Do We Really Want to Stop the
Misuse of Drugs in Horses?
Thursday, March 4, 2004
8:45 a.m. - 10:00 a.m.

Mr. Stan Bergstein:  Ned Bonnie is one of the leading racing lawyers in the country, with a love of horses guiding his entire legal career. He and his wife, Cornelia, recently were awarded the lifetime achievement award from USA Equestrian. They own and operate a 530-acre horse and cattle farm in Oldham County, Kentucky. Ned is a Yale-educated lawyer, former steeplechase jockey, has prosecuted more than one thousand illegal medication cases, and he has also defended numerous owners and trainers.

Dr. George Maylin is a veterinarian with a PhD in pharmacology, an associate professor of toxicology at Cornell University in Ithaca, New York, and a director of the New York State Wagering and Racing Boards’ Drug Testing and Research program. He has been an international leader in the field for thirty years.  He is the author of more than seventy papers on the subject and working with Dr. Ken McKeever, of Rutgers in New Jersey last year, he developed an antibody reaction test, the most effective weapon to date against the dangers of EPO.

Dr. Scot Waterman received his veterinary degree from the University of Illinois fourteen years ago. He spent eight years in private practice, graduated with honors from the University of Arizona’s Racetrack Industry Program three years ago, and has distinguished himself as executive director of the NTRA’s Racing, Medication and Testing Consortium, where he has displayed amazing political talents as well as skilled technical direction in running a group that has widely disparate interests, but still is racing’s best hope of success in the war against illegal medication.

I have mentioned the University of Arizona Racetrack Industry Program earlier, and of course, we work very closely with them. HTA is fortunate each year in taking the pick of the litter. That’s how we got Paul Estok and Sable Downs. Another graduate of the program, who also is an honors graduate is here, Tammy Gantt, who is no longer with HTA, but is now with Calder Racecourse, where she is director of promotions and group promotions. I mention Tammy because she has a portable microphone with her and when we get to the portion where we ask questions of our speakers, just raise your hand and you won’t have to get up from your seat. She will bring you the microphone.

So Scott, how goes the battle?

Dr. Scott Waterman: Positively. We have, over the course of two years, developed a model medication policy document. It is not a complete text yet, but it gets us started on sort of the quest towards uniformity. I got back from Tucson last week, where we met with the model rules committees of RCI and NAPRA, and converted this policy document into model rules, and made tremendous, tremendous progress. It was a very positive meeting.  I think at least at this stage of the game, the regulators are favorably inclined toward our document. We will just keep plowing away.  Nothing happens fast.

Mr. Bergstein:  Do you have a timetable?

Dr. Waterman:  Yes, actually the hope is, at this point, the editing and drafting of the policy document, the model rules, and conversion will be done by the RCI, NAPRA joint convention the first week of April. The hope is at that point we will get both of those boards to bless the document and then we will start the process of working with individual jurisdictions.

Mr. Bergstein:  Ned, and his recent amazing paper called, “Do We Really Want to Stop the Use of Drugs in Horses?” put forth the suggestion that unless there are parallel funding sources, the thing is headed for difficulty and trouble. Has there been much thought given to approaching that?

Dr. Waterman: We actually, a year ago, two years ago, pretty early on in the process, started working on a formula we thought would get us to where we needed to be from a long-term funding standpoint. Pretty similar to what Ned talked about in the paper, a start fee that would hopefully be matched at some level by the racetracks. Again it’s something we just need to keep putting forward, keep tweaking, and keep working on. I’m not sure any one particular formula is going to work everywhere. It may have to be massaged in certain jurisdictions. In some jurisdictions, for instance, it’s illegal to have a purse start fee. That may be a roadblock, but I think we can get around it.

Mr. Bergstein: It’s amazing to me that, given the task you have been assigned, you are the only one here without gray hair.

Dr. Waterman: It’s rapidly coming.

Mr. Bergstein: We are going to turn now to a gentleman who does have gray hair.  Ned, in your paper you wrote that everyone in racing gives a resounding ‘yes’ to that question, but that, after more than thirty years of trying, the effort indicates that we don’t really mean it, we have under funded our efforts, or we don’t know how to do it.  Do you want to enlarge on that thesis within a day’s time?

