The criminalisation in English law of anabolic steroids (AS) represents the use of a powerful regulatory and socialising machinery against a statistically insignificant group of people. It is perhaps important to realise that the people most likely to be affected by a proscriptive use of the criminal law would be those who are not actively competing in any sport but keen to improve their image, or in some cases self-perception. The use of performance enhancing drugs is firmly ingrained within certain sectors of the non-sporting community perhaps keen to appear to have attained a socially desirable physique, power or an image of healthy athleticism.
The use of AS for cosmetic purposes, or in those sports where there is no proscriptive control over the use of commonly prohibited substances is well documented . The perception, and the reality, is that the drugs do work, although the side effects might be potentially harmful for the uninformed user. More education might be a sensible reaction to perceived problems. The lack of effective advice and counselling has been identified by commentators and, in the current climate, any message is less likely than ever to reach its target audience effectively.
Current Steroid Law in the UK
Two main statutory controls exist in relation to drug use in the UK: The Medicines Act 1968 and The Misuse of Drugs Act 1971 (“MDA”). The former essentially regulates, through a licensing system, how drugs are marketed and sold. The latter is targeted against the criminal production, supply and possession of various compounds scheduled within it, and is concerned to limit to defined groups, for legitimate purposes, the availability of a range of drugs which have been determined to pose a significant threat to society.
A wide selection of performance enhancing drugs were scheduled to be regulated under the MDA in 1996. Up until this time the only controls that existed were those in place under the Medicines Act in common with most other drugs. At the time of the law change it was difficult to understand the purpose to which the law was being directed. Home Office press releases at the time were kept very much with the “war on drugs” mantra in mind declaring a “battle to stamp out abuse of steroids…”. At the time however there was, and remains, little evidence of the drugs so controlled moving beyond the relatively small and specialist pockets of use they inhabit. The introduction of the law has led to uncertainty: an uneasy position for the user, and a less than clear mandate for intervention for the enforcement authorities. In seeking to deal with a perceived social harm related to drug taking, the law change could in fact mean actual harm is inflicted upon users.
The Regulation Process
A substance becomes subject to MDA regulation after recommendation by the Advisory Council on the Misuse of Drugs (“ACMD”). The Council has a role laid down by the MDA, which places it under a duty to:
“keep under review the situation in the [UK] with respect to drugs which are being or appear to them to be likely to be misused and of which the misuse is having or appears to be having harmful effects sufficient to constitute a social problem…”
In particular the Council is required to consider such means as: restricting drug availability; ensuring provision of treatment or rehabilitation facilities; co-ordinating relevant professional services; providing for education; and promoting research into matters necessary for the prevention of the misuse of the drug in question or on any of the social harms that it may create. A current example involved the question as to whether GHB should be brought under the control of the MDA. Sold to night-clubbers as “liquid ecstasy” and as a sleep-promoting training aid to body builders, the ACMD has shown reluctance to reschedule it.
The ACMD first examined AS in the late 1980’s, but concluded at that time the social harm test was not fulfilled. The issue was revisited in 1993 after publication of Department of Health sponsored research, investigating use-patterns and potential public health concerns . On this occasion the ACMD felt compelled to recommend that AS be brought under the control of the Misuse of Drugs Act 1971. It should be noted that the report itself explicitly stated that it did not consider the social implications of use and remained confined to medical concerns . In particular the risk of the spread of blood borne disease such as HIV and hepatitis through unsafe injecting practices were cited. Harm reduction methods such as greater education and other health promotion activities were recommended. The Council advised that mere possession of AS should not be an offence under the Act and the Government seemed to legislate accordingly.
