Are Performance-Enhancing Drugs Illegal?

The use of performance-enhancing drugs (PEDs) is as old as baseball itself. Pud Galvin, a Hall of Famer no less, attempted to inject himself with testosterone extracted from animal testicles, which, eww. Specifically, Galvin’s 1889 cocktail consisted of this:

[S]ubcutaneous injections, of a liquid containing a very small quantity of water mixed with the three following parts: First, blood of the testicular veins; secondly, semen; and thirdly, juice extracted from a testicle, crushed immediately after it has been taken from a dog or a guinea-pig.

Notably, modern science suggests that Galvin’s “beverage” would have had no positive effect whatsoever.

Back in 2003, MLB conducted a series of tests to determine whether players were using PEDs — and, if so, how great the problem was. What happened is now a matter of record: David Ortiz and Alex Rodriguez were among a group of over 100 players who tested positive and the purportedly confidential list got leaked. But as the debate over Ortiz’s Hall of Fame candidacy accelerates in earnest, it’s created a secondary debate over how much that 2003 test should count. As Joe Posnanski notes, the test was supposed to be secret. 

I’m not going to weigh in one way or another on Ortiz’s Hall candidacy; that’s Jay Jaffe’s job, and he does it well. What I am going to do, however, is shed some light on a slightly different but related question: as to those players who used anabolic steroids and other PEDs prior to the current testing and discipline scheme, was doing so illegal?

Let’s start by clarifying one point: MLB banned the use of anabolic steroids back in 1991, so technically anyone using anabolic steroids after that was violating those rules. But as we discussed in the context of footwear, MLB as an organization has to enforce its own rules, or it waives violations. And between 1991 and 2003, MLB didn’t really even test for steroids, so from a legal perspective, its ban probably wasn’t really worth more than the paper it was written on.

On the other hand, from the perspective of federal law, this is actually a pretty cut-and-dried issue. Illegal drugs are generally classified under a law called the Controlled Substances Act, codified at 21 U.S.C. 812, which creates five categories of drugs (called “schedules”) based on a series of factors including medicinal properties, potential for abuse, and potential for dependence. The statutory schedules are incomplete, however. Instead, the complete lists are contained in Part 1308 of Title 21 of the Code of Federal Regulations. That Part of the CFR contains the rules promulgated by the Drug Enforcement Administration, which is the agency in the Department of Justice tasked with enforcing the Controlled Substances Act. Additional anabolic steroids were scheduled by the Anabolic Steroid Control Act of 2004.

Anabolic steroids are classified as Schedule III drugs.

The list of anabolic steroids covered by this restriction is contained in Part 1300.01(b). In case you’re wondering, Schedule I drugs include things like marijuana and certain high-potency opiates. Schedule II drugs are cocaine, morphine and similar opioids, dronabinol, and amphetamines.

Anyway, all of this is a fancy way of saying that anabolic steroids are only legal in the United States if they are prescribed by a physician licensed in the United States. What that also means is that, because possession of Schedule III drugs is a felony, possession of anabolic steroids is a felony. Moreover, it’s been a felony to possess many anabolic steroids since the CSA was passed back in 1970. In other words, if Mark McGwire were using a scheduled anabolic steroid in 1998, he was committing a felony. If Jose Canseco were distributing a scheduled anabolic steroid, he was committing a felony with a sentence of a $500,000 fine and a five-year prison term for a first offense. Simply put, anabolic steroids were illegal — or largely illegal — essentially for the entirety of the so-called Steroid Era.

What about Human Growth Hormone, or HGH? It’s actually not banned or scheduled under the Controlled Substances Act. It is, however, banned under the Anabolic Steroids Control Act of 1990 (not to be confused with the 2004 statute of the same name). As the DEA explains,

[A]s part of the 1990 Anabolic Steroids Control Act, the distribution and possession, with the intent to distribute, of hGH “for any use…other than the treatment of a disease or other recognized medical condition, where such use has been authorized by the Secretary of Health and Human Services…and pursuant to the order of a physician…” was criminalized as a five-year felony under the penalties chapter of the Food, Drug, and Cosmetics Act of the FDA.

In short, the use of HGH as a performance-enhancer by an MLB player is also a felony, with similar penalties to anabolic steroids.

This raises two questions. First, where does Congress derive the authority to regulate solely intrastate use of a steroid or HGH by a baseball player? And second, why doesn’t the Department of Justice prosecute those baseball players? The first question is answered by the U.S. Supreme Court in a case called Gonzales v. Raich, where Justice John Paul Stevens, writing for court, wrote that “Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.” In other words, Congress can regulate the intrastate use of a product in order to regulate the interstate use of that product.

As for the second question, the answer lies in economics. A suspension by MLB can cost a player millions of dollars, while a sentence after prosecution would be rather less than that. And it lies in burdens of proof, too: remember that MLB just has to prove that a player used a PED by a preponderance of the evidence, whilst a prosecutor must prove it beyond a reasonable doubt. That’s a much steeper hill to climb. At the same time, however, baseball hasn’t been immune from criminal prosecutions; Juan Carlos Nunez, among others, served prison time for his involvement in distribution of steroids as controlled substances. At the same time, that the use of PEDs is illegal helps explain why Congress took such a keen interest in the issue back in 2005.

This, obviously, doesn’t settle the question of whether PED users were or are, in fact, cheating at the game. But it is pretty clear that, absent a valid prescription, they are cheating the law. As to what that means… I leave you to draw your own conclusions.