Kentucky Journal of Equine, Agriculture, & Natural Resources Law Volume 4 | Issue 1 Article 7 2011 Down the Stretch: Reining in State Approaches Toward a Universal Medication Rule for Racehorses Laurel Benson University of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/kjeanrl Part of the Gaming Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Benson, Laurel (2011) "Down the Stretch: Reining in State Approaches Toward a Universal Medication Rule for Racehorses," Kentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 4 : Iss. 1 , Article 7. Available at: https://uknowledge.uky.edu/kjeanrl/vol4/iss1/7 This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Journal of Equine, Agriculture, & Natural Resources Law by an authorized editor of UKnowledge. For more information, please contact [email protected]. DOWN THE STRETCH: REINING IN STATE APPROACHES TOWARD A UNIVERSAL MEDICATION RULE FOR RACEHORSES LAUREL BENSON I. INTRODUCTION In 2009, the American Association of Equine Practitioners (AAEP) released a document put together by the AAEP Racing Task Force. Within this document, the AAEP called for the adoption of universal medication rules because "U.S. racing jurisdictions impose medication regulations that vary from one jurisdiction to the next." "This disparity in medication rules presents significant challenges to owners and trainers who race horses in more than one jurisdiction, and often leads to confusion about how to best implement appropriate therapeutic regimens." 2 The fact that there is no universal governing body in America leads to horse owners and trainers sometimes racing at the track with the most lax guidelines, a result that is potentially damaging to both the horse and the reputation of the industry as a whole. This has been the subject of recent Congressional hearings, and many equine groups are concerned over the lack of universal rules or a universal governing body to provide guidance. This note will evaluate the existing state guidelines in states containing major racetracks in order to evaluate the potential roadblocks that could present themselves in the move to universal rules. It is important to know how states are currently handling the issue in order to see how to best proceed. While all horse racing states have attempted to confront this issue on their own, the most effective way to truly combat the problem of equine medication regulation is through a universal authority or by having each of the major horse racing states work together to adopt a uniform set of rules. This note will proceed by examining what constitutes horse doping generally, identifying the distinction between therapeutic medications that * Executive Editor, KENTUCKY JOURNAL OF EQUINE, AGRICULTURE, AND NATURAL RESOURCES LAW, 2011-2012, Staff Member, 2010 - 2011. B.A. 2009, University of Kentucky, J.D. expected 2012, University of Kentucky, College of Law. 1 AM. Ass'N OF EQUINE PRACTITIONERS RACING TASK FORCE, PUTTING THE HORSE FIRST: VETERINARY RECOMMENDATIONS FOR THE SAFETY AND WELFARE OF THE THOROUGHBRED RACEHORSE 6 (2009), www.aaep.org/images/files/Racing%20Industry%/2OWhite%2Paper/20Final.pdf. 2 id 156 KY J. EQUINE, AGRI., & NAT. RESOURCES L. [Vol. 4 No. I are allowed generally and those which are allowed on race days or allowed in the days leading up to a race. From there, it will move to a state-by-state review, focusing on who has been granted the authority in that state to regulate race day medication, what the state law currently is regarding race day medication, whether the state has considered moving to a more uniform system, as well as some of the impacts of the current state rule. It will then analyze how the existing state laws and external horse racing organizations can help or hinder the move into universal medication rules. Finally, the analysis concludes that the clearest path to implementation of universal rules will require the establishment of an overarching authority. II. BACKGROUND Horse racing is a unique sport in two very important ways. First, there is no overarching governing body, as most other sports have, to set rules and maintain standards that all in the sport must follow. Second, unlike other sports, steroids are not strictly prohibited in horse racing and are sometimes approved as a therapeutic medication. To differentiate when steroids may be used, racing regulators have divided drugs into two distinct categories: performance enhancing and therapeutic. "[T]he largest group of concern to regulators [are] the 'performance-enhancing substances,' whose identification in a horse is viewed with great regulatory concern. Testing for these substances usually proceeds at the highest level of sensitivity possible; so-called 'zero-tolerance' testing."' These substances have been labeled into "about 900 or so substances [as] classified by the Association of Racing Commissioners International (ARCI) Uniform Classification System for Foreign Substances.'A