Problems with Anabolic Steroids under the MDA
Delegated legislation in the form of Statutory Instruments was passed to place AS within class C of the MDA. The MDA sets out offences in relation to the manufacture, supply and possession of the drugs scheduled within it. These drugs are classified as either class A, B or C in relation to their perceived harm and/or abuse potential. Class A drugs are subject to the harshest penalties, and would include drugs such as heroin, cocaine and LSD. Although AS are subject to the lowest possible penalties under the MDA, it is possible for a supplier to receive a maximum three year sentence. The MDA restricts the manufacture and trafficking of AS by virtue of schedule three to the Act; it also restricts the supply of the drugs, by virtue of schedule four, but should allow the possession for personal use. That possession is not criminalised is subject to the proviso that the steroid in question is in the form of a medicinal product. This has become the problem area in the UK law as will be examined below. At a general level, concerns attach to the de facto lack of positive influence the authorities are able to exert over an illicit market which, by definition, operates outside the normal conventions of command and control. Furthermore, concerns exist in relation to the inconsistency of application of the law, despite guidance on the issue .
Placing AS under the control of the MDA has thus led to problems of interpretation. It is clearly of concern to the user that enforcement authorities are unsure as to their exact powers. The main problem would appear to relate to the fact that the definition of a medicinal product does not appear in the MDA itself. Given that this term is crucial to the operation of the schedule, this would appear to be a major oversight.
The police and customs are not used to dealing with AS in the way that they are familiar with other drugs of “abuse” controlled by the MDA. Anecdotal reports of drug squads using “underground” body-building magazines for guidelines as to current trends suggests the need for proper thresholds to be established in order not to penalise the user as opposed to the genuine supplier. There is no consistency of approach with only a handful of police forces in the UK, according to the Home Office’s statistics, actively pursuing AS users. It would therefore all seem to be somewhat of a lottery for the user unlucky enough to be brought into contact with the law.
Since AS were included in the drug seizures statistics, there has been a year on year increase in the levels of seizure and the amounts involved. What is perhaps the most disturbing aspect of these figures from a legal perspective is the number of people being convicted on a charge of possession of these drugs. It would appear that those who have been convicted on possession charges have all pleaded guilty to the charge, which has in every case been a secondary aspect of some main offence. An example here would be the cases of a group of doormen (bouncers) who were convicted of supplying MDMA (ecstasy) and who opted to plead guilty to a charge of possession of AS. MDMA is a class A drug, with a potential (although unlikely) life sentence attaching to a conviction for its supply. Possession of a class C drug such as AS would only attract a fine in by far the majority of cases and thus it is not probably worth the argument, if a criminal record is going to occur in any case. Where the person is not being charged for any other offence however, the position is obviously far more serious a threat to an individual’s liberty.
The law is clear, as is the rationale for the law change, in stating that mere possession was not to be viewed as an offence, especially given the medicinal product limitation. In fact the law goes further to even exempt the importer or exporter of AS as long as they are medicinal products and solely for self-administration. Could the law be any clearer? The problem relates to what is or isn’t a medicinal product.
Defining a “Medicinal Product”
A medicinal product is awarded its status as such by reference to a European Community Law Directive . The Directive seeks to harmonise Member States’ laws regarding medicinal products and thus seeks to afford some form of consumer protection for citizens of the EC. The definition of a medicinal product includes reference to something that is able to “…restore, correct or modify physiological functions…” . This definition has even been held to apply to a hair-restorer by the European Court of Justice , thus applying it to a proprietary AS would seem to be a natural assumption.
In the UK the responsibility for the regulation of medicinal products placed on the market and intended for human use falls on the Medicines Control Agency (“MCA”). The MCA provides guidance in the form of published notes to further explain certain of the definitions that are important. As well as what EC law has stated, the guidance offers a clue as to what a medicinal product is when it offers “what impression of the product ‘an averagely well informed consumer’ would be likely to gain.” I don’t think it is beyond the realms of logic to assume that the committed AS user is well aware of what they are taking (an above averagely well informed consumer, I would imagine) and the reason why they are taking it. Thus it would seem to be somewhat bizarre to suggest that what would in normal use be a proprietary medicinal product by virtue of the Directive definition set out in Article 1 would not satisfy the test for being exempt from the prohibition on possession of AS under the MDA.
So, taking both the appearance of the product and the therapeutic effect, there would appear to be two reasons why any person caught in simple possession of a substance controlled under Schedule 4 of the MDA should not be held to commit an offence. It would appear to be absolutely clear that the majority of these compounds are medicinal products. This point is also reinforced when considering that amyl nitrates are considered medical products by the MCA . The compound, a vaso-dilator with a medicinal use in the treatment of, amongst other things, angina, has long been used recreationally as a sex aid, as well as being firmly established as a part of the night clubbers’ experience. By ensuring that the drug is classed as a medicinal product, more effective controls are able to be imposed to restrict its sale, which, however one views the libertarian issues involved, has a certain compelling logic to it.
