The Explainer: Is it doping if there is no performance enhancement?

No TUE available and leave it at home.

No TUE available and leave it at home.

Dear Explainer,
I am a 48-year-old masters’ racer. I have a degenerative lower back problem that causes me a lot of pain. I have tried everything to control or reduce that pain, from yoga (which has helped) to prescription pain killers, including Vicodin (which has some ugly side-effects and is addictive). My son finally convinced me to try medical marijuana. It worked and, because I live in Colorado, it’s even legal.

I’ve been using it for 14 months now and I have not really noticed any major effect on my riding, since I don’t use that much, use it orally, rather than smoking it and continue to exercise.

My big question is whether I can get popped for a “doping” positive, if I get tested at a bike race. I’ve heard that marijuana is not banned when it comes to cycling, but I’ve Googled up contradictory information.

I have a Colorado prescription. Should I try to get a TUE (Therapeutic Use Exemption)?

On a side note, I am planning on coming back to your part of the world and racing in the Dead Dog Classic this summer. Should I assume that my Colorado ‘script won’t do me any good in Wyoming?
– Roger

Dear Roger,
Let’s start with your TUE question. The short answer is a simple “NO.”

Colorado’s medical marijuana provisions do allow for prescriptions, but those “prescriptions” have a rather unique legal status (more on that later) and are not recognized by the World Anti-Doping Agency, the U.S. Anti-Doping Agency, the UCI or USA Cycling. There is no provision to have a request for a TUE approved. (That said, if you want to give it a shot some time, give me a call. It would be an interesting test.)

Competitive advantage?

Marijuana’s status when it comes to sports doping has been interesting to follow. Clearly, when it comes to cycling, it’s going to be hard to argue that marijuana’s active ingredient, tetrahydrocannabinol (THC) is, in any way, performance-enhancing.

Since the early days of the World Anti-Doping Agency, cannabinoids – like marijuana and hashish – were included in the list of substances banned under the agency’s “in-competition” provisions. That meant that as long as you weren’t under the influence of marijuana while competing, you were okay.

WADA pretty much left enforcement up to the individual governing bodies. In cycling, where no one gets much of a competitive advantage from marijuana, testing for the substance is pretty minimal. In snow-boarding, where being completely ripped might actually be an advantage, the governing body has taken a stronger position.

In cycling, there are only a few examples of riders being popped for detectable THC levels. In 2007, there were two riders who tested positive for cannabis, the Ukraine’s Svitlana Semchouk and Poland’s Rafal Kumorowski both tripped the Dopo-Meter™ for pot. Frankly, I’ve had trouble finding any others. In both of those cases, by the way, the riders’ results of the races in which they tested positive were negated and each received a warning. There was no suspension in either case. And no, I have no idea how well they performed in those races, although I have to imagine it wasn’t that great and that these two were each random test subjects.

It’s important to keep in mind that the marijuana you consume today may show up on test for quite some time. THC is retained in body fat. Unlike alcohol, which is quickly metabolized, marijuana may show up in a urine sample for up to two weeks after it is consumed – either by eating it or smoking it.

Off hand, I would say that your occasional use of medical marijuana will probably not cause you major problems in cycling. If you did test positive, your most reasonable defense would be that your levels were such that it doesn’t constitute “in-competition” use. I wouldn’t guarantee that your defense would be successful, but it’s worth making the argument.

If it helps you control the pain, I’d say it’s worth the risk. Out-of-competition use is not barred under existing rules and history seems to show that marijuana is not considered to be much of a factor in cycling. Of course, those could be famous last words. I would exercise some caution and discretion when making the decision to use medical marijuana.

Now, to your last question. I am quite pleased to hear that you are thinking about coming to Laramie to race the Dead Dog, which our local shop owner, my racing buddies and I started … let’s see here … twenty-nine years ago?!?!?!?

Well, my answer is much clearer on this one. Don’t do it.

Just say no … to crossing the border

That Colorado “prescription” is useful only in Colorado and the only reason that it is useful in Colorado is that the Federal government has pretty much stayed on the sidelines. In response to last fall’s decisions by Washington and Colorado voters to legalize the recreational use of marijuana, President Obama quipped that the Federal government has “more important issues” to deal with than to go after states in which voters approved the recreational use of marijuana. I’m sure the President also realized that while he carried Colorado in the last election, that state’s marijuana initiative, Amendment 64, had a bigger margin of victory than he did.

That’s a tentative status, though. A change of attitude or a change of administrations could put both medical and recreational marijuana laws at the state level at risk.

No matter what, though, you will not be welcomed with open arms (unless those arms are holding handcuffs) when you cross into Wyoming or other states without such laws. I’ll address Wyoming’s approach, since you’re planning on coming here and I have a bit more experience with the issue in this state (as a lawyer, folks).

Back in the day, Wyoming Statute 35-7-1031 (c) was at least a little unclear as to how the state would handle prescribed marijuana.

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act.

But to underscore Wyoming’s position on its neighbor’s adoption of medical marijuana rules, the Wyoming State Legislature revised Wyoming Statute 35-7-1031 (c) to include “no prescription or practitioner’s order for marihuana, tetrahydrocannabinol, or synthetic equivalents of marihuana or tetrahydrocannabinol shall be valid.”