The second group of roughly fifty medications is classified as "'therapeutic medications,' [as] recognized by the American Association of Equine Practitioners [AAEP] and the Racing Medication and Testing Consortium [RMTC]."5 Problems arise with regard to therapeutic medications because some drugs that are allowed in the barn are not allowed on the track.6 There are many ways in which medication can change a horse's ability to perform. Acute stimulant medication, which has been widely used for hundreds of years, "is the administration of a stimulant substance Thomas Tobin, et al. Equine Drugs, Medications, and Performance Altering Substances: Their Performance Effects, Detection, and Regulation, THOMASTOBIN.COM, http://thomastobin.com/drugsmeds/drugsmeds.htm (last updated Dec. 2010) ("Based on a presentation to the Equine Law section of the Kentucky Bar Association at Keeneland, Lexington, Kentucky, Oct. 21, 2005"). 4 l r 5 id. 6 Marlene Smith-Baranzini, We Need a National Organization,N.Y. TIMES BLOG, (Nov. 7, 2009, 3:00PM), http://roomfordebate.blogs.nytimes.com/2009/11/07/getting-a-grip-on-drugs-and- horses/. 2011-2012] DOWN THE STRETCH 157 to a horse shortly before post. Among the especially useful agents in this area are the opiates, which have long been used in racing horses, and also the amphetamine-like stimulants, and most especially methylphenidate (Ritalin)." 7 "Horses can also be medicated to win by relaxing them and allowing the horse to run its best possible race. The widely used tranquilizer acepromazine, and any number of related or equivalent agents, have reportedly been used in this way."8 Another way to impact a horse's performance is by "improving a horse's 'wind' by opening its airways through the use of bronchodilators... especially [for] a horse that is sub- clinically broncho-constricted." 9 Just because a medication changes a horse's ability to perform does not make it illegal. There is an important distinction even beyond whether a drug is classified as legal or illegal -both place and time of administration are considered. Some commentators point to the "seeming hypocrisy that medications that are legal in the barn and during training are banned on race day." 0 Further, public misperception has an important role here that cannot be understated. According to Steven Crist, the publisher and a columnist for Daily Racing Form: Much of the current debate over drugs and horse racing stems from a failure by the general news media to distinguish between two very different things: 1) disturbing but infrequent attempts to cheat with illegal, dangerous substances and, more commonly, 2) the routine and legal administration of therapeutic medications, which are open to debate but by no stretch of the imagination amount to animal abuse." The rare attempts to cheat with illegal substances seem to get the most media coverage, even though they are not the biggest issue facing the sport. Moreover, even for the actions that are aboveboard, "it is this perception of lawlessness - at a time when casual and hard-core fans are questioning whether horse racing is both on the square and has the best interests of its horses at heart" that is damaging the sport.12 Interestingly, the rest of the world does not follow the U.S. approach: 7 Tobin, supra note 3. a Id. 9 Id. 1oMarlene Smith-Baranzini, supra note 6. " Steven Crist. A Failureto Properly Regulate, N.Y. TIMES BLOG, (Nov. 7, 2009, 3:00PM), http://roomfordebate.blogs.nytimes.com/2009/11/07/getting-a-grip-on-drugs-and-horses/. 12 Joe Drape, Barred for Drugs, N.Y. TIMES, Nov. 5, 2009, at B15, available at http://www.nytimes.com/2009/11/05/sports/05horses.htmi. 158 KY J. EQUINE, AGRI., & NAT. RESOURCES L. [Vol. 4 No. 1 Horse racing in most other jurisdictions throughout the world operates under the medication rules of the International Federation of Horseracing Associations (IFHA). The principal difference in the medication regulations of the United States and the IFHA is the permitted use of anti-bleeder mediation furosemide (Salix@ and adjunctive anti-bleeder medications in some racing jurisdictions) and permitted levels of non-steroidal anti-inflammatory drugs (NSAIDS). With anabolic steroid regulation now in place in the United States, most other difference are largely semantic and are primarily a function of the state regulatory structure of U.S. racing. 13 The IFHA proves it is possible for a group to regulate this issue of medication rules in horse racing. The matter now turns to how this can be accomplished here in the United States. For that, it is imperative to look at what states are currently doing, and what laws are in place that could be prohibitive toward moving to a uniform authority. III. STATE-BY-STATE REVIEW While horse racing exists in many states across the country, the major thoroughbred racetracks are mainly located within the states of New York, Maryland, Florida, California, Illinois and Kentucky.