Mr. Ned Bonnie: Fortunately, my understanding is that members of this group received that paper, so I won’t take the time to do anything other than try to answer quickly the questions you have raised. It is quite clear to me that the time has come for us to quit having voluntary committees and assessments to cure what we all know is a serious problem. We have done it cyclically. I have been a part of virtually every drug and medication committee in the last twenty years, and they all have the same result because the participation and underwriting of the system is voluntary. That hasn’t worked and won’t work, but there are some models that do work. It is those models that do work which I am suggesting to this industry should be put on the front burner, and should have a specific committee to work on the details. Look at other working models that have been successful. I call specific attention to the USEF, the United State Equestrian Federation, which has twenty-seven hundred horse shows, three hundred thousand horses participating. They don’t win a hundred when they win. They might get a piece of silverware and ribbon, and yet those owners are willing to put up seven dollars per show, and they average over fifteen shows a year, to get a fair shake and a level playing field.

So the argument that a little racetrack, a big racetrack, that there should be a graduated fee, you don’t need to over-complicate this. The owners who are paying thousands for horses, be they harness, flat racing horses, whatever, they have a lot more invested. Even the smallest thoroughbred track gives twenty times as much a win as a horse in a horse competition sporting event receives. The owners have shown no reluctance to pay an appropriate fee as long as the system is transparent, where the money is going, and it’s not being wasted. Dr. George Maylin, to my far left, has been running the program efficiently and effectively for the USEF since 1995 and it works. The argument that we have to wait to make everybody happy, it isn’t going to happen folks. There are going to be a few people who aren’t happy, but that does not mean we shouldn’t go forward. The TOBA, KTA, a great many organizations, the HBPA, I think they would support a fee. But let’s get to the table and talk about it next week, next month, rather than next year, because what’s going to happen is that Scot has a three-year window of opportunity with the drug consortium to raise that money, to get it going, and get it in place, so it can do these other jobs. If we don’t put these operations in parallel and run them down the road at the same time, Scot is going to run out of money before we have all these questions answered. It is my firm belief, based on my experience, we have to crank up not just the uniform rules projections and the quality of labs, etc. but we have to have a financing sub-committee, which gets to work next week.

There are a lot of people in this room who will be prepared to help us. The argument always is, “Well somebody else than the owners ought pay for that.”  The tracks today, which you all know, bleed money on-going for drug testing.  Kentucky, for example, racetracks spend $650,000 in drug testing. The owner, for drug testing, specifically doesn’t pay anything. So, when you begin to talk fairness within the industry, everybody needs to put up. I think the owners will gladly put up and that’s the way we ought to be talking about it around a table. I guess it may be a long answer to a short question, but I have that problem.

Mr. Bergstein:  Good answer to a short problem. George, do you agree with that as a scientist?

Dr. George Maylin: Yes. Funding has been a problem since I have been involved, since 1971. But funding is not the only problem. I really do think we have to decide whether we want to use drugs in racing, or we don’t. Partial pregnancy doesn’t work. There has to be a mindset of eliminating drugs, or certainly curtailing their use, or opening the floodgates. Money will help some of that, but there still has to be a philosophy of where we have to go. Bob Huff might give a talk on racing needs more than drugs. Drugs have been with us, starting in the seventies with phenobutal and lasix. I would use lasix as an example of a drug that is now pervasive. If you listen to the proponents, the abuse of drugs, the comment is, we shouldn’t have drugs that effect performance. They should be controllable.

If you look at Lasix, it’s the antithesis of that. Lasix has been shown not to stop bleeding, although it may slow it up. It is documented that Lasix enhances performance. Lasix, if it is not regulated, can interfere with drug testing. Despite that, ninety percent of the Thoroughbred horses, certainly, are using Lasix. So where do we go from here? If that is what racing needs and wants, I think we are in trouble. The number of starts has not increased because of Lasix. The number of EIPH horses has not really been reduced, yet the drug is out there. The vocal advocates claim racing can’t survive without it. It survives in most of the racing jurisdictions in the world except North America. I think we have to come to grips with whether we really want to use drugs in a promiscuous way or not.

