Designer Anabolic Steroid Control Act – Worst Law Ever?
First, I want to thank Marc, Chad and the rest of the fine folks here at Tiger Fitness which is endeavoring to truly become “one stop shopping” for anyone and everyone in the sports nutrition and training world. Great job folks! Thanks for giving me the slate to write what I want to write and having the stones to put it up on your website for all to see.
So this article – my first here for Tiger Fitness – originally was supposed to be a discussion about misconceptions regarding carbohydrates in bodybuilding and sports training. However, I’m going to take my first piece at the Tiger Fitness website in an entirely different direction because of some events and discussions I have been involved with over the last few days with about a half dozen industry insiders including some company owners and regulatory attorneys.
DASCA 2014 – Designer Anabolic Steroid Control Act
I want to talk about a really bad federal law – DASCA 2014. For those of you who are not up on the latest “goings on” in the world of shadowy, gray, designer hormone sales, DASCA 2014 is a month or so old law that is supposed to “close all the loopholes that allow evil and greedy people to poison the innocent youth of America!” If you have not seen or read DASCA 2014 as it was signed into law, here is a link to it. I will incorporate the law in its entirety by reference for further aspects of this article.
It’s not the additional 25 or so compounds the feds added to the ever-expanding controlled substance list of stuff they don’t want you to have that I find pernicious. No, I don’t think its exactly OK that all of these 25 or so compounds are now federally scheduled C-III drugs but rather it’s the incredible vagueness – likely deliberate in intent – of the rest of the law that is illustrative of the yet more government over-reach we have seen in the last six years under the Obama administration.
Witnesseth thus from said law:
Section 2 – Amendments to the Controlled Substances Act
(i) Subject to clause (ii), a drug or hormonal substance (other than estrogens, progestins, corticosteroids, and dehydroepiandrosterone) that is not listed in subparagraph (A) and is derived from, or has a chemical structure substantially similar to, 1 or more anabolic steroids listed in subparagraph (A) [emphasis added] shall be considered to be an anabolic steroid for purposes of this Act if—
(I) the drug or substance has been created or manufactured with the intent of producing a drug or other substance that either—
(aa) promotes muscle growth; or
(bb) otherwise causes a pharmacological effect similar to that of testosterone [emphasis added]; or
(II) the drug or substance has been, or is intended to be, marketed or otherwise promoted in any manner suggesting that consuming it will promote muscle growth or any other pharmacological effect similar to that of testosterone [emphasis added];.
Conveniently, there is no definition in the body of the law or published in the Federal Register or as yet, judicial precedent regarding these types of chemicals just as to what “…chemical structure substantially similar to…pharmacological effect similar to that of testosterone…”, means with any exactitude. So it’s as clear as mud and I am pretty sure it is meant to be such (conspiracy theorist that I am!) in order to provide prosecutors with the widest latitude possible in bringing cases forward. In some (many?) instances these soon-to-be accused people may have zero intention of violating this law and in fact, may have gone to great pains to insure that they were not violating this law.
We have seen such vagueness in federal drug law before. The Federal Analog Act of 1986, which deals primarily with “designer” amphetamines, psychedelics and opiates (and GHB/GBL type compounds) likely served as a template here regarding the obtuse, abstract and likely legally questionable language (see here, Erowid has a great summation).
Will DASCA 2014 Stand Up in Court?
Much like the 1986 law, I suspect the language in DASCA 2014 will end up being challenged in federal court just as soon as someone is indicted for violating DASCA 2014. If we look to the federal districts for guidance to how this might all shake out, we see the following cases:
USA versus Damon S. Forbes (1992)
In 1992, the federal court for the District of Colorado was asked to decide if a compound called “alpha-ethyltryptamine” was a controlled substance analog because it may have – maybe – a chemical structure “similar” to that of the controlled substances dimethyltryptamine and diethyltryptamine.
The court found that, “because the definition of ‘analogue’ as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness.” This was a very good decision by the court. The reason being that under United States constitutional law, a law is “void for vagueness” (and thus not enforceable) if it is too vague to be understood by the average John Q. Public. There are several reasons why a law might be considered “void for vagueness” – if the average person can’t generally figure out what people are being regulated, what specific actions are illegal, and/or what punishments can be implemented are just some of these reasons. Further, a law is usually “void for vagueness” if the authority it provides to a judge or prosecutor is so extensive it would lead to arbitrary prosecutions. Essentially, no person is to risk criminal prosecution because that person can’t reasonably understand what actions are prohibited under that law. Additionally, something called The Rule of Lenity allows judges to rule in favor of a defendant when there is clear ambiguity in a criminal law.
The big issue with the Colorado decision is although it provides a very solid judicial precedent, it is likely a precedent that is limited in geographical scope to the federal district of Colorado. Thus, if you live and get popped in Alaska or Florida or California? Well…that is a bad hit for you!
I suspect the language in DASCA 2014 will end up being challenged in federal court just as soon as someone is indicted for violating DASCA 2014.
