United States: Guest Post: Injuries And Related Drug Use On The Track

Published with permission by Rutgers student Rita Baorto, who submitted this paper for "Animal and the Law," a class I taught during the Spring semester, 2016.

Horse racing has been a part of the culture of the United States, and the world, for over a hundred years. Whether people follow it religiously all year, or only watch the Triple Crown, horse racing is an integral part of American lives. Especially this year, with the first winner of the Triple Crown since 1978, eyes have turned to the horse racing industry with renewed focus. Even though no one can deny that American Pharaoh lives the life any horse would dream of, many race horses are not so lucky. Irresponsible breeders saturating the market with unwanted horses, disguising injuries on the track, as well as starting horses too early, all contribute to the flaws within the racing industry. One of the most critiqued problems on the race track is the number and type of injuries that occur, as well as related drug use. The use of both performance enhancing and pain disguising drugs in racehorses often leads to increased injuries and death on the racetrack, despite the laws and regulations put in place to discourage that use.

Background

The act of testing the speed of two or more horses against each other, while wagering bets on which one was faster, has been in existence for thousands of years. In the Roman Empire, chariot racing was an extremely prominent pastime.¹ In the United States, while horse-racing occurred since colonial times, it did not become extremely popular until after the civil war.1 Naturally, as large amounts of money started to be shuffled back and forth with both wagering and the buying and selling of horses, regulations needed to be put in place.

Federal Legal Authority

As time went on, the controversy of horse racing came into the public eye. The issue of drug use to disguise injuries as well as the sheer number of injuries on the track, necessitated regulation to try and fix these problems.² Currently there are no federal laws regulating the use of pain relieving drugs in horses—there is only state legislation. However activists are pushing for the federal government to get involved.

Shortly after the death of Eight Belles in 2008, Congress had a hearing entitled "Breeding, Drugs and Breakdown: The State of Thoroughbred Horse Racing and the Welfare of the Thoroughbred Racehorse." Representative Jan Schakowsky said:

The death of Eight Belles on the track of the Kentucky Derby 2 months ago was a symptom of a host of problems that plague thoroughbred racing. The best racehorses in the sport are bred for speed because they make their money in the breeding shed instead of on the racetrack. Catastrophic breakdowns of thoroughbred horses are becoming more common as they become increasingly fragile over the years. Horses are doped up on performance-enhancing drugs such as cocaine, caffeine, and anabolic steroids to make them as fast as possible.³

Representative Schakowsky emphasized and highlighted the problems of horse racing, and explained how the industry needs to change not only for the integrity of sport but the safety of the horses and the jockeys. In addition, he emphasized why the method of breeding thoroughbred horses is the source of many of the industry's problems.

Representative Ed Whitefield from Kentucky called for the unification of horse racing regulations. He discussed how greed has harmed the horse racing industry, and how the jockeys and the horses have been affected by this greed. He also pointed out the weakness in the industry, as there is no central governing body.3 He said:

[u]nlike every other professional and amateur sport, horseracing lacks a central regulatory authority or league that can promulgate uniform rules and regulations. While baseball and football now impose strict rules that severely penalize players for steroid and performance-enhancing drugs, horseracing remains a confusing patchwork of different regulations from State to State.⁴

Since the horses are suffering from this lack of unity, Representative Whitefield stressed that it is essential that a measure of uniformity be put in place. In addition, he stressed that since the amount of money being passed back and forth is so large, it appears foolish that there is no central governing body.

In May 2013, the Horse Racing Integrity and Safety act of 2013 was introduced during the 113^th Congressional session. This bill proposed the formation of an organization designed to create rules regarding the use of both performance enhancing and pain disguising drugs in horses. The bill states: "[t]here shall be an independent anti-doping organization with responsibility for ensuring the integrity and safety of horseraces that are the subject of interstate off-track wagers."⁵ This organization would determine which drugs would be legal on race day. It would also regulate whether drugs were permitted to be given before race day, and if permitted, what dosage and frequency of treatment is allowed.3 However this bill did not pass, nor has the most recent version reintroduced during the summer of 2015.

