gainfully employed and respectful young man, now faces a felony conviction and jail time, the question is raised whether such police operations really reflect a sensible approach to the problem and further whether they are a prudent or appropriate use of our government's resources. The terrible, irreparable harms caused by the Control Act and similar laws vastly outweigh the generally mild health risks associated with steroid use by most young adults.

Finally, commentators from both the legal and medical communities have noted an interesting cultural irony in the comparison of anabolic steroid administration to cosmetic surgery procedures. In a society preoccupied with physical appearance, confidence and self-image are often intertwined with body shape and condition. Under the current views and laws of our society, it is criminal for a physician to administer anabolic steroids to a healthy adult for purposes of cosmetic physical enhancement. However, it is perfectly acceptable (and quite lucrative) to perform the much more radical and dangerous procedure of surgically implanting foreign prosthetics into virtually all parts of the human anatomy for the same purpose, subjecting patients to the potentially fatal risks associated with general anesthesia and post-surgical infection. Many more people have died or been permanently injured from botched liposuctions and other cosmetic surgery procedures in the past few years than in over forty years of anabolic steroid use by athletes. If one of these alternatives must be illegal, it would seem that the current state of legality regarding these procedures might best be reversed.

Solutions to the "Steroid Problem"

It must be concluded that criminalization has been a failure. Illegal use has continued unabated and the potential dangers associated with anabolic steroid use have been significantly increased because of the Act.

Steroid prohibitionists will meet any challenges to the status quo with resistance. In The Steroids Game, supra at pages 113-114, co-author and steroid expert Virginia Cowart is quoted on the issue of legalization: "However imperfect our present systems might be, it would be a terrible mistake to consider legalizing performance-enhancing drugs... We cannot depend on athletes making judicious use of steroids during their athletic careers. From the earliest times, the pattern has always been one of excess. Alcohol regulation does not entirely prevent alcohol abuse by youngsters but it serves as a check that is in the best interests of society." Professor Cowart's argument invites two responses. First, her observation about athletes themselves being incompetent to judiciously use steroids supports the position contrary to hers. Reforming the law to again allow doctors to be involved in the dosage regulation, administration, and health monitoring of athletes using anabolics would vastly reduce the patterns of "excess." Second, her analogy to alcohol is well taken in a way she must have overlooked. Recognizing the failure of Prohibition, Congress changed our national laws regarding alcohol use from prohibition to restriction, permitting use by mature adults but banning sales to minors. Just as our society views alcohol and tobacco as requiring maturity for responsible use, so too should any relaxation of laws regarding anabolic hormones be reserved for adults only.

An alternate solution to the problem is sorely needed. Removal of criminal penalties for personal use and regulation as prescription drugs would help the "steroid problem" and solve some of the serious problems created by the Control Act itself. Physicians would no longer fear being arrested for dispensing moderate amounts of anabolics. Steroid users would no longer be discouraged from continuous health monitoring. Athletes would no longer be imprisoned or transformed into criminals. Those suffering from AIDS or age-related infirmities would have greater access to needed medications. Funding for anabolic steroid research would probably increase. There would be a major shifting of the steroid supply to favor legitimately produced, FDA regulated products. Clearly, the two greatest dangers in the use of anabolic steroids today - the use of tainted black market substances and the failure to be medically monitored and supervised - would be averted by this approach. Of course, anabolic steroids would be restricted to adults, and non-physicians caught trafficking in steroids, especially selling steroids to minors, would be subjected to stiff criminal sanctions.

As the medical community begins to recognize the benefits of steroid therapy to an aging society and as new research suggests lesser health risks than previously reported, prohibitionists will more heavily rely upon issues of sportsmanship and fair competition to justify the Control Act. But abolishing the national and state criminalization approach to steroids would not require the international sports bodies to change their policy. They would be completely free to continue their ban on ergogenic substances including steroids in order to promote fair athletic competition. Improved drug testing technologies and more frequent random testing procedures could be employed to help ensure that adult athletes wishing to compete in such events would need to refrain from using such substances.

Obviously, there are obvious political hurdles standing in the way of such reformation. The view of anabolic steroids as "deadly drugs" for mature adults must be discarded based on the medical and scientific truth. Congress and law enforcement authorities would have to accept that some adults who are not competitive athletes would be legally able to use anabolic steroids for cosmetic physique enhancement under the supervision of a physician. The current scheme, however, with its unsupervised self-administration of potentially dangerous black market products and the arrest and prosecution of American adults seeking physique enhancement, is infinitely worse.

COPYRIGHT (c) 1999 by Rick Collins. All rights reserved. No commercial reproduction of any portion of this material is permitted without the express written permission of the author.