USA versus Washam (2002)
This case was decided ultimately at the appellate level coming out of the eighth district (parts of the Midwest) and had to deal with whether 1,4-butanediol was “an analog” of the controlled substance GHB. The district court had ruled that indeed, it was an analog and the appellate court upheld this decision – albeit there were some other mitigating factors regarding the behavior of the defendant. So if you live and get popped in certain parts of Nebraska, Iowa, Arkansas, Missouri, or both Dakotas…well you get the idea.
Because DASCA 2014 is so vague in its stunning failure to define what “chemically and pharmacologically similar to testosterone” (or other drugs on the list) really means on a pragmatic level, we could have a situation where one designer steroid is considered a controlled substance on the West Coast and not a controlled substance on the East Coast! Yeah, that is legal insanity. But it’s a plausible outcome nonetheless.
Of course all of this is really just a dog and pony show. And this law is absolutely not needed. Here is why – DASCA 2014 was ostensibly passed under the rube that there were just gobs and more gobs of designer steroids being openly sold on websites as “dietary supplements.” A credit card and a click of your mouse and voila! A bottle of your designer steroid of choice could be shipped in a brown box right to your door step in a day! How cool was that?
Well, it was not cool at all because none of these designer steroids – certainly none of the new 25 or so compounds added by name to the controlled substance list – could even remotely be considered dietary ingredients or dietary supplements in the first places under DHSEA 1994! To remove these items from interstate commerce, all the FDA (and not the DEA) needed to do was enforce those current federal laws that were enacted over two decades ago. DASCA 2014 is – if the goal is really to remove these designer steroids from being sold in the USA as “dietary supplements” – is completely duplicitous and this unneeded. My opinion? DASCA 2014 is more political puffery and grandstanding than an effective tool to save children from evil doer’s. There are more “cryptic and latent designs” in the ends of this noxious law than merely saving the children yet again.
So there is so much more “win” here! It’s likely about the money – isn’t it always? – and how the federal government has a history of taking it away from the citizenry with little to no effective due process.
More From DASCA 2014
(C) In the case of a violation of paragraph (16) of subsection (a) of this section by an importer, exporter, manufacturer, or distributor (other than as provided in subparagraph (D)), up to $500,000 per violation. For purposes of this subparagraph, a violation is defined as each instance of importation, exportation, manufacturing, distribution, or possession with intent to manufacture or distribute, in violation of paragraph (16) of subsection (a) [emphasis added].
(D) In the case of a distribution, dispensing, or possession with intent to distribute or dispense in violation of paragraph (16) of subsection (a) of this section at the retail level, up to $1000 per violation. For purposes of this paragraph, the term “at the retail level” refers to products sold, or held for sale, directly to the consumer for personal use. Each package, container or other separate unit containing an anabolic steroid that is distributed, dispensed, or possessed with intent to distribute or dispense at the retail level in violation of such paragraph (16) of subsection (a) shall be considered a separate violation [emphasis added].
Let’s look at “C” first. So if you decide to order some “steroidal powder” from overseas for personal use with zero intentions of telling anyone here in the USA that you are doing such – never mind planning to sell or sample such to your friends at all ever – and this steroidal powder is not even something that is explicitly noted as a controlled substance by name but may or may not be considered chemically or pharmacologically similar to testosterone (whatever that means) you can be fined up to half a million dollar for each package you try to import. So a small parcel of 50 grams of powder mailed to you from Thailand and you can be on the hook theoretically for a lotto type fine. Awesome!
Now let’s look at “D” – you own a supplement or nutrition store that used to sell this type of stuff – whether you knew it was illegal or not does not matter here. The new law passed and you responsibly and wisely pulled all this stuff from your shelves but just stuffed the three dozen left over bottles of various stuff into a brown box and put it into your basement or attic or even the trunk of your car. Hey, what else are you going to do with it? You’ll figure it out later, right? Just can’t keep it on the shelves because its – abstractly- “illegal now.” Oops! Each “separate unit” (each tablet or capsule) can be looked at as a $1,000 infraction. At 60 pills per bottle and say, 50 bottles in the trunk of your car? That’s potentially three million bucks you now owe the feds! Pretty cool, eh?
Hey research chemical websites? Pay attention guys! If you do not think the DEA and the DOJ are going to look at those “SARMS” you are selling and try to smash one or more of you clowns over the head under the “pharmacologically similar to testosterone” clause to take away your money well…let’s just say I would not want to be you! Ostarine and andarine (and the other two or three being sold) pretty clearly have at least some of the pharmacological properties of testosterone that any Pubmed ninja can find. And those fractional peptides that are cleaved lil’ chunks of IGF-1 or rHGH? Yeah, chemically they may not be remotely related to testosterone but their net effects on muscle tissue might be considered pharmacologically similar to testosterone by an overzealous Assistant US Attorney? You can argue your point of view in the federal courthouse before a judge and jury who have zero scientific or biochemical background but know that “steroids are bad” because the media bleats this message out over and over again. I wish you a lot of luck! And a benefactor with deep pockets!
