23 April 2012

Changes to Steroid Legislation - swings and roundabouts

Changes come in to force today which affect steroids and other performance enhancing drugs and ancillary compounds.

The key changes are:
  • to remove the requirement that drugs are in a "medicinal form" making possession of non-pharma products lawful and 
  • to introduce a requirement of personal custody at time of importation, making purchasing on line unlawful.
 The changes which affect drugs in Schedule 4ii of the Misuse of Drugs Regulations can be found here: http://www.legislation.gov.uk/uksi/2012/973/contents/made and a more helpful Explanatory Note here: http://www.legislation.gov.uk/uksi/2012/973/pdfs/uksiem_20120973_en.pdf
The Explanatory Note explains:

Amendments relating to Schedule 4
7.7 At present the provisions specified in regulation 4(2) of the 2001 Regulations (the prohibition on importation and exportation of controlled drugs) are disapplied in relation to drugs listed in Part II of Schedule 4 to the 2001 Regulations in respect of the prohibition on importation and exportation when imported or exported “by any person for administration to himself” and when contained in a medicinal product.

7.8 The instrument will make clear that regulation 4(2) of the 2001 Regulations is limited to importation and exportation of drugs listed in Part II of Schedule 4 when carried out in person by the same person who then administers such drugs to himself. The instrument also removes the term “medicinal product” from the 2001 Regulations (including by omitting the definition of such term contained in regulation 2(1)) with the effect that the term “medicinal product” no longer applies to provisions under the 2001 Regulations in general.

The change made to remove the requirement for the products to be a "medicinal product" represent an interesting shift. The rationale for doing so when the ACMD advised the Government to remove this wording was that  
"The ACMD do not believe the term ‘medicinal product’ assists in the enforcement or legal framework for anabolic steroids under the Misuse of Drugs Act 1971. The ACMD consider that the term ‘medicinal product’ should be removed from the legislation as the term does not serve a recognised purpose"


This was clearly not a view shared by the Crown Prosecution Service or, for that matter the Court of Appeal who in R. v Foster upheld the conviction of Foster who was found to be in possession of Stanozolol in a non-pharmaceutical form (capsules branded "No Bull".) The case summary is here

Foster's case, and the later prosecution of Graham McAdams  whose guilty plea was largely influenced by the precedent set by Foster, seemed to indicate a willingness on the part of the CPS for possession of non-pharmaceutical steroids.

These two cases made it more likely that any compounds produced by Underground Labs (UG) would be held to be prohibited under UK law.

 The decision to remove the term "Medicinal" from the legislation means that henceforth, possession of UG lab-produced steroids will not be an offence in the UK if this possession is for personal use. This is a mixed blessing. On the one hand it means that prosecutions arising from legislative confusion such as Foster and McAdams should be a thing of the past. However, as such cases were rare, this has no huge implications.

More importantly, it means that there is no legal disincentive to possessing UG labs drugs, which may not be produced to the same standards as pharmaceutical products. The worry therefore is that this legislative change will increase the popularity of UG compounds, despite the increased risk.

The other key legislative change is to introduce a requirement that importation of Schedule 4ii drugs be undertaken by the person using the compound. Effectively this means that the user needs to have the drugs in their personal custody at the time of importation. This in theory makes it unlawful to import by post and restricts people being able to buy compounds on-line.

It will probably result in an increase in seizures of drugs being imported in to the UK, especially in bulk. But I suspect in terms of individuals ordering on line, the impact may not be so profound, especially where postage is taking place within the EU. Small quantities of packaged steroids, with a low odour, are not going to be massively easy to detect and so the quantity that slip through are likely to be significant. Those that are seized will be destroyed but it is unlikely to result in an upsurge in prosecutions for unlawful importation.

The bigger risk that concerns some commentators in the field, is that it will result in an increase in UK-based manufacture to avoid the issue of importation. This would mean more labs being set up in the UK either making steroids from scratch or packaging imported powder testosterone.

Only time will tell if these fears are well founded or not. But it is certainly a cause for concern that the legislative changes could see an increase in UG lab drugs whilst at the same time depenalising the use of such compounds.

Advocates of the legislation will probably argue that the previous legislative wording had resulted in a proliferation of steroid availability in the UK. However, with no effective research in to the current levels of steroid use in the UK, the incidence of complications arising from steroid use, and the current ratio of UG to Pharma products used, it will be well nigh impossible to demonstrate if the legislative changes have had a benign impact or not.