Federal control of horse racing may allow for greater control over the use of certain drugs. During the Congressional hearing titled, "the Horse Racing Integrity and Safety Act of 2013," Gregory Ferraro, DVM, Director of the University of California at Davis' program for Equine Health testified: "[w]ith the myriad of state and local controls over racing and the various interests, from owners to trainers to racing jurisdictions, there is virtually no way that you're going to be able to get any kind of consistent rule to control these drugs without some kind of federal legislation." Dr. Ferraro and others argued that because there is no single governing body over the horse racing industry in the United States, it is virtually impossible for certain drugs to be consistently banned or remain legal.⁶

State Legal Authority

Horseracing is largely regulated by the states. In New Jersey, the New Jersey Racing Commission, in the Department of Law and Public Safety is responsible for regulating the safety and the integrity of the horse racing industry.⁷ It has jurisdiction over Thoroughbred and Standardbred racing in this state. This commission oversees the extraction and screening of blood or urine from race horses to ensure that horses have not been inappropriately drugged for a race.5 It also conducts hearings on anyone accused of violating the state laws and regulations.

In June 2014, the commission proposed an amendment banning the presence of any drug or medication in all horses on race day:⁸

On race day, irrespective of the date, time or method of administration, no horse entered to start in, or participate in, a race shall carry in its body any drug or substance foreign to the natural horse, except external rubs and innocuous compounds.

N.J.A.C. 13:70-14A.1.6 This amendment was intended to improve both the health of the horses racing, as well as the integrity of the horse racing industry by eliminating the amount of drugs used on race day. However this amendment was not adopted.

Drug Use on Tracks

Even though there is no single governing body, there is some consistency regarding the drugs that can be used on race day. In most states, only a drug called furosemide can be given to horses. Furosemide is used to decrease the risk of exercise-induced pulmonary hemorrhage in race horses,4 a condition characterized by bleeding in the nasal passageways, lungs and trachea after strenuous exercise. It is a common condition in race horses, with a prevalence rate of 50 to 60%. Exercise-induced pulmonary hemorrhage has also been diagnosed in other equine disciplines that involve acute strenuous exercise, such as cross country and polo competitions.⁹

While widely used to prevent pulmonary hemorrhage, furosemide is believed to have performance enhancing affects as well. In one study involving thoroughbred race horses, furosemide appeared to delay fatigue in treated horses compared with those untreated, creating an unfair advantage to the treated race horses. Yet it remains legal to treat horses, even on race day with furosemide in many states. In addition, when horses are on performance enhancing drugs, they are able to push themselves beyond the limits that their bodies would originally allow, which can causes them to sustain serious and sometimes fatal injuries.

Phenylbutazone, commonly known as Bute, can be given prior to race day. However, there is a limit in the amount that is allowed in the horse's blood stream which varies state to state.¹⁰ Animal rights activists, as well as some involved in the horse racing industry, believe that instituting federal control would improve the welfare of the horses and the integrity of the sport.¹¹

There are almost 30 medications that may be used in race horses, but many states impose threshold limits for these medications, even those that have been proven to have performance enhancing effects.¹² These thresholds would hopefully limit the use of drugs as much as possible, as well as control their abuse.

Conversely, even though many people agree that the use of drugs in the horse racing industry is excessive, it would be impractical to prohibit drugs completely. Horse racing is a fast paced, dangerous sport, for humans and horses alike. Some of the possible risks associated with horse racing are reduced by the use of certain drugs. As Kathryn Papp, DVM, of Hillcrest Meadow Equine Services in Harrisburg, Pennsylvania testified before Congress: "furosemide can help reduce the risk of exercise-induced pulmonary hemorrhage (EIPH)."¹³ This condition is treatable with drugs like furosemide. This demonstrates that drugs, although often abused by people in the industry can be necessary to prevent some risks associated with racing.

Injuries on the Track

The number of fatal and non-fatal horse injuries presents additional challenges to the horse racing community.¹⁴ A fatal injury is one where the horse dies or has to be euthanized up to 72 hours after the race has taken place.¹⁵ The Jockey Club has kept track of the number of fatalities that occurs yearly on race tracks across the United States, as published by participating racetracks.11 The Jockey Club has included more than 1.5 million starts in their summary of fatalities. The number of fatalities have been fairly static throughout the years. There were 2.00 fatalities per 1,000 starts in 2009, 1.88 fatalities per 1,000 starts in 2010 and 2011. In 2012 there were 1.92 fatalities per 1,000 starts, in 2013 there were 1.90 fatalities per 1,000 starts and in 2014 there were 1.89 fatalities per 1,000 starts.11 The Jockey Club also found that two year old racehorses were the least likely to be injured while racehorses that were four years and older were the most likely to be injured. However, more recently, three year old racehorses were found to be more likely to break down than racehorses that are four years or older.¹⁶ This injury data compiled base by the Jockey Club will help identify how the industry can target and prevent injuries in the future.