Although the MCA are at pains to stress the non-definitive nature of the guidance, a further conundrum is provided later in the guidance note when attempting to establish the second part of the Directive definition in relation to the restorative, corrective or modifying nature of the substance in question, as outlined above. The guidance states that “If [the product] contains any ingredients with a significant pharmacological effect, this will indicate that the product may be medicinal by function.” The guidance then considers various herbs that have well documented pharmacological effects, such as for example the sedative effects of valerian, and states that if they are present in sufficient quantity in a product this will be “considered as evidence that the product is intended for a medicinal purpose.”
Finally in this connection it is offered that certain products which may be claimed as being primarily cosmetic or nutritional may still be classed as medicinal products if they possess “significant” pharmacological effect. It would be on this basis for example that there would be any reclassification of substances such as St. John’s Wort (so-called natural Prozac’). There is obvious utility in the law by ensuring some basic standard of protection for consumers. Marketing a substance that has a profound pharmacological effect by any other claims as to its effects as a means to avoid the rigours of the necessary licensing that prudence and the law demands, is potentially dangerous and rightly prohibited. However, there is a danger that the law, inconsistently applied, could jeopardise certain sections of the community who would have no other reason to be in contact with law enforcement.
Conclusion
I find it difficult to sustain the argument that AS are not in the form of medicinal products, at least in the majority of cases, and to suggest otherwise is a seemingly perverse application of the law. It is surely inconsistent with the policy of the law, which is supposed to promote certainty, to be able to choose a favourable and, frankly, unsustainable interpretation of the term medicinal product in order to secure convictions under the MDA. It would appear that prosecution claims that AS, at least when used outside medical supervision, are not capable of definition as medicinal products are incorrect with the result that the law is being misapplied unjustifiably. The fact that none of the convictions so far imposed has been appealed means that there has been no appellate court consideration of this issue. It is difficult to offer even a purposive interpretation of the fact that certain people caught in simple possession of AS are convicted if one considers that the Home Secretary of the day had no intention to criminalise their mere possession, stating that:
“we propose to change the law and make it an offence, without authority to produce, supply or possess or import or export with intent to supply, anabolic steroids and other similar drugs. In accordance with the recommendation of the ACMD it would not, however be an offence simply to possess these drugs in the United Kingdom.”
The then Home Office minister Tom Sackville MP was more blunt when he stated that “these measures are aimed primarily at those who profit by selling these drugs to body builders and sportsmen.”
It could also be observed that the real policy of the Directive, that of consumer protection, is undermined if such arbitrary interpretations are to be adopted and continued. This would remain so, in the case of scheduled AS, even if the product in question were inert, or a counterfeit preparation marketed illegally under the guise of a proprietary product. The issue therefore remains clouded and it would be sensible to argue for some clarity and consistency of approach in the application of the law.
Thus it would appear that the UK’s declared rationale to deter trafficking and supply offences in relation to AS are comparable to those adopted in the USA. It could also be concluded that the failures inherent in the system prove more of a threat to public health, or at least that of the health and liberty of consumers of these drugs, than a means to combat the perceived problem of AS use. Criminalisation undoubtedly increases the criminality involved in the supply chain and, whilst tautologous at first glance, it can be observed through commentators on the American experience that it is indeed the case. The criminality involved alters, it becomes more intense, more professional and with more at stake. It is not the drugs that are harming individuals; it is the response of the lawmakers that prevents a sensible approach that is the real threat.
COPYRIGHT (c) 2000 by Jason Lowther. All rights reserved. No commercial reproduction of any portion of this material is permitted without the express written permission of the author.
About the author
Jason Lowther is an Associate Professor of Law at the University of Plymouth since 2004. He is an Environmental and Tort Law lecturer and researcher. He occasionally writes about steroid law and anti-doping issues.
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