You’ve written a lot about doping rules, but I am still a little unclear about the term “strict liability,” when it comes to one kind of violation.
The reason I ask is that I am resuming training after a two-year layoff (because of a new baby) and part of my program includes a lot of food supplements and occasional energy drinks. I know that riders in the past have been convicted of doping even when they make the case that their violation was a result of an accident. I am not sure that it’s even possible to avoid the risk of consuming a contaminated supplement, when you consider the places that make these things.
What bothers me is that I risk two years off the bike again – this time because of suspension – through no fault of my own. Is that fair?
I have stirred this hornets’ nest before, so what the heck. My first advice is to avoid using those “food supplements and energy drinks” and speak with a qualified coach, or more precisely, a nutritionist who can guide you through a maze of questions about how you can achieve the same results with actual food.
I think it was two or three years ago when I wrote about “tainted” supplements and the “unregulated” industry that produces them. A representative of that industry did set me straight in pointing out that the U.S. Food and Drug Administration does hold regulatory authority over the supplement industry, particularly under the provisions of the Dietary Supplement Health and Education Act of 1994 (DSHEA). The DSHEA authorizes the FDA to take action “against any unsafe dietary supplement product after it reaches the market.”
Food supplement manufacturers are also responsible for compliance with Dietary Supplement Current Good Manufacturing Practices, comply with labeling requirements and report to the FDA any “adverse events” that are associated with use of the product.
What manufacturers do not need to do, however, is register products with the FDA or get FDA approval for those products before bringing them to market.
In other words, it’s a regulatory framework that, in my mind at least, conjures images of barn doors and long-gone horses.
It’s for those reasons that I continue to hold the opinion that taking dietary supplements – especially if you are an athlete subject to the provisions of the World Anti-Doping Code – is a risky proposition.
As you mentioned, there are several cases involving athletes who apparently unknowingly consumed banned substances while under the impression they were merely taking supplements or perfectly legal energy products.
Now retired, Scott Moninger tested positive for norandrosterone in 2002. Upon learning of the result, Moninger forwarded his opened bottle of “Doctor’s Brand L-Tyrosine,” – an amino acid supplement – to an independent laboratory, which found that 19-norandosterone was present in the bottle. Tests on other, sealed, bottles showed no sign of contamination.
While the panel did not fully accept the argument that the supplement was the cause of the positive test, they did consider that and other evidence – Moninger’s unsullied 21-year cycling career and character testimony from other riders – as mitigating factors and imposed a one-year, as opposed to two-year, suspension.
The following year, Amber Neben tested positive for 19-norandosterone – although at significantly lower levels – and was suspended for six months.
In 2009, Brazilian rider Flavia Oliveira tested positive for Oxilofrine and was suspended for two years. Oliveira appealed to the Court of Arbitration for Sport and was able to show that an energy supplement she used to counter the fatiguing effects of prescription allergy medications was mislabeled and did not mention that it contained the aforementioned banned substance. Nonetheless, she was still suspended for a total of 18 months.
I believe Oliveira has a lawsuit pending against the manufacturer for its failure to list all ingredients on its label.
It’s important to note that all three of these decisions were based on critical language in World Anti-Doping Code:
“It is each athlete’s personal duty to ensure that no prohibited substance enters his/her body. Athletes are responsible for any prohibited substance or its metabolites or markers found to be present in their bodily specimens.”
That is the “strict liability” language of the Code, since it eliminates the “intent” element of the violation. In other words, an anti-doping agency does not need to show that you intended to consume a banned substance, only that it is present in your body.
To varying degrees, the arbitration and appeals panels are allowed to view a lack of intent as a mitigating factor when considering a penalty, but not when determining whether or not a violation occurred.
So, as to your question, Aimee, I would suggest you do your best to avoid supplements and consult with a nutritionist to determine how your dietary needs can be met with actual food. Yes, I recognize that the FDA has authority over the industry, but all three of the cases I mentioned occurred after the agency was granted that authority.
If you test positive, that “adverse event” may (or may not) warrant the attention of the FDA, but that’s after the fact. You, on the other hand, are stuck with a positive test result, possible grounds for a lawsuit and the job of showing an arbitration panel that there are mitigating circumstances worth considering when they suspend you.
Speaking of mitigating circumstances, as I mentioned, the Code allows for an arbitration panel to consider those when handing out a penalty. Conversely, the panel can also consider aggravating factors and hand down an even harsher penalty, like USADA requested in a high profile case this past summer.
Now why do I mention that? Well, because it brings us to the first-ever edition of the The RKP TV Guide!
Yes, ladies and germs’, the story that will not die is still out there. So, for the television event of the … uhhh … moment, check out the anticipated confessional on a special broadcast of Oprah, this coming Thursday at 9:00 p.m. Eastern time in the U.S.
Are you going to watch? I would like to say I won’t … but, like a train wreck happening right in front of you, it may be hard to turn your head.
As for the content of this television spectacular, your guess is as good as mine.
As one friend and colleague recently posted on her Facebook page, “Please make it stop.”