Case Law

Even though it has become clear to many that the horse racing industry requires federal legislation in order to unify and strengthen the laws against certain types of drugs, states have historically enforced laws to protect race horses. In Hickey v. Riera, an Illinois court of appeals reviewed charges against Peter Noel Hickey, a horse trainer for 30 years who was licensed by the Illinois Racing Board, before his license was suspended by the Board. The background of the case states:

In July 1994, an initial test indicated that post-race urine samples taken from horses that raced on July 21, 1994, contained some type of bronchodilator. The director of the Board laboratory, Shelley Kalita, explained that between 1991 and 1994, the lab could detect bronchodilators, but could not confirm the presence of albuterol.¹⁷

The presence of albuterol in the Hickey's horses was confirmed using more sophisticated tests that were later available. The plaintiff was found guilty of using albuterol and was suspended for 180 days. However the situation soon became more complicated.

Plaintiff testified that, in February 1994, he met a man named Dale Smallwood at a horse auction. While Smallwood had purchased some horses from plaintiff previously, plaintiff asserted that he did not know anything about Smallwood's background. Smallwood claimed to have a supplement that would strengthen the capillaries and veins of Hickey's horses who were bleeders. Plaintiff asked Smallwood if he could obtain some of the supplement. Approximately six weeks after their meeting, Smallwood delivered two unlabeled containers, about a quarter of a gallon each, of a white, sugary powder to plaintiff. Plaintiff paid $1,000 for this substance.¹⁸

The plaintiff insisted that he did not know that he was giving his horse's albuterol, and as a result he was given the minimum sentencing. The Illinois Court of Appeals upheld his suspension. This case demonstrates that the Illinois Racing Board, which has jurisdiction only over the state of Illinois, was effective in restricting the use of an illegal substance in horses. However the sentence was relatively light as the plaintiff only had half a year of suspension, no civil fines, and no loss of purses.

In Kenneth Register v. Louisiana State Racing Commission the state racing commission applied a more rigorous penalty when a trainer repeatedly violated laws governing the use of drugs in race horses with drugs.

On May 31, 1999, 'Streakin for Mora,' a horse trained by Mr. Register won a race at Delta Downs in Vinton, Louisiana. A routine urine sample was obtained from the horse and submitted for testing of prohibited substances under the Rules of Racing and the authority of the LSRC. According to procedure, the specimen was sent to Louisiana State University, and was returned positive for the presence of Metaraminol, a Category I drug. After notifying Mr. Register of the positive test results, he requested that the sample be retested by Texas A & M University. The retesting confirmed the LSU findings of the presence of Metaraminol.¹⁹

The Louisiana State Racing Commission suspended Kenneth Register's license for 15 years as assessed a $5,000 fine.²¹ Register appealed, arguing that the penalty was too severe. The court concluded the penalty was appropriate since Register had an extensive record of drug related infractions:

The technical testimony elicited at the July 8, 1999 hearing revealed that the type of drug detected in 'Streakin for Mora' was a Category I drug. Thus, the guidelines recommend a suspension of license for a period of not less than one year and not more than five years and a fine of $5,000. However, if it is concluded that mitigating or aggravating circumstances exist, then the commission can impose any penalty it deems appropriate.²⁰

The Louisiana Court of Appeals upheld the Louisiana State Racing Commission's decision suspension fine. This case demonstrates that the regulation of drug use in horse racing on the state level can be very stringent. However, it also demonstrates the weakness of the current state wide regulation of the industry because Register was able to move to obtain licenses in different states, even though he was suspended in Louisiana. If there had been a more centralized governing body, then Kenneth Register would not have been able to get relicensed in other states when he had already been suspended.

