The first paragraph in the New York Times story said it all: “The Drug Enforcement Administration has classified as controlled substances three steroids that are marketed as dietary supplements, but an antidoping official warned that new steroids have taken their place on the shelves of nutrition stores.”

The DEA’s actions are the equivalent of the carnival game, “Gopher Bash,” in which you take a soft, oversized mallet and bop gophers on the head when they emerge through holes in a playing surface. Even though you might strike all the gophers on the head, they keep popping up.

The DEA, FDA, nutritional supplement make, retailers and some athletes are all prisoners of this game. The DEA is trying to keep up with companies that synthesize new forms of steroids. In this instance, the agency declared off the shelves the following — Madol, boldione and 19-nor-4,9(10)-Androstadienedione. Because they are now considered anabolic steroids, retailers run the risk of arrest if they sell supplements containing those substances. Manufacturers and marketers have to find another way to market the substances, which may be available by prescription.

And as more substances make their way onto the DEA list, makers, distributors and stores will have to keep a close eye on what they should — and should not — be producing and stocking. And athletes have to watch what they keep on their shelves; they do not want to accidentally take a substance that was banned after they bought it.

Rather than notify the DEA of a problem substance, Travis Tygart, the head of the United States Anti-Doping Agency, said in a statement that, “We need a regulatory system capable of managing the magnitude of this problem, and that can stop those rogue supplement manufacturers who are meanwhile profiting.”

Who might that regulator be? The logical choice would be the federal  agency that oversees drugs and nutritional supplements. Whether the FDA wants the full responsibility is yet to be seen.

About 

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.

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