Congressional Subcommittee Weighs Equine Testing Bill

Supporters of federal legislation that aims to improve horse racing's integrity and uniformity on medication rules reached a milestone June 22 when a Congressional subcommittee considered the legislation in Washington, although both major horsemen's groups voiced their opposition during the hearing.

For the first time since it was introduced in May 2017, the Horseracing Integrity Act of 2017 (H.R. 2651) received a Congressional hearing. The legislation would have the United States Anti-Doping Agency oversee a new independent board of USADA members and non-conflicted industry experts supervise medication issues and drug testing in the sport, tasks that currently are conducted by state regulators. The bill also would eliminate race-day medication, which in the United States is limited to furosemide (commonly called Lasix).

After a two-hour and 15-minute hearing, the subcommittee on Digital Commerce and Consumer Protection, within the House Committee on Energy and Commerce, adjourned without a vote on the issue. After listening to sometimes heated debate both for and against the legislation, subcommittee chairman Rep. Robert Latta (Republican, Ohio) accepted a number of additional documents into the record and told participants they'd have up to 10 days to submit additional information.

Rep. Andy Barr (Republican, Ky.), who with his Congressional Horse Council co-chair Rep. Paul Tonko (Democrat, N.Y.) introduced the bill, said the current regulatory framework for drug testing is hampering the sport.

"Our signature racing industry labors under a patchwork of conflicting and inconsistent, state-based rules governing prohibited substances, lab accreditation, testing, and penalties for violations," Barr said. "This lack of uniformity has impeded interstate commerce, compromised the international competitiveness of the industry, and undermined public confidence in the integrity of the sport. 

"This legislation would remedy these problems by authorizing the creation of a non-governmental anti-doping authority, The Horseracing Anti-Doping and Medication Control Authority (HADA), governed by representatives of all major constituencies of the industry and responsible for implementing a national, uniform medication program for the entire horse racing industry. These reforms would eliminate the perception of unfair competition and enhance the reputation of U.S. racing on both national and international levels."

Since being introduced by Barr and Tonko on May 25, 2017, the bill's bipartisan co-sponsors have increased to 125.  

Backers of the legislation believe there is too much inconsistency in medication and drug policies and testing under current state-to-state regulations. They note that as wagering across state lines has become the norm and shipping of horses across state lines has become routine, the sport has become more national in scope and needs updated regulation. That argument hit home with Rep. Markwayne Mullin (Republican, Okla.).

"I don't want to overregulate, but Congress has a role here," Mullin said, noting involvement in other professional sports in the country. "Congress does have a role when commerce crosses state lines, even when it comes to a sport."

The legislation calls for the end of medication administration within 24 hours of a race. That policy would force changes to the widespread U.S. standard of administering Lasix to prevent or reduce the severity of exercise-induced pulmonary hemorrhage.

Thoroughbred Horsemen's Association chairman and CEO Alan Foreman, who has championed the National Uniform Medication Program, which has improved uniformity in medication policies from state to state, told the legislators the main motivation is to end use of race-day Lasix.

"The true purpose of H.R. 2651 is not medication uniformity, which the industry does quite well notwithstanding that it is a state-sanctioned and state-regulated business," Foreman said in submitted testimony. "Rather, it is an effort by the proponents to do an end-run around the state-regulated racing industry in the United States and state regulators, who have unanimously determined that the administration of furosemide to horses on race day is in the best interests of the health and welfare of the horse, to impose by federal intervention the desire of a minority of special interests on an industry that collectively is, and has been, overwhelmingly opposed to their views, to end the practice."

Seemingly lending support to Foreman's assertion was the significant amount of time spent discussing Lasix use during the hearing. While NUMP has improved uniformity, supporters of the federal legislation said those strides haven't been enough and that the state-to-state process itself can harm uniformity, as one state may act quickly while another may lag behind.

Less than 24 hours before the Congressional hearing, the California Horse Racing Board meeting saw a heated debate between its Equine Medical Director, Rick Arthur, himself a Jockey Club member, and horsemen's representatives over updates to its out-of competition rules that are in line with industry standards. The CHRB didn't approve the new standards at Thursday's meeting.

Stuart Janney III, chairman of The Jockey Club and a top-level owner and breeder, noted the delays in putting that OOC policy in place in California. He said putting new industry standards in place on a state-by-state basis frequently takes a long time and results in different rules in different states on important medication policies.

As one example, he pointed to inconsistencies in how states conduct out-of-competition testing, considered essential in combating performance-enhancing substances in training.

"In December 2016, the latest component of the NUMP, the out-of-competition testing protocol, was approved by the ARCI. Eighteen months later, the industry is still awaiting uniformity among racing jurisdictions with this essential component of competition integrity," Janney noted.

Janney said putting HADA in place would bring uniformity for participants, add integrity for participants and bettors, improve safety for horses and riders, and help grow the sport—along with the agricultural industry.

