Ahead of the Rio 2016 Summer Olympics the MHRA completed a review of the sport supplement industry concerning the classification of sports supplements.
33 UK based companies were invited to undertake an analysis of their product range which led to some products being classified as a ‘medicinal product’ instead of a sport supplement, because they caused significant physiological results.
The results were compared to a review undertaken by the MHRA in 2012 in the lead up to the London 2012 Olympics. The review intimates a drop in sports supplements being sold as ‘unauthorised medicines by almost 50% compared to a similar study carried out in 2012’.
According to the MHRA ‘The review found that 69 unauthorised medicines were being sold as sports supplements and 16 companies were found to be selling one or more unauthorised medicines….prior to the 2012 Olympic games, the MHRA reviewed 36 sports supplement websites, with 24 found to be selling one or more illegal products.
This resulted in 129 illegally branded products being pulled from sale in the UK.’ This serves as a welcome sign that the industry is taking into account the issues regarding the sale of unauthorised medicinal products under the guise of ‘sports supplements.’
The MHRA are primarily concerned with the regulation of Medicines and medical devices. Before a medical product can be made available on the market it must meet the applicable standards of safety quality and efficacy.
There is however a wider issue concerning the way in which sports supplements are manufactured, promoted, labelled and marketed to elite athletes.
In the past, media reports have published stories concerning the relationship between high profile athletes and sports supplements. In the lead up to any competitive sporting event, there is always a spotlight on clean sport encouraging teams and athletes to be extra vigilant with their diet to ensure that they do not fall foul of anti-doping rules.
The World Anti-Doping Agency (WADA) applies the principle of ‘strict liability’ on any athlete found to produce ‘adverse analytical results’ and will hold any athlete falling foul of the rules liable for prohibited substances found in their bodily specimen – whether or not they knew that it was in their body.
For an athlete therefore, it is critical that they are able to rely on proper labelling and classification of products to avoid suspensions, fines, sponsorship losses and damage to reputation.
The WADA ‘prohibited substances’ list is updated regularly. Athletes along with their support teams are required to ensure that they keep up to date with additions to the prohibited list to avoid being in a position such as that of Maria Sharipova, who received a 2 year ban for failing a drugs test.
It was reported that her team had not noticed that meldonium had been added to the prohibited list, a drug that they claim Sharapova was taking for some years for health reasons.
Equally manufactures need to remain vigilant to the updated lists to ensure that contamination (intentional or not) does not pose risks to the ultimate consumer.
The athlete is strictly liable for adverse results however under product liability law, companies can be made strictly liable for harm (reputational and financial) caused by products that are defective by virtue of being unsafe, containing false claims, or not being of satisfactory quality or fit for purpose.
An athlete will have recourse against the manufacturer for losses that are caused by the consumption of a supplement contaminated by a prohibited substance, especially when the product specifically states that it is free from banned substances as part of its labelling.