Oh yeah…I’d also suspect that the androst-3,5-diene-7,17-dione you’re still selling as a “PCT aid” is going to be looked at as “chemically similar” if not “pharmacologically similar” guys even if there is no keto or hydroxyl group at C-3. See below for more reasons why you’re going to want to stop dealing in this material (burden of proof has now shifted onto you from the prosecution – whether this is ultimately legal or not is not the point guys). And although DHEA – while expressly allowed under DASCA 2014 – is OK legally even if it’s a crappy compound, changing DHEA from a 5-ene compound to a 1-ene or a 4-ene might put you at risk of going to prison even if you still want to call your product, “DHEA!” Never mind making it a “19-nor” derivative!
DASCA 2014 is obviously a horrible law that will allow for the further “justified” application of other horrible laws.
The Burden of Proof Has Shifted
What’s pretty cool about this new law (for the feds and not for your constitutional rights) is a sneaky little line that was inserted to DASCA 2014 that many people just did not grasp. Or maybe they did not care?
“any person claiming the benefit of an exemption or exception under clause (ii) shall bear the burden of going forward with the evidence with respect to such exemption or exception.”
In most civilized nations and certainly in the USA we follow a rule of Ei incumbit probatio qui dicit, non qui negat – the burden of proof is on he who declares, not on he who denies! Well, until its not I guess…
So if you get popped and want to argue that the substance(s) you’re getting popped for aren’t “chemically or pharmacologically similar to testosterone” the burden of proof has shifted. You are clearly not innocent until proven guilty anymore! You are clearly guilty until proven innocent under DASCA 2014! Even the Federal Analog Law of 1986, previously mentioned makes the government prove the designer heroin your chemist developed is really chemically/pharmacologically similar to real smack. Not so for “steroids!” Yeah, I am sure the constitutional law attorneys will have a field day with this eventually. After someone gets convicted, spends time in prison and loses all their stuff. So egregious is this clause that one is presumed guilty until one proves innocence that this could actually be considered a human rights violation.
DASCA 2014 – A Human Rights Violation?
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly on 10 December 1948 in Paris. The USA is party to this. Under Article 11 it unambiguously reads: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” You want to talk about government over-reach?!? DASCA 2014 could arguably be viewed as a human rights violation. While the US Constitution does not expressly guarantee such, defendants are almost universally presumed innocent until proven guilty from extrapolations of the 5th, 6th and 14th amendments.
Your asking, “how can this possibly get any worse?” Oh but wait, there is still more!
Just to illustrate that it really is about your money – and how the government can take it away with no due process – let’s talk about those federal civil forfeiture laws that have been in the news lately. You know, when a police officer pulls you over in your car for doing 50MPH in a 35MPH zone, see you wearing a $40,000 Rolex and seizes the watch and the car because in his sworn opinion, “only people doing illegal things have expensive Rolex watches!” The feds (and local prosecutors) have used this for years to liberate ill gotten gains from drug dealers, gun runners and insider traders.
It’s a civil case, its separate from any criminal charges (even if they are not filed ultimately or you beat the case) and it’s not against “you” but it’s against “your stuff” (money, cars, property, jewelry, whatever). The systemic abuse of this law has been documented well historically and recently. Since it supposedly has a “disparate impact” on certain groups, it appears that outgoing AGOTUS, Eric Holder has decided to tighten the instances in which the feds can seize your stuff and make you sue to get it back (and again, you need to show that all the money and stuff is from legit enterprise – guilty until prove innocent again!). Remember, they get to seize and keep all your stuff if they “think” it’s derived illegally. Holder – he is such a gem isn’t he? – has decreed that the feds can no longer take your money and stuff unless they want to do it under “new rules” which at first glance seem absolutely reasonable and a great barrier to governmental abuse (citation here). Under Holder’s new rules, the feds will no longer be able to seized your money and stuff….unless…well…unless the property includes firearms, ammunitions, explosives, child pornography or other materials concerning public safety [emphasis added].
Yes more “clear-as-mud” vernacular from those sworn to uphold and protect. Just what constitutes “other materials concerning public safety?” Do you think something the DEA or DOJ believes to be an anabolic steroid might meet that definition even if you have not been convicted or even indicted for any wrongdoing surrounding such?
The worst part about the asset forfeiture law is that they can decide not to indict you or you can beat the criminal case and they still might be able to keep your money and stuff! How insane is that? Not only that, but if the feds seize all your money, and your access to money (e.g., your cars and house) how are you expected to pay for a competent attorney to help you prove your innocence and get your money and stuff back? Well, sure, I suppose that there “public defender” is going to make your situation a huge priority!
DASCA 2014 – A Power Grab
DASCA 2014 is obviously a horrible law that will allow for the further “justified” application of other horrible laws (Civil Forfeiture of Assets, etc.). Clearly, it is yet another power grab by our executive branch of the federal government and there are good arguments for DASCA 2014 being overturned – eventually – as being unconstitutional and/or void for vagueness. Until then?
In the meantime? If you don’t do anything wrong…stay safe and stay healthy friends.