At the hearing in California, Arthur noted that improved OOC testing would help halt the use of substances that benefit a horse in training. He added that post-race testing is at a disadvantage because any potential cheaters know when the test will be conducted—after a race. Janney noted that funding from The Jockey Club offered to improve OOC testing for graded stakes has only been used by a handful of tracks.

At the Congressional hearing, Janney said the sport needs to move toward more OOC testing, as opposed to its current standard of relying heavily on post-race testing. He noted that Lance Armstrong, who was charged with cheating in 2012 by USADA and was banned for life by the International Cycling Union, never failed a race-day drug test.

"Even more confounding is that racing commissions refuse to divulge the number of out-of-competition tests that have been performed," Janney said in submitted testimony. "As we have learned from other sports worldwide, transparent out-of-competition testing is vital to any successful anti-doping program."

Janney said state-to-state regulation of the sport has failed to reach uniformity and that the approach is out of step with today's sport.

"It seems like our industry is continually hampered by a system of rules and regulations from another era. In fact, many of the laws we have on the books were written when state racing commissions were created more than five decades ago," Janney said. "The world, and our sport, has changed drastically. With the growing sophistication of performance-enhancing drugs, we always seems to be a step behind the cheaters. We've read and heard ugly tales about the use of demorphin, cobra venom, steroids, blood doping, and 'milkshaking.'"

Janney said no other sport has different medication rules on a state-by-state basis—rules don't change as a baseball or football team travels to a different state.

"We strongly believe that our sport needs an independent organization, free of conflicts of interest, to apply uniform rules, stringent out-of-competition testing, tough penalties, and effective enforcement, which will ensure clean competition and improvements in racing safety," Janney said. "This is consistent with our core belief that horses should compete only when they are free from the influence of medication."

Breeders' Cup president Craig Fravel also spoke in favor of the legislation, noting that California took four years to adopt the industry standard of third-party administration of Lasix. He said the federal legislation would allow for rules to be implemented more consistently at a time when horse racing is under ever-evolving drug threats. He said that is one reason a national approach is needed and the state-to-state regulatory process is outdated.

"We all need to be aware of the potential abuse of designer drugs, synthetic steroids, and similar agents, and the possibilities ahead for manipulation of the equine genome to create or alter physical traits of our competitors," Fravel said. "These modern challenges require concentrated, efficient, and sophisticated national programs for investigating regulatory matters, researching threats, testing, and prosecution. An international sport deserves the most advanced form of regulatory mechanism and one based on 38 different state agencies with varying levels of funding, expertise and experience.

"As I have said many times, if we were starting from scratch knowing what we know now, would we have created a national organization such as the one contemplated by the Horseracing Integrity Act or would we have 38 different rule-making and enforcement bodies? I think it is obvious that we would choose the former and not the latter."

Tonko addressed similar concerns in his opening remarks.

"This same story has played out countless times across the country because the current voluntary national uniform medication reforms have been implemented unevenly—leaving patchwork systems in place that have created a wide disparity in the effectiveness of medication testing and enforcement. This piecemeal, voluntary approach is not only detrimental to the health of our beloved horses, it denigrates the perception of the sport," Tonko said. "If horse racing is to thrive as an industry and once again capture the public's imagination, we must do better. On this point, the public strongly agrees. More than 90 percent of the public and 90% of horseplayers want to see stronger action on uniform medication reform. In a sport built on the integrity of competition, nothing is more important than a level playing field for the horses, jockeys, and trainers who compete, as well as the fans who wager on the races."

While not participating in the hearing, Stronach Group chairman and president Belinda Stronach said the current regulatory approach on medication is hindering the sport's growth.

"If we expect our sport to grow for future generations, we need to raise our standards. Efforts under HADA to establish oversight and to bring uniformity with the ultimate goal of the elimination of race-day medication will raise the integrity of our sport and, most importantly, will improve the safety of our athletes—both equine and human," Stronach said. "It will not only help racing, it will invigorate the entire industry ecosystem from breeding to training and aftercare and will enable our sport to grow and compete on a global scale."

Still, the federal legislation has not secured industry consensus. Both of the country's major horsemen's groups opposed the bill. Besides Foreman, National Horsemen's Benevolent and Protective Association CEO Eric Hamelback voiced opposition Friday. He said giving USADA such power, with its lack of experience in equine drug testing, would represent a step backward from the current approach. 

"Horse racing in the United States has the most comprehensive testing program of any sport in the world and employs the most sophisticated and sensitive equipment found anywhere," Hamelback said. "USADA as the proposed testing authority would not create a change to the methods and protocols that are currently in use. The only significant difference that USADA brings to the table is the lack of equine testing knowledge and the significant additional expenses that would be involved with USADA's involvement."

He later added, "We believe that the states and, ultimately, the NHBPA owner and trainer members will be saddled with untold costs over which they have no control. This would impose unlimited new taxes on our industry, without any checks or balances, and would threaten the economic well-being of the industry."

