Posted: April 6, 2018
Three perspectives on how to achieve North American uniformity of Thoroughbred racing regulations were presented April 5, second day of the Association of Racing Commissioners International conference on Equine Welfare and Racing Integrity. And the question was raised about whether industry stakeholders are getting the real picture when it comes to progress in medication regulation and drug testing.
James Gagliano, President and Chief Operating Officer of The Jockey Club, batted lead-off and pushed for a proposed federal bill that would put control of drug testing in the hands of the United States Anti-Doping Agency—a move widely opposed by the major horsemen’s associations, most racing regulators and privately by many racetracks.
Alan Foreman, Chairman and Chief Executive Officer of the Thoroughbred Horsemen’s Association, countered that the Interstate Compact on Anti-Doping and Drug-Testing Standards spearheaded by the THA and Mid-Atlantic region regulators, is a template for achieving the uniformity that counts without adding a costly and unnecessary bureaucratic layer.
The New Jersey Racing Commission, which is part of the Mid-Atlantic alliance, adopted a third approach by changing its laws to where ARCI model rules automatically go into effect in the Garden State—a method known as “by reference.” The model rules are created and approved by the ARCI board to provide the blueprint for individual jurisdictions in the regulation of horse racing.
Gagliano painted a picture of an American industry that needs the federal Horseracing Integrity Act to stay viable internationally by establishing a single authority to create and implement a national uniform medication program while putting medication oversight in the hands of USADA, which does not do actual testing but contracts with existing labs.
He said that since 2012, only 11 states have passed all components of the industry-developed National Uniform Medication Program: the Controlled Therapeutic Substances List, laboratory accreditation, third-party administration of race-day Lasix, and the Multiple Medication Violation Penalty System. Gagliano said even though The Jockey Club is a staunch support of the Racing Medication and Testing Consortium, it “simply can’t agree with the RMTC and others’ assessment of progress or accept the status quo.”
“Until and unless states agree to adopt the ARCI model rules by reference, all effective on the same date and so long as the National Uniform Medication Program remains a living document, we most assuredly will never achieve uniformity in our current regulatory system,” Gagliano said. “We and our colleagues at the Coalition for Horse Racing Integrity and hundreds of members of the Water Hay Oats Alliance and others believe the unified body is contained in (the federal bill).
“It will provide a level playing field within North American racing and will be a foundation for harmonizing U.S. racing with international racing. We as a racing nation–and arguably the leading racing nation in the world–cannot continue to ignore the concerns of our international colleagues with our glacial progress toward uniform rules.”
The legislation would create the Horseracing Anti-Doping and Medication Control Authority, and the Federal Trade Commission would have exclusive jurisdiction over all horseracing anti-doping and medication control matters, according to a synopsis.
Foreman, who serves as Vice Chairman of the RMTC, said there is uniformity where it matters, as well as “facts in a different context than what you may hear in other forums.”
“There has been a steady drip of releases the past few weeks and narratives from those who support federal legislation and reported in essentially industry-controlled media sites with this drumbeat of steady criticism of the way you all are regulating this business,” Foreman told state regulators. “We all know our principle tenets: fairness of competition; a level playing field; integrity of the sport; protection of the betting public; and the protection of the health and welfare of the horse.
“We drug test, we identify prohibited substances and don’t permit prohibited substances. The enforcement might be different, but ladies and gentlemen, we are uniform. What we’ve tried to do over the years—and some people beat us up for this—is we try to do it better.”
Foreman said 97% of pari-mutuel handle on horse racing in America comes from states that have adopted the RMTC Controlled Therapeutic Substances list. “So when they tell you that we’re not uniform, put it in perspective as to who is not doing this, and does it really matter?” he said.
Foreman said the Mid-Atlantic and Northeast represent 40% of national handle on a daily basis as the nation’s largest concentration of racing, including at times when about 10 Thoroughbred tracks within 200 miles might run at the same time. As such, the Mid-Atlantic has led the charge toward uniformity, with its regional regulatory group mushrooming and creating what has become a potentially national compact in the Interstate Compact on Anti-Doping and Drug-Testing Standards, he said.
“It’s everyone who has skin in the game at this segment of our business, and they’re not there to bring their agendas,” Foreman said of the Mid-Atlantic working group, which most recently met in late March. “They are there to help collectively move us forward to see if we’re complying with the national program. Are there next steps to take? What are the problems we need to address?”
Foreman said there was a 23% reduction in positive findings among post-race drug tests in 2017 from 2016 in the region, including only three in New York last year, and a 27% decrease in equine fatalities from 2013 to 2017. He said that four years ago only a handful of racing laboratories had national accreditation, but today only one state’s lab is not accredited.
“You hear all this stuff in the media about chaos and confusion and lack of uniformity,” Foreman said. “Is that chaos? Is that confusion? That’s compliance with a program.
“A compact is a streamlined way of getting us all collectively to adopt a rule and implement it at one time. It requires legislation in every state that wants to join. Maryland became the first state last week to unanimously adopt the compact. I expect by end of the year we’ll have Delaware, New Jersey, New York; West Virginia will be next year because we’re beyond their (legislative) deadline. The compact is not being created to become this new rule-making body.”
Compacts don’t have “opt-out” provisions, but the Mid-Atlantic compact—open to any state to join—requires that 80% of member jurisdictions vote in favor for a compact rule to pass.
