Congress introduces legislation to ban performance-enhancing drugs

Proposed new federal legislation calls for the elimination of race-day drug usage in Thoroughbred horses. The Interstate Horseracing Improvement Act of 2011 would, if enacted, attempt to reduce the common use of furosemide and phenylbutazone, also called bute.

The act would hold trainers and racetrack practitioners who administer illegal substances accountable for their actions, but it would most likely include threshold levels of other therapeutic medications, similar to rules enacted in England, Hong Kong and other countries.

The act would force racetracks that use simulcasting to adopt a no-drug policy. If the bill is passed, all drugs on race day would be prohibited, and penalties would be imposed for violations.

The legislation was introduced on May 4, 2011, by U.S. Rep. Edward Whitfield, R-Ky., and Sen. Tom Udall, D-N.M., and is co-sponsored by U.S. Reps. Joseph Pitts, R-Pa.; Ben Chandler, D-Ky.; and Janice Schakowsky, D-Ill. Whitfield and Udall serve on the House and Senate committees with jurisdiction over the Interstate Horseracing Act. Whitfield is a member of the House Energy and Commerce Committee, and Udall is a member of the Senate Commerce Committee.

The Subcommittee on Consumer Protection and Trade has not yet scheduled public hearings on the proposed legislation but estimates that they will be held next September or October. "One of the purposes of the hearings is to give everybody a chance to voice their concerns," says Whitfield. He notes that this is a complex issue and that those in the horseracing industry, including veterinarians, will get a chance to testify about the bill before it comes up for a congressional vote.

Speaking about the proposed act, Udall says, "Chemical warfare is rampant on American racetracks, and unlike other countries, our law does not reject this unscrupulous practice. A racehorse has no choice when it comes to using performance-enhancing drugs, but this legislation takes away that option from those who would subject these magnificent animals to such abuse for gambling profit. Those involved in horseracing will have to play by the rules or face getting kicked out of the sport."

Unlike other countries, racing jurisdictions in the United States allow horses to be medicated on race day.

A joint statement released by Whitfield and Udall says, "The industry's permissive medication rules have resulted in some unscrupulous trainers giving horses painkillers and other drugs to improve their chances of success without regard for health or safety. This can mean that horses run as fast as possible without feeling the pain that might otherwise provide warnings to prevent catastrophic injury to horse and jockey."

For example, in September 2007, Kentucky racing stewards suspended Rod Stewart, DVM, for five years, four of which were for possession of the snake venom alpha-cobratoxin, a nerve-blocking agent. Kentucky Horse Racing Authority investigators found the illegal drugs in barns at Keeneland Race Course, Lexington, Ky., used by trainer Patrick Biancone in June 2007.

Scope of the problem

The joint congressional statement notes, "There are numerous examples of trainers who violated medication rules multiple times, seemingly with impunity. A recent Racing Commissioners International letter notes that one trainer has been sanctioned at least 64 times in nine states for various rule violations, including numerous violations of drug rules. According to the New York Times, only two of the top 20 trainers in the United States (by purses won) have never been cited for a medication violation."

Most in the horseracing industry find the use of illegal drugs in race horses disconcerting. The spirit of the legislation is to deter potential offenders, improve horses' health and safety and improve the public's perception of the sport.

"This is basically to clean up the drug situation in the Thoroughbred industry, similar to any other sport —all the performance-enhancing drugs that are allowed on race day, like furosemide, bute, etc.—in order to have us be like the rest of the world," says Arthur Hancock, owner of Stone Farm, Lexington, Ky. "The purpose of the legislation is to regain our integrity, like England, France and Hong Kong, and to protect the breed and its superior genetics as to compared to Thoroughbreds in those countries. There should be no performance-enhancing drugs in a horse's system on race day. There can be a pica gram of something or other, just like in England, especially if a horse is suffering from a cut, as long as the drug is not performance-enhancing. That's basically the thrust of the bill in Washington."

Hancock says the bill is similar to English rules: If a drug affects any of the horse's systems in a way that would enhance performance, it would be banned. "One can train with therapeutic drugs, as are the rules set by the Jockey Club in England, similar to our model rules," says Hancock. The Racing Medication and Testing Consortium and veterinarians would have to decide on similar rules. If enacted, the bill would give the Federal Trade Commission (FTC) the right to set new rules in consultation with equine veterinarians.

AAEP, The Jockey Club support spirit of the bill

"As doctors of veterinary medicine, our primary focus when evaluating the act is its effect on the health and safety of the racehorse," says William Moyer, DVM, president of the American Association of Equine Practitioners (AAEP), in a statement issued May 6. "AAEP supports the responsible use and regulation of valid therapeutic medications in horseracing. We also support the concept of a national uniform medication policy.

"Racehorses currently compete in a heavily regulated environment with very clear distinctions between illegal drugs and valid medications that provide therapeutic benefit," Moyer says. "The very broad language of the bill could eliminate, as written, beneficial treatment of active equine athletes at any time—not just on the day of competition. We urge Congress to work with the horse racing industry to learn more about the healthcare implications of this bill as it is written and stand ready to assist in that process."