The Possible Demise of Horseracing

Even though in the last 20 years horse racing has lost its integrity in the eyes of the public, it has a proud history in American culture and it would be nearly impossible to prohibit it completely. Many activists groups, such as PETA, believe that the mere concept of horse racing is abusive to the horses.²¹ I believe this sentiment is not widely accepted because of the longstanding history of horse racing in this country and the fact that the horse racing industry remains a staple to many people's ways of life. Dr. Karen Malinowski, an equine science professor at Rutgers University states "the New Jersey equine industry benefits every resident in the state through its socio-economic influence, reflected in its positive annual economic impact and its role in the preservation of working agricultural landscape, which enhances the quality of life for all in the 'Garden State'"²²

The horse racing industry has a huge economic impact. It creates millions of jobs, from grooms, to trainers, veterinarians and farriers. If the industry were illegalized, millions of people would be out of work. In addition, the betting involved in horse racing also has a huge economic impact. Dr. Malinowski states, "the Garden State stands to lose the greatest portion of its premier agribusiness that generates $780 million of economic impact annually, 7,000 jobs, $115 million in federal, state and local taxes, and 57,000 acres of working agricultural landscape and open space, if racing-related training and breeding farms leave New Jersey."21 These are the number of jobs that are created by the equine industry in New Jersey. In other parts of the country, where racing is much more centralized, it has an even greater impact. This further demonstrates the impact that horse racing has on American life.

Especially in recent years, there are endless controversies associated with horses racing. Many activists believe that horse racing should be illegalized completely. However that would have unfathomable repercussions on the United States economy and way of life. However, there should be revisions in the horse racing industry, as the use and abuse of performance enhancing and pain disguising drugs is prolific and wide spread. A more central federal governing body would help the industry provide and enforce more consistent regulations governing the use of drugs in horse racing, that will help protect the horses and preserve this American industry.

Bibliography

Geor, Ray. "EIPH: Exercise-Induced Pulmonary Hemorrhage." TheHorse.com. November 1, 2001. Accessed March 20, 2016 at http://www.thehorse.com/articles/12529/eiph-exercise-induced-pulmonary-hemorrhage.

New Jersey Racing Commission. New Jersey Office of the Attorney General. Amendments Would Impose Race Day Ban on Certain Substances, Levels of Therapeutic Medications in Thoroughbred Horses. By John J. Hoffman and Frank Zanzuccki.

"Horse Racing Fact Sheet." Horse Racing Fact Sheet. Accessed March 19, 2016 at http://www.horsefund.org/horse-racing-fact-sheet.php.

"The History of Horse Racing | HorseRacing.com." HorseRacingcom. 2016. Accessed March 19, 2016 at http://www.horseracing.com/history-of-horse-racing/.

Kane, Ed. "Panel Questions Drugs in Horse Racing." Dvm360.com. July 1, 2012. Accessed March 19, 2016 at http://veterinarynews.dvm360.com/panel-questions-drugs-horse-racing.

Malinowski, Karyn. "What Does Horse Racing Stand to Lose If There Is No Horse Racing in the State." July 23, 2010. Accessed March 15, 2016 at http://esc.rutgers.edu/wp-content/uploads/2014/11/NJlosenohorseracing.pdf.

"Horse Racing." PETA. Accessed March 20, 2016. http://www.peta.org/issues/animals-in-entertainment/horse-racing/.

Pitts, Joseph. "Horseracing Integrity and Safety Act of 2013 (2013 – H.R. 2012)." GovTrack.us. May 13, 2013. Accessed March 19, 2016 at https://www.govtrack.us/congress/bills/113/hr2012.

Poole, Dc, P. Mcdonough, Ca Kindig, Ts Hildreth, Dj Padilla, Bj Behnke, Hh Erickson, and Dc Poole. "Effect of Furosemide and the Equine Nasal Strip on Exercise-induced Pulmonary Haemorrhage and Time-to-fatigue in Maximally Exercising Horses." Equine and Comparative Exercise Physiology 1, no. 3 (2004): 177-84.

"New Jersey Racing Commission." State of New Jersey. Accessed March 20, 2016 at http://www.nj.gov/oag/racing/.

The Blood Horse Staff. "Thoroughbred Racehorse Fatal Injury Rate Steady in 2012." TheHorse.com. Accessed March 20, 2016 at http://www.thehorse.com/articles/31489/thoroughbred-racehorse-fatal-injury-rate-steady-in-2012.

"The Jockey Club Releases Year-over-Year and Six-Year Summary from Equine Injury Database." The Jockey Club. March 13, 2015. Accessed March 20, 2016 at http://www.jockeyclub.com/Default.asp?section=Resources.

Footnotes

[1] The History of Horse Racing, HorseRacing.com., 2016, accessed March 19, 2016 at http://www.horseracing.com/history-of-horse-racing/.

[2] Horse Racing Fact Sheet. Accessed March 19, 2016. http://www.horsefund.org/horse-racing-fact-sheet.php.