If you are caught with less than three ounces in Wyoming – and it’s a first offense – it’s a misdemeanor and you can face up to a year in jail and be fined up to $1000.

If you have more than three ounces, it’s a felony and the penalties go up to five years in prison and $10,000.

Keep in mind that if you were to bring, for example, brownies, to Wyoming the statute may cause you problems, because it notes that in determining weight, officials are to include “the weight of the controlled substance and the weight of any carrier element, cutting agent, diluting agent or any other substance excluding packaging material.”

Theoretically, a pound of brownies, even they include less than half-an-ounce of pot, could be classified as a felony, since flour, chocolate and sugar would fall into the category of “any carrier element, cutting agent, diluting agent or any other substance….”

So don’t do it. Colorado’s rather casual approach to medical and recreational marijuana use stops at the border. The laws in this state are, in comparison, draconian. Law enforcement is pretty amped, too, given that the Wyoming State Patrol, county sheriffs and local cops are all keeping an eye peeled for cars traveling up from Colorado.

If you are pulled over, don’t ever, ever, ever consent to a search of your vehicle. Politely decline and simply offer the following: “I understand you are just doing your job, Officer, but I never consent to searches.”

Don’t interfere with the officer if he or she does conduct a search. That will cause you even more problems.

Enjoy your trip to Wyoming, Roger. Just do yourself a favor and leave your herbal pain remedies at home when you do.
– Charles

Small HeadshotThe Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

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9 comments

  1. Anon.

    Interesting piece. It’s been years since I’ve had to worry about this one way or the other, but I must say that a brownie or two used to be a very effective aid in spending long days on the bike. Sort of a hypnotic, I guess.

  2. Lou

    I have no problem with the subject’s use of medical marijuana as performance enhancing and I wish him well with his pain management and health. I just don’t want to line up with him after he’s recently dosed, just like I wouldn’t want to line up against someone who’d just taken a Percocet, no matter how legitimate the medical indication. Road racing, even at the master’s levels, takes quick reflexes. While he has a legitimate problem and use, it’s not right to put others at risk. I’m guessing that this isn’t what he was thinking and he was just worried about positives from the long half-life, but just in case, I thought I’d throw this out there.

  3. Adam

    Just want to add that Marijuana can show up in urine drug testing for a lot longer than 2 weeks, anything up to 6 weeks or more is quite common (I do drug testing as part of my job), Something worth noting I think.
    Also agree with Lou, that there is the other risk of possibly ” being under the influence” when competing, or at least the perception from other competitors that you may be while racing could have a negative impact, even if it is not actually true.

  4. Flogger

    I feel qualified to speak on this issue, being somewhat of a pothead, a bicycle rider, and a criminal defense lawyer. I offer the following observations:

    “under the influence” for driving offenses means having a sufficient quantity of the active ingredient, Delta 9 THC, in your system. Delta 9 metabolizes rather quickly, within several hours, and what is left are several by-products produced when your system metabolizes Delta 9 THC. 11 Nor Delta 9 THC is the metabolite most frequently tested for in lab analyses of blood or urine, and it will show up for about a month after ingestion, give or take. So unless you are hitting that bong within a few hours before riding (and assuming the analogy holds), you shouldn’t test positive – there should not be any detectable Delta 9 in your blood or urine. If all that shows up on a lab analysis are metabolites, that should not equate to ‘positive;’ arguably in that case there is no effect on performance at all. In my practice I expect and usually get dismissals in DUI-Drugs/marijuana cases where all that comes back from the lab is a positive for 11 Nor.

    If I smoke just before I ride, in addition to the increased ‘focus’ noted by Anon. above, my heart rate tends to run 10 – 15 bpm higher than usual for the first hour, then slowly drops to normal. Physiologically, I don’t really notice any positive or negative effects on performance. Sensually, hedonistically, whatever you will, I enjoy the heck out of riding stoned, but I enjoy riding unstoned too. I enjoy riding. Pounding the back roads of New Hampshire on a sunny autumn day is a great experience, stoned or not.

    Given the growing body of research showing that alcohol-impaired drivers poses a significantly greater danger to themselves and others than marijuana-impaired drivers, the legal equivalence imposed by law seems hard to justify. The trend at the level of state law is to decriminalize or legalize. But possession of small amounts for personal use is a federal crime, even in Colorado. Possession of more than 50,000 marijuana plants is a capital offense under federal law! Perhaps we are approaching the time when federal law will no longer penalize marijuana production and possession and leave it to the states, kind of like what happened when Prohibition was repealed. The point is, the risk posed by a moderately stoned rider in terms of the effect on cognitive function, perception, and reaction, might be pretty minimal or even nonexistent. More research needs to be done.

  5. Boy_Howdy

    “The only way that pot will ever be classified as a performance enhancing drug is when they place a giant Snickers bar at the finish line.” – Eddie Izzard

  6. Drago

    Im gussing we are talking about road racing. Mike DelBosco, Pretty sure thats his first name, “won” MtB downhill worlds some years back and lost the title for a weed positive .

  7. Drago

    Correction(s):
    I should have looked this up before spewing it on my iPhone …. It was Chris DelBosco and I think it was US Nationals.

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