Mr. Bergstein:  Is Lasix a perception or a reality with horsemen? Horsemen tell you they absolutely have to have it and it is now pervasive everywhere. It has been a long belief that it is more of a perception. One of the things that is happening to racing, at least in my experience in both harness and Thoroughbred racing, is what I believe Andy Beyer first wrote, what I call the blue balloon theory, which is that if a horse trainer tied a blue balloon to his horses’ tail and won, the next morning the stable area would look like barrage balloons over Normandy on D-day.

Dr. Maylin:  I believe it is mostly perception. It certainly doesn’t stop bleeding. It certainly can affect performance. We are missing the boat on allowing horsemen to run on Lasix whether they are bleeders or not.

Mr. Bergstein:  The Breeder’s Cup had twelve or thirteen starters, two year olds all on Lasix, which to me was startling. Ned you want to comment on that?

Mr. Bonnie:  I don’t have a blue balloon story, but I have an eagle feather story.  My great friend Gary Laven said if eagle feathers made horses run faster and people discovered eagle feathers, in thirty days there wouldn’t be an eagle left in the sky. It is the same thing. I am sitting next to two experienced veterinarians, and they will tell you there is no scientific basis for the prophylactic effects of Lasix on a horse. Yet, it is there. So unless we can convince veterinarians in the industry about Lasix and its non-effects, then I think we need to drive on and deal with bigger issues that are more important. They don’t affect performance. Lasix doesn’t affect performance in the sense that the old drugs, sublamaze, cocaine, morphine, etc do.  I think we have bigger fish to fry in this area than we have Lasix.

Mr. Bergstein:  I’ll buy that. The thing that raises the question is whether Lasix enhances performance or not, whether it masks other substances.

Mr. Bonnie: Well, I believe it does because I support the University of Pennsylvania study, commissioned by the Jockey Club several years ago that says it does. That position was parsed by the veterinary profession.

Yes, I think it does affect performance and I think it is also an avenue which the small percentage of veterinarians and trainers have used to get the vet in the horses stall hours before the race and what goes into that syringe and through that syringe to the horse is a serious problem. Paul Berube has spoken and written on the subject and said if we can keep the veterinarians and the trainers out of the horses stable for twelve to 24 hours before the race we would decrease the drugging problems by 80 percent.

Mr. Bergstein:  That brings up something. I believe you believe in, but a lot of people don’t, and it is certainly a controversial issue, detention barns.

Mr. Bonnie:  Yes, I believe in it. I accept the experience that Paul Berube, Pete Lang and the Standardbred industry, which have worked with horsemen and the racetracks and have figured out how to do that without the turmoil that Thoroughbred trainers predict. I have trained and ridden and owned horses that have gone from track to track steeplechases on successive weekends all over the country. They are all Thoroughbreds. Take a look at England. They don’t have stable areas. They move from meet to meet. The argument that these horses can’t exist in those environments is simply not bore out by the facts. You can take Australia, etc.

Mr. Bergstein:  It is interesting you say that, because my next question to you is, trainers like to say their horses won’t tolerate them. The Standardbred horses tolerate them. Thoroughbred, I know, is a little bit more delicate a breed as far as what they can tolerate. My experience years ago when I was racing secretary, I had trainers that would come in and say no way their horses could race on the front end and then for some reason or another their would be either a driver or trainer change and all of sudden the horse would race on the front end wire to wire. The question that rose in my mind was whether as a lifelong horseman you felt this was a perception and whether the horsemen thought that?

Mr. Bonnie:  Everybody has his own individual experience on it, but I said to a major owner six months ago, “Detention barns need to happen,” and this person said, “What about my washy filly that is going in the stakes?”

 I said, “There is an easy answer for that. You put up four hundred bucks, whatever it would take to have a security person or persons, 24 hours around the clock, eight-hour shifts for 24 hours. You pay the tab, and you can leave your filly in that stall.”