[3] Breeding, Drugs, And Breakdown: The State of Thoroughbred Horse Racing and the Welfare of the Thoroughbred Racehorse, House Hearing, 110 Congress (June 19, 2008).

[4] Breeding, Drugs, And Breakdown: The State of Thoroughbred Horse Racing and the Welfare of the Thoroughbred Racehorse, House Hearing, 110 Congress (June 19, 2008).

[5] Pitts, Joseph. "Horseracing Integrity and Safety Act of 2013 (2013 – H.R. 2012)." GovTrack.us. May 13, 2013. Accessed March 19, 2016 at https://www.govtrack.us/congress/bills/113/hr2012.

[6] Kane, Ed. "Panel Questions Drugs in Horse Racing." Dvm360.com. July 1, 2012. Accessed March 19, 2016 at http://veterinarynews.dvm360.com/panel-questions-drugs-horse-racing.

[7] "New Jersey Racing Commission." State of New Jersey. Accessed March 20, 2016 at http://www.nj.gov/oag/racing/.

[8] New Jersey Racing Commission. New Jersey Office of the Attorney General. Amendments Would Impose Race Day Ban on Certain Substances, Levels of Therapeutic Medications in Thoroughbred Horses. By John J. Hoffman and Frank Zanzuccki.

[9] Geor, Ray,"EIPH: Exercise-Induced Pulmonary Hemorrhage," TheHorse.com. November 1, 2001. Accessed March 20, 2016 at http://www.thehorse.com/articles/12529/eiph-exercise-induced-pulmonary-hemorrhage.

[10] Kane, Ed., "Panel Questions Drugs in Horse Racing." Dvm360.com. July 1, 2012. Accessed March 19, 2016 at http://veterinarynews.dvm360.com/panel-questions-drugs-horse-racing.

[11] "Horse Racing." PETA. Accessed March 20, 2016 at http://www.peta.org/issues/animals-in-entertainment/horse-racing/.

[12] John J. Hoffman and Frank Zanzuccki, "Amendments Would Impose Race Day Ban on Certain Substances, Levels of Therapeutic Medications in Thoroughbred Horses," New Jersey Racing Commission, New Jersey Office of the Attorney General.

[13] Kane, Ed, "Panel Questions Drugs in Horse Racing." DVM360.com. July 1, 2012. Accessed March 19, 2016 at http://veterinarynews.dvm360.com/panel-questions-drugs-horse-racing.

[14] "Horse Racing," PETA. Accessed March 20, 2016 at http://www.peta.org/issues/animals-in-entertainment/horse-racing/.

[15] "The Jockey Club Releases Year-over-Year and Six-Year Summary from Equine Injury Database." The Jockey Club. March 13, 2015. Accessed March 20, 2016 at http://www.jockeyclub.com/Default.asp?section=Resources.

[16] "The Jockey Club Releases Year-over-Year and Six-Year Summary from Equine Injury Database." The Jockey Club. March 13, 2015. Accessed March 20, 2016 at http://www.jockeyclub.com/Default.asp?section=Resources.

[17] Hickey v Riera, Appellate Court of Illinois, First District, Second Division. 2001. No. 1-98-1749. Caselaw.findlaw.com. March 20 2012. http://caselaw.findlaw.com/il-court-of-appeals/1189151.html.

[18] Hickey v Riera, Appellate Court of Illinois, First District, Second Division. 2001. No. 1-98-1749. Caselaw.findlaw.com. March 20 2012. http://caselaw.findlaw.com/il-court-of-appeals/1189151.html.

[19] Register v. Louisiana Racing Commission, Court of Appeals of Louisiana, Fourth Circuit, No. 2000-CA-0652. Caselaw.findlaw.com. March 20, 2016. http://caselaw.findlaw.com/la-court-of-appeal/1294634.html.

[20] Register v. Louisiana Racing Commission, Court of Appeals of Louisiana, Fourth Circuit, No. 2000-CA-0652. Caselaw.findlaw.com. March 20, 2016. http://caselaw.findlaw.com/la-court-of-appeal/1294634.html.

[21] "Horse Racing." PETA. Accessed March 20, 2016 at http://www.peta.org/issues/animals-in-entertainment/horse-racing/.

[22] Malinowski, Karyn, "What Does Horse Racing Stand to Lose If There Is No Horse Racing in the State." July 23, 2010. Accessed March 15, 2016 at http://esc.rutgers.edu/wp-content/uploads/2014/11/NJlosenohorseracing.pdf.

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