The world of sports has undergone an incredible shift in the past 50 or so years, with the advent of professionalism in multiple sports and the invention of totally new sports such as drone racing and e-sports; much can be said for how much sport has developed and how much the industry has grown.

With complex technology being fused into how games and matches are refereed, how athletes are tracked, monitored and reviewed and the enhancement of athletes overall strength, size, ability and fitness; it is obvious that the way we play sport has changed and the way we train for sports has changed, yet much less time is given to talking about the nutritional supplements and products that athletes use in modern day sports to help them perform at their peak.

Why is this? With the promotion of a global drug free sport industry by entities such as the World Anti-Doping Agency (WADA) and specifically in South Africa by the South African Institute for Drug Free Sport (SAIDS) why do sports supplements continue to skate under the radar, independent and unregulated?

The implementation of anti-doping policies in nearly all sports severely restricts an athlete’s ability to utilise performance enhancing drugs and supplements to gain an unfair advantage over their competitors. Why then are these entities silent on the use of health supplements and their ingredients.

In a 2009 article[1] out of the University of León in Spain, it was found that up to 88% of all athletes use some type of sport supplement during their career. This is astonishing to think as the majority, if not all of these products, are totally unregulated.

With the use of advanced marketing campaigns, supplement companies have persuaded consumers that the use of their product will result in increased performance on and off the field. However the fact still remains, as promoted by most nutritionists, that nothing can replace a healthy and balanced nutritional diet. Yet every year, millions of supplements are sold world-wide to athletes on the promise that they will run faster, or jump higher or kick the ball harder if they use their products. The truth of the fact is that the majority of these companies are basing their product information on non-existence studies and little to no scientific evidence (peer-reviewed studies).

There is no universal regulation of sports foods and health supplements, and most countries differ in their approach and practice to such supplements. In South Africa there is no distinction made between food, supplements and medicines. Reference is made to health supplements in multiple pieces of national legislation including the National Health Act, the Medicines and Related Substance Act, the South African Institute for Drug-Free Sport Act as well as the Consumer Protection Act, however the problem remains that not enough specificity is given to the accountability and responsibility that is required of the manufactures of these substances.

Currently, the South African Institute for Drug-Free Sport provides for the testing of athletes for the use of banned substances; however it currently does not concern itself with the effective monitoring of health supplements in South Africa for any contaminants. This lack of effort by the leading national institute against drugs in sport has large scale implications for athletes in South Africa.

The South African supplement industry is worth over R1.5 billion a year and is growing every year. Due to the unregulated nature of the industry, companies have the ability when marketing and labelling their products to make unsubstantiated claims as to the benefits you will receive if you use such products, thus leaving users, and athletes in particular, in the dark when it comes to the accuracy of the ingredients contained in these supplements.

On the contrary, professional athletes are subject to strict SAIDS and WADA regulations when it comes to testing for the presence of performance enhancing substances during the off season and during competition. Such strict regulation by these entities means that athletes must at all times maintain a strict adherence to such rules and must at all times be aware of what they are putting into their body. If not they will be found guilty of doping and subject to extremely strict sanctions including being banned from their respective sport for anything from 2 years to indefinitely.

The management of these supplement companies and their products have created a ‘grey’ area that athletes must now contend with when using supplements. Companies are under no obligation to properly label their products and are not required to inform users of the dangers of the ingredients contained in the products or even what such ingredients are in the product. Such a grey area therefore has given rise to an abnormal increase in the number of positive test results found in athletes.

One such example in particular is the recent case of Demarte Pena, an EFC MMA fighter who was found guilty by a SAIDS independent inquiry earlier this year, for the presence of a banned substance in his blood during his recent Bantam-Weight Championship fight with Irshaad Sayed. Although Pena was found guilty by the independent commission, Pena raised the defence that he had been using a popular sports supplements daily and to the best of his knowledge and after conducting various tests and research he was unaware that the product contained any banned substances. Pena said this at the hearing:

“I took advice from professionals and persons with experience regarding sports supplementation and satisfied myself (through internet searches and checking the product labels and package inserts) that the supplements did not contain any prohibited substances. I took these supplements and disclosed this fact to SAIDS… “

Chairing the inquiry was respected sports lawyer and UP professor Steve Cornelius, and it was his interpretation that Pena:

“...had not acted with intent, significant fault or negligence, due to the fact that the banned substances in question were traced to contaminated supplements. It was further acknowledged that Pena had declared he was taking said substances, and that he had checked that the ingredients listed did not contain any prohibited substances before consumption.”