James Gagliano, president and COO of The Jockey Club, declined to comment on the legislation until he had had a chance to fully review it. "The Jockey Club shares the belief that performance-enhancing medication has no place in Thoroughbred racing," Gagliano says. "As we said in our April 28th statement, The Jockey Club stands convinced that the elimination of race-day medication is essential to achieving optimal stewardship of the horse, the sport, the public perception and confidence and the business of Thoroughbred racing."

But Ed Martin, president of the Association of Racing Commissioners International, has some reservations about the bill. "When you look at the bill, when you get past all the rhetoric, what you have is what appears to be an attempt to replicate the system in Canada, where a federal agency would be charged with the determination and enforcement of medication policy," says Martin. "The problem is this legislation doesn't provide a way to pay for that. This proposal also creates a potential system we fear could lead to the dismantling of the state drug testing apparatus. Every state racing commission is under tremendous budgetary pressure, and if people in the various state governments think they can shift those costs off some other layer of government, some legislators might attempt to do that."

Reasons for the proposed legislation

"The horseracing industry came to Congress in 1978 to ask it to adopt the Interstate Horseracing Act and allow simulcasting and off-track betting [across state lines]," says Whitfield. "Congress gave the industry everything it asked for; it did not have any conditions attached to it." Whitfield sees several reasons this legislation is needed now.

Whitfield notes that, since 1978, more and more owners and breeders have expressed concerns about rampant drug use within the U.S. racing industry. "No. 1, this is becoming a safety issue," Whitfield says. "No. 2, the objective is to get a horse out there in major races and then breed that horse. And people are concerned the horses that are winning races might not be the most genetically sound horses, but maybe the winning is associated with performance-enhancing drugs. Therefore, people have expressed concern that there's been weakening of the breed."

The third reason he cited for introducing the legislation is that other countries and regions such as the European Union, Middle East and Japan have no-drug policies.

Fourth, horse racing within the United States, with its 38 horse-racing jurisdictions, doesn't have one entity with the authority to do anything substantive about the drug-use problem. Rather, it's left to individual racing commissions in every state. The act is also meant to address the fact that every jurisdiction has different limitations on drug thresholds. "When someone is found to be in violation, it frequently becomes a legal issue," says Whitfield. "Was the test right? Did they have too little or too much of a particular drug? You get into a complex mechanism to deal with that issue."

Additionally, he says, "It seems more and more of a problem that many trainers who have violated drug rules frequently also are named outstanding trainers of the year. So there's no stigma attached to using drugs illegally."

Finally, Whitfield says, there's a need for consumer protection. "The betting public really doesn't know what a given horse has or doesn't have in it," he says. "Administrators in other sports are becoming stringent about drug use in those sports. And yet in horseracing it's even more difficult, because the athlete—the horse—does not have any say in what it is administered."

Zero tolerance for drugs on race day

If the bill is passed, racetracks would be required to perform drug testing, and they would not be permitted to exempt any medications, including bute and furosemide. "The emphasis would be no drugs on race day," Whitfield says.

If enacted, the law would be enforced through the FTC. It would require a state's racing commission to enter into a memorandum of understanding with the FTC.

So with the new legislation, could drugs be administered to horses a few days before a race? Whitfield says, "The overall objective is to get away from the rampant use of drugs being used today and basically have zero drug tolerance. But everyone understands that horses, like professional athletes, become injured, and they have pain. And many times you've got to do something to mitigate those issues, and you might have residual levels on race day."

An alternative view

"The proposed legislation, as it's currently drafted, has an additional layer of regulation on the racing industry in one general area, the medication and the drug testing program," says Martin. "We have an alternative proposal, one we hope the sponsors would embrace, which would not create another layer, but would reorganize the existing layer, in a multistate fashion, as an Interstate Regulatory Compact."

According to Martin, current public policy allows only one drug—furosemide—to be administered on race day. "There is considerable sentiment among my members to phase out the use of furosemide on race day," says Martin. "That's a proposal that has been made by our chairman, Commissioner Koester of Ohio. In that sense, there are some parallels with some things that are already underway. But there's an equine welfare debate that needs to take place before a change in public policy can be implemented. And that's what we're hoping to have over the next several months, so we can reach an informed and sustainable conclusion on this."

One of Martin's overriding concerns is the lack of exception. "A weakness of the proposed legislation is that it treats all substances equally," says Martin. "We have decades of work that has gone into the classification document and the existing regulatory policy—not only in the United States, but pretty much around the world—that has delineated the differences between the various substances. Some substances would indicate a deliberate attempt to cheat, and others would indicate a mistake in the shedrow. But the bill as it's currently proposed would kick somebody out of racing permanently for their third bute overage."

Ed Kane, PhD, is a researcher and consultant in animal nutrition. He is an author and editor on nutrition, physiology and veterinary medicine with a background in horses, pets and livestock. Kane is based in Seattle.