The use of legislation in relation to controlling the production, movement, importation, distribution and supply of performance-enhancing drugs in sport (PEDS)

Summary
The present research builds on the results of the first phase of the research project into legislation on trafficking of performance-enhancing drugs conducted in 2008 and is designed to produce an analytical report on the status of anti-doping legislation in UNESCO Member States concerning the production, movement, importation, distribution and supply of performance-enhancing drugs. The three central elements of this phase of the research are to:

1 - Develop a questionnaire to gather information about the following:

a) Whether Member States have enacted legislation specifically designed to address the production, movement, importation, distribution and supply of performance-enhancing drugs; the scope of such legislation; the court in which the cases are heard; the number of cases investigated and prosecuted; the agencies responsible for investigation and prosecution; the number of successful convictions; and the penalties imposed.

b) Whether amendments have been made to existing legislation on the production, movement, importation, distribution and supply of recreational drugs specifically to include performance-enhancing drugs; the scope of such legislation; the court in which the cases are heard; the number of cases investigated and prosecuted; the agencies responsible for investigation and prosecution; the number of successful convictions; and the penalties imposed.

c) Whether amendments have been made to existing legislation on the control of medicines and pharmaceuticals to address the production, movement, importation, distribution and supply of performance-enhancing drugs; the number of cases investigated and prosecuted; number of successful convictions; and the penalties imposed; and whether any problems were encountered in the application of medicines and pharmaceuticals legislation to cases concerning performance-enhancing drugs.

d) Whether any other legislation has been used to address production, movement, importation, distribution and supply of performance-enhancing drugs.

2 - Undertake additional data collection from selected respondents as required for purposes of clarification of the survey data and in order to provide greater depth of analysis. The basis for the selection of Member States for additional data collection will include:

a) evidence of effective implementation of legislation specifically designed to address the production, movement, importation, distribution and supply of performance-enhancing drugs;

b) leading sporting Member States (defined as being in the top 15% of the summer or winter Olympic medals table) which have not introduced legislation specifically designed to address the production, movement, importation, distribution and supply of performance-enhancing drugs; or

c) evidence of effective implementation of existing legislation which addresses the production, movement, importation, distribution and supply of performance enhancing drugs.

3 - Undertake an analysis of the data collected and prepare a comprehensive report on the research findings.
 

Methodology

The questionnaire was designed in conjunction with the UNESCO Programme Specialist and it went through several iterations before final approval in December 2011 (see Appendix A). The initial intention was to distribute the survey to those Member States that had responded positively to questions 3, 3.1 and 3.2 in the UNESCO Anti-Doping Logic (ADL) survey of 2011 – 99 States Parties in total. Questions 3, 3.1 and 3.2 asked about the extent to which Member States had adopted ‘measures’ to prevent the production, trafficking, importation and distribution of prohibited substances to athletes (hereinafter referred to as ‘PEDS trafficking laws’). Following discussion with staff of the World Anti-Doping Agency it was agreed to distribute the questionnaire to all 153 States Parties to the Convention apart from those that had indicated that they had ‘no measures in place’ when responding to the UNESCO ADL survey. The intention was to obtain responses from those in government directly responsible for ensuring their country’s compliance with its commitments under the terms of the UNESCO Convention Against Doping in Sport. In all cases the questionnaire was completed by a government official closely involved in their country’s anti-doping efforts.

The analysis was organized by reference to two key variables: first, the type of legislation that the countries had in place; and second, by the ‘sporting’ success of the country. In the cumulative analysis, information is presented – as reported by respondents, and organized by the authors according to type of legislation – on specific offences, penalties, agencies responsible for enforcement, cases prosecuted, as well as whether or not this information is being reported to Interpol. Specific information and comments provided by respondents were used to develop the analysis although they were not all cited specifically.

Results
The research identified two broad approaches to tackling the issue of the production, movement, importation, distribution and supply of performance enhancing drugs in sport. The first approach was to introduce laws specifically designed to address PEDS trafficking and the second was to utilize and/or amend existing legislation concerned with recreational drugs. Successful sporting countries were more likely to be found among the former group. More importantly countries which had introduced PEDS-specific legislation were more likely to have a NADO which is actively involved in the investigative process concerning PEDS trafficking. In addition, countries which had introduced PEDS-specific legislation appeared to be more likely to pursue cases through to conviction. However, two caveats are required, first, where PEDS-specific legislation is absent identifying PEDS cases from among the range of general drugs cases is not easy and second, much of the PEDS-specific legislation is relatively recent and there is often a time-lag between the introduction of new legislation and its incorporation into the routines of the police, the prosecution services and the courts.

Although much of the PEDS-specific legislation is relatively recent there is sufficient evidence to conclude that having such legislation adds substantial momentum to tackling PEDS trafficking.

Successful sporting nations are more likely to have PEDS-specific legislation in place which covers all prohibited substances on the WADA list and are also more likely to have an active NADO. By implication they are also more likely to have governments which are supportive of anti-doping activity and have a regulatory culture.

There are also successful sporting countries, such as the United Kingdom, Australia and the United States, which have a strong public commitment to antidoping and which have active NADOs, but which rely on a range of more general legislation to tackle PEDS trafficking. While all of these countries can point to successes in prosecuting PEDS trafficking cases they tend collectively to be less active or effective in pursuing PEDS trafficking cases through to successful conviction. In large part this is due to the limited coverage by existing legislation (whether medicines, recreational drugs, public health etc.) of substances on the WADA list. The United States, which has made considerable progress in tackling doping in sport in recent years, is a good example. PEDS trafficking falls under the remit of the Controlled Substances Act (CSA), but ‘there is not a comprehensive set of PEDS chemicals included within the purview of the CSA; rather, only those PEDS which have additional characteristics of abuse potential or health risk are listed under CSA’. While anabolic steroids, for example, are covered and traffickers can receive a prison term ‘many substances of concern for PEDS are not addressed under CSA scheduling’ and are unlikely to be addressed as ‘the criteria for inclusion of any particular substance under CSA and scheduling purview are distinct from their impact on performance-enhancement, per se’.

The problems mentioned above are often a reflection of the broad philosophy of a government (non-interventionist and/or neo-liberal) or a country’s constitutional and legislative tradition (strong federalism). They tend to reflect the traditional characteristics of the role of the state in the country, which has particular impact on the legislative/regulatory framework. However, even when there is strong governmental commitment and where coverage of substances on the WADA list is substantial there can still be problems as illustrated by the evidence from the Netherlands. Research conducted for the Dutch Ministry of Justice found that since the amendment of the relevant legislation in 2001a number of bottlenecks remain. The report referred to:

1) the ‘low priority given to trade in doping’ by police and the prosecution service;

2) the lack of familiarity with PEDS ‘doping cases amongst the police and the Public Prosecution Service’;

3) that it is ‘quite difficult to find records of doping trade in the registrations’; and

4) that the ‘number of criminal cases has not increased after the amendment of the Act’.

However, more positively the report concluded that despite these weaknesses there has been an increase in the number of investigations started, that more sophisticated investigation techniques have been deployed and that ‘cooperation between the Public Prosecution Service and the FIOD-ECD [customs and tax agency] with regard to doping investigations have intensified during the last few years’. As is clear from the summary data provided, the relatively low priority given to PEDS trafficking is a problem common to a number of countries.

Two models of tackling PEDS trafficking have emerged. Model I has PEDs specific legislation and a central role for the NADO as intervening variables while model II has a more diffuse set of agents as intervening variables.

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The use of legislation in relation to controlling the production, movement, importation, distribution and supply of performance-enhancing drugs in sport (PEDS)