The regulatory groups currently overseeing the sport in these areas also were represented through ARCI president Ed Martin, who submitted a 76-page witness statement opposing the legislation. He said concerns about the lack of uniformity in regulation of the sport are overblown.

"Every state that has authorized pari-mutuel wagering on horse racing is a member of the ARCI and, as such, relies upon the ARCI model of racing as the template for their individual state rule book. These rules form the foundation for the regulatory scheme in every state, and there is substantial, albeit not total, uniformity between the states," Martin said. "The concept that there are wide variations from one state to the next as to the rules is just not true."

Martin noted that both horsemen's groups, who would have the most interest in uniformity of rules, oppose the federal legislation. That said, there are plenty of trainers who support it—including Graham Motion, who this year noted the problems caused by that lack of uniformity.

"There is a lack of understanding as to how complicated the medication rules have become from state to state, and there seems to be a desire from the powers that be to trip us up rather than guide us through these issues," Motion said.

Also, seemingly small differences in rules from state to state can have a huge impact on the sport. In the 2016 Breeders' Cup Sprint (G1), Masochistic was allowed to race because it had been more than 60 days since he'd been administered a steroid. The model rule at the time called for 60 days out of racing and that a clean test be submitted. Masochistic finished second before failing a post-race test, resulting in his disqualification. In states with the full model rule in place, he wouldn't have been allowed to race.

On the other hand, Martin said giving USADA oversight of horse racing medication issues and testing would bring up its own integrity concerns.

"The USADA is not a government agency, and its employees are not subject to ethics restrictions, financial disclosure requirements, public misconduct investigations, or the normal checks and balances provided for oversight of state racing commissions and their employees," Martin said in submitted testimony. "Some states have determined that in the making of public policy affecting horse racing, individuals with experience in or involved with the industry should be mandated to be included on the racing commission. This is the case in Pennsylvania and Arizona. In other states, like New York, no sitting commissioners can have any interest in the regulated industry. In all cases, sitting commissioners are public officials regardless of whether they have or had any interest in the industry. As such, they are subject to public ethics laws, financial disclosure, and strict conflict-of-interest requirements that would require recusal if a matter posing a potential conflict were to come before them."

Martin also repeated calls he made in December that medication testing in the industry be expanded to include breeding farms and public auctions. Janney said he wouldn't be opposed to such expansion of oversight.

Martin characterized abuse of performance-enhancing drugs in the sport as rare. He said 99.9% of 354,787 samples in 2017 were clear of substances that should not be allowed in the horse, a stat that leaves out medications considered to be therapeutic. Of the 1,566 AAFs in U.S. pari-mutuel sport, there were 169 findings of Class 1 or Class 2 substances—87.4% of all findings were for overages of legal, therapeutic medications, and 63.3% of all findings were indicative of treatment misapplications. 

In supporting the legislation, Kitty Block, acting president and CEO of the Humane Society of the United States, noted there also are problems with the abuse of therapeutic medications in the sport.

"The use of illegal substances is not the only problem. Legal therapeutic drugs are also problematic as they can allow a horse to push through pain, intensifying an injury which can lead to breakdowns, career-ending injuries, and death," Block said. "In addition to side effects and unfair advantages, overuse and abuse of legal drugs administered too close to a race can hide existing injury or lameness. Just as in humans, pain is a biological mechanism that allows horses to protect themselves from further injury. This compensatory function may be undercut by drugging, and horses and jockeys incur a significantly greater risk of injury and death."

Janney questioned why current testing practices did not pick up on the drug cheating that was routine at Penn National Race Course and resulted in federal indictments of trainers and veterinarians based there. During trial testimony, trainer Stephanie Beattie said horses were routinely administered drugs on race day.

Janney said it's naive to think the problems documented in Pennsylvania are not occurring in other states.

Supporters of the bill not appearing at the hearing include the Consignors and Commercial Breeders Association, the International Federation of Horseracing Authorities, Keeneland Association, New York Racing Association, The Jockey Club of Canada, the Thoroughbred Owners and Breeders Association, and the Water Hay Oats Alliance, which includes approximately 65 racehorse trainers. 

Still, the list of opposition also was long. Besides the two horsemen's groups, it includes the American Association of Equine Practitioners and North American Association of Racetrack Veterinarians, the American Quarter Horse Association, and the United States Trotting Association.

The American Horse Council and National Thoroughbred Racing Association have not taken a position on the bill. NTRA president and CEO Alex Waldrop has said his organization would like to see more consensus on the bill before taking a position.

For full testimony, as submitted by all parties ahead of the hearing, click on the links below.

Stuart Janney, The Jockey Club

Kitty Block, The Humane Society of the United States

Craig Fravel, Breeders' Cup

Alan Foreman, Thoroughbred Horsemen's Association

Eric Hamelback, National Horsemen's Benevolent and Protective Association

Ed Martin, Association of Racing Commissioners International

A letter in support of the bill from Belinda Stronach, The Stronach Group

H.R. 2651, Horseracing Integrity Act of 2017