Due to Pena’s submissions and the finding of the commission, Pena’s suspension was brought to an end (after serving a 3 month period) and his fight with Sayed was declared a ‘non-contest’ and both fighters retained their respective belts.

This example resulted in the correct outcome being reached and for Pena to be fairly treated in this scenario but the possibility exists that many athletes may suffer worse consequences. This practical example serves as the perfect catalyst for a change in the industry.

So what protection is offered to athletes in SA who fall foul to misleading and incorrect labelling and ingredient listing on supplements? The Advertising Standards Authority (ASA) and the CPA seem to offer consumers protection after the fact and provide a consumer with recourse against any harm suffered but unfortunately these legislative protections are intransigent and therefore consumers are not protected from actually using such products, only for the harm that may be caused after.

However things have significantly changed and there has been major movement in the legislature when it comes to acknowledging nutritional supplements and their regulation. In 2011 the Minister of Health, Dr. Aaron Motsoaledi, published draft amendments to the Regulations in terms of the Medicines and Related Substances Act, with the aim of bringing ‘complementary medicines’, including sport supplements, into the scope of the Act.

In terms of these regulations it was intended that manufacturers of supplements would be required to submit their products to the Medical Control Council (MCC) for registration. These proposed regulations stated that the manufacturer would be obligated to register a product and the ingredients contained in it and they would also be scrutinised for compliance with the regulation after the fact.

These measures it appears could significantly decrease the risk of product contamination and cross-contamination, such as that experienced by Demarte Pena.

In January 2017, the Minister of Health published these new amendments to the Medicines and Related Substances Act and the above stated inclusions, which effectively include health supplements as a new type of medicine in the Act, were published for public comment. This new amendment would effectively bring health supplements under the regulation of the Act and subject to its penalties clause should manufacturers fail to follow legislated procedure.

Companies will be required now to submit their respective product and the ingredients lists to the MCC for registration of the product. This registration process will ensure that manufacturers are bound to the list of ingredients that they had presented to the MCC when distributing their products; if they are found to be distributing unregistered products they may be found guilty and subject to a fine or imprisonment.

Although it must be stated that athletes in modern sports do have a duty of care that they must uphold and a certain responsibility to ensure that the supplements they are consuming do not contain "non-WADA" approved ingredients, the nature of supplement companies and their inability to correctly indicate all ingredients makes it extremely difficult for athletes to properly exercise this duty of care.

The solution in South Africa it appears most certainly rests with the Minister of Health and this latest draft amendment; furthermore, more work must still be done to ensure that any regulations brought into effect in terms of these new drafts not only comply with national standards but are brought in-line with the WADA anti-doping list to ensure professional athletes can rest well at night in the knowledge that their career and livelihood are protected.

The information, views and opinions expressed in this article are those of the authors and the information provided in the article does not constitute legal advice and is not intended by the author to do so.

1.           Darvishi L, Askari G, Hariri M, et al. The Use of Nutritional Supplements Among Male     Collegiate Athletes. International Journal of Preventive Medicine. 2013; 4 (Suppl  1): S68-S72.

2.           O. Molinero and S. Márquez Department of Physical Education and Institute of Biomedicine.    University of León. Spain. “Use of nutritional supplements in sports: risks, knowledge, and behavioural-related factors” Nutr Hosp. 2009;24(2):128-134

3.           Gary Gabriels, Mike Lambert, Pete Smith, Donavon Hiss “Will the new Consumer Protection      Act prevent harm to nutritional supplement users?”SAMJ Vol .101 No. 8 2011

[1] O. Molinero and S. Márquez Department of Physical Education and Institute of Biomedicine. University of León. Spain. “Use of nutritional supplements in sports: risks, knowledge, and behavioural-related factors” Nutr Hosp. 2009;24(2):128-134