He said, “That’s perfect. I will do that. I will support detention barns if I have an out for the exceptional horse that can’t stand it or I don’t want them to stand it.”

There are answers. We can get people around the table to talk about the cost, the practical aspects of it and the physical imposition on the horse, but let’s get to the table in the next thirty to sixty days and begin talking about it.

They are talking about it in California. There are a number of tracks out there and track representatives and horsemen’s representatives that are taking a serious look at it. We as an industry need to take a serious look at it and rely on the experience of people like Pete Lang, Paul Berube, and others who have watched it and the harness racing industry that has practiced it.

Mr. Bergstein: It is pretty amazing that the California Thoroughbred horsemen, in part, asked for detention barns. I thought it was a huge step forward and an acknowledgement of the lack of level playing field that they would even discuss that.

Scot, you are sitting in the middle of two different versions. I am going to change the subject just slightly, as to what role if any, first as a veterinarian, about pre-race testing?

Dr. Waterman:  For certain substances, pre-race testing is about the only way you are ever going to gain true control, particularly when we talk about the TCO-II testing that pre-race is certainly better than post race. I think, even going beyond just pre-race testing to include out-of-competition testing, where you basically have access to that animal to draw a sample at any point. Certainly from the consortium standpoint we have explored the language that could be included in any type of rules to allow that to take place. There are a lot of logistical issues involved, but I think we need to go beyond pre-race testing and even focus on out-of-competition.

Mr. Bergstein: George?

Dr. Maylin:  If we attempt to control drugs and medication with only drug testing, we will not be successful. There are not enough hours in the day, not enough money in the coffers, to test for all the drugs that are available. We have to use ancillary techniques, if you will, such as detention barns, security guards, other competition testing. We have to do something different than we have done the last thirty years. I was asked if pre-race testing was really what we should be doing in New York and I said I would recommend a detention barn, a receiving barn, rather than pre-race testing.

Pre-race testing will be very, very expensive and to be very candid, testing is not being done now, not because we don’t have tests for drugs, but the racing laboratories don’t have money to conduct the available tests. Tests that are out there right now, for example, there are at least a hundred amino acid tests that should be used in racing. In New York we use fifty. Illinois uses some sixty. But most states use less than a dozen. How can this be? We spend millions of dollars developing these tests and they are not used.

Mr. Bergstein: You have spoken fairly complimentary about the New Jersey system. Your observations on that? 

Dr. Maylin: New Jersey is primarily Standardbred business where there are receiving barns. Certainly they have Thoroughbred racing too. They were the leaders in milkshake testing. They survived some heavy-duty litigation. They did the job correctly. I commend them on the steadfastness of trying to get security in addition to just routine testing.

Mr. Bergstein: Can you tell us briefly in layman’s terms about your test for EPO?

Dr. Maylin:  EPO has been with us since 1985. That is when I first heard about it. It is a very difficult drug to do, as you know, it’s a normal hormone produced by the kidney for hypoxia or lack of oxygen. For whatever reason, the kidney gets a signal to send out a hormone to the bone marrow that will make red blood cells.  This was really going to be the savior for things like sickle cell anemia and kidney disease in human medicine. Of course, it looked so good it became an equine drug.  Even though there is absolutely no reason to think that it is going to do a racehorse any good, because horses dump their spleen and have all the red blood cells they need. If you inject EPO, which is a recombinant human protein, into a horse, it thinks it is a foreign protein or a virus and it develops an antibody. The antibody reacts against the foreign invader, recombinant human EPO, and it also takes out the horses own EPO.  So an antibody is developed.

You can get very severe anemia as a result of it and horses can’t race, don’t race well, or die. We knew there was an antibody being produced and it was a very simple solution of doing the conventional antigen/antibody test, just like the coggins test. The coggins test picks up a virus, while ours picks up the so-called drug EPO. We reasoned that if a horse has an EPO antibody, it’s a sick horse. It may not look sick on its face, but it is taking out its own red blood cells. We, with the help of the Racing and Wagering Board in New York, decided that we would put these horses with a high antibody count on the vet’s list and they would not be allowed to race until such time that they were back to soundness again.