“It’s a protection device to insure there is at least the ability to discuss and send back for further consideration a proposed rule,” Foreman said. “It is designed as the next logical step, and that is: If you have a consensus and want to make a change, we can do it one time and do it quickly. Our horsemen want it, and our regulators want it. It’s in everybody’s best interest, and it’s totally non-threatening.
“The Mid-Atlantic has agreed to do this. And if nobody else does, that’s fine. This is not one of these, ‘OK, we’ve got a national thing here and because Nevada and Wyoming didn’t join you don’t have a national compact and we’ve got to run to the federal government because they’re the only ones who are going to get it done.’ We’re going to do it for the people for whom it’s important.”
ARCI President Ed Martin said states, including those outside the Mid-Atlantic region, have approved various forms of enabling legislation to join a compact. “There are more states looking at it for next year, and you are seeing some concrete advancement on this concept,” he said. “It’s not a theoretical.”
Judy Nason, Deputy Director of the New Jersey Racing Commission, said her state looks forward to being a member of the compact. In pursuit of uniformity in 2014, New Jersey opted to adopt ARCI’s model rules by reference.
“When ARCI updates the rules and amends them, New Jersey automatically incorporates those amendments and supplementations by reference,” she said. “It keeps us current with the work of this body.”
Eric Hamelback, CEO of the National Horsemen’s Benevolent and Protective Association, which opposes the federal bill, asked Gagliano from the audience about his repeated references to international racing and grade I stakes.
“Are you talking about a class separation in integrity and a variation in testing?” Hamelback said. “Because you distinctly left out what I would consider 95% of racing. We all agree essentially that North American racing is the leader in the world. So why does the international comparison continue to be utilized?”
Foreman said that in the Mid-Atlantic and Northeast, every lab tests to the level of graded-stakes protocols.
Martin said everyone agrees on most aspects of where the industry needs to be in regard to medication and drug testing, and that industry resources could be better spent on what really matters.
“There is a lot of money being spent on people to argue from both sides of this issue,” Martin said. “I sit on the board of the RMTC, and I look at the amount of money committed to research. I look at the number of strains of (Erythropoietin, used in blood- doping) that nobody in the world—in horse racing labs or human labs—can detect. And where our challenge is with emerging threats, the amount of money we’re spending disagreeing over what route we should take (to uniformity), if that money was given to the RMTC to do research, we might be better off.
“This is a tough sport to police, whether you’re in California, New York, Washington, France, or Great Britain. We need to collectively figure a way to pool certain resources and focus in on real threats we have to the integrity of this sport as well as the health and welfare of our horses. There might be some times when we just have to agree to disagree. But in the scheme of things, they are relatively minor.”
Emerging drug threats, research funding, and laboratory progress
One of the daunting challenges for racing’s testing detectives trying to ferret out illegal substances in horses is the ability of people with a credit card and mailing address to purchase from unscrupulous websites drugs that have the potential to affect performance in a race, said Dr. Rick Sams, laboratory director of the LGC Science Inc., which handles Kentucky horseracing’s testing, during a panel discussion at the ARCI conference.
Sams said that the some substances showing up in post-race samples are listed as research chemicals “sold with disclaimer that they are for research purposes only and not to be administered to humans or animals. Some have never been tested in animals or humans for any purpose. They are sold on the Internet and can end up in people or horses that are entered to race.
“We have to know the identity of these substances in order to enter them into our databases so that we can make identifications when we encounter them. Methods to identify some of these substances will require innovative methods, and that will require considerable research funding.
“Delays in our ability to find these substances are risk factors for integrity of racing and also potentially damaging to the health and welfare of the horse and human participants in racing.”
Other areas of concern for the testing labs: selective androgen receptor modulators, known as SARMs, that appear to build muscle and burn fat but none of which are approved for use in medicine; designer drugs that include synthetic opioids; drugs resurfacing in racing samples after being discontinued because of side effects or addiction liability; and peptides, some of which are designed to have an anabolic-steroid effect.
“There are qualitative issues in regard to these substances,” Sams said of such online purchases. “In some instances they are impure. In some instances they don’t contain what they are labeled to contain, or they contain too much or too little based on label claim.”
RMTC Executive Director Dr. Dionne Benson said the consortium no longer focuses on therapeutic medication with precious research dollars. “We’re focusing on things that should never be in a horse, and eliminate those threats,” she said.
She said the RMTC also is starting “double-blind testing” of the country’s racing testing labs, sending out doctored samples along with legitimate post-race regulatory samples to see if the lab detects substances. RMTC currently is doing single-blind testing, in which the lab is told to test urine and blood samples that it knows were prepared by the RMTC.
“We know the labs are going to do their best work on it,” Benson said. “But what we need to find out is if your samples that you send in as a commission are treated the same way. This is the only program like this in the world. We are learning a lot about the laboratories and their capabilities this way. The laboratories are doing fairly well. In some cases we’re finding that we administer drugs and none of the laboratories can find them, which doesn’t necessarily mean that’s a failure of laboratories. It means we need to do more work on that specific medication or substance because no one can find them.
“The goal here is we can certify that these labs can do the best work in the world. They were talking earlier about ‘super testing’ (for major races). Virtually every laboratory in the country is capable of—and most of them are doing—super testing on everything from a $5,000 claimer to the Kentucky Derby. It’s not a situation anymore where we have many levels of testing. We’ve moved the needle quite a bit.”
(ARCI conference photo by Jennie Rees)