We had, at one track, an incidence of three percent reactivity on this test, and when the test was announced it disappeared. Those horses did not race. We virtually have no EPO responders now in New York. We have a couple of horses, I’d say of fifteen thousand tests since the test went into effect, we have had three horses, one was the same horse twice. So it has been a very effective, very inexpensive test and I recognize that it not a gold standard of identification.  It’s an antibody/antigen test, but I reason that if it is good enough for a coggins test, the same technology is good enough for an EPO test. We are not penalizing the trainer, we are taking the horse out of racing until it returns to a normal status.

Mr. Bergstein:  It solves the trainer responsibility in the case of claimed horses.

Dr. Maylin:  The antibody can last as much as three or four months, so it is quite conceivable that when a horse tests positive there have been two or three trainers involved before the guy who actually did it. So this way the trainer is not hung out to dry.

Mr. Bergstein:  Where are we going to wind up in court with that, Ned?

Mr. Bonnie:  Sure, as long as lawyers need to make a living, you probably will. But our experience, which is fairly extensive, is that you go to court, you will win it. Then the lawyers who read the advantage sheets will say, ‘You can’t win that one. I will take your money.’  But it is ten to one against you and they don’t want to play those odds. So it’s cyclical. You get a new procedure, you get a test in the courthouse or in the administrative area, they lose it, and the issue quiets down for several years until you get some young lawyer that thinks he has a way to do it. He comes up, wants to punch you in the nose with it, but that goes with the territory.  Anytime you have a controlled function in an industry, you are going to get people to test the system on behalf of their client. That doesn’t mean you shouldn’t do it. It simply means you have to be prepared to win it, and so the rule has to be written carefully. You can’t overstate the case. That is what New York, New Jersey did.  They didn’t overstate the case. They said you have a sick horse, there is an aberration here, and until this aberration is resolved, we have the right to put this horse on the list until he returns to normal.  That avoided the contest that lawyers hoped they would have. They dodged the bullet in New York and New Jersey and so far it has worked.

Mr. Bergstein:  Do you have a comment on that?

Dr. Maylin:  Yes, if the choice is lowering the bar and calling a positive or allowing these drugs to continue unabated, EPO is not the only drug. There are many protein-like drugs for which there will probably never be the gold standard mass chromography test.

For example, right now there is an attempt to determine recombinant human EPO from horse EPO. Well gentlemen, ladies, I have to tell you, horse EPO is now in production. How does one determine normal horse EPO from the animals’ own EPO? It would be very, very difficult. I might mention that, in humans, in the last five years they are now finding, even though it’s recombinant human EPO given to humans, humans also develop antibodies for that protein. I would assume the same thing will be done in the horse, horses react similarly, and if that is the case, our EPO test will be the winner and techniques will not be able to deal with the job.

Mr. Bergstein:  I spoke of perception earlier. Is it totally an equal contest between commission lawyers and professional lawyers that are hired to defend? It seems to me that many of the commission lawyers, assistant attorney generals, whatever they may be, are out-gunned and out-manned, and a number of racing officials are intimidated by lawyers in making rulings on medication issues.

Dr. Maylin:  Well, there is no short answer to that. As for the general proposal whether it is criminal, it’s an O.J. Simpson case or it’s a Dancer’s Image case in racing. What you end up with is eager, interested but inexperienced, assistant attorney generals who are assigned to ten administrative agencies of which the racing commission is one, and they often are pitted against experienced trial attorneys who have unlimited funds for defense, etc. and that is unfair, and it is unfair to the industry, etc. The states which have been the most successful are states like, Illinois, who had full-time, experienced attorneys who worked for the racing board and would take anybody on, spit in a Bulldogs’ eye, and that was a fair fight, and the industry and the integrity of the industry was equally balanced. 

But you have to have quality rule writers who are experienced. That is a serious problem for racing if the rules are not properly written, because the best employer in the world can’t defend an improperly drafted rule until the industry looks at itself and determines we have a problem here and decides to cure it.

I see Lonny Powell out there, who has worked very hard in his job with the RCI.  This is a regulators’ issue and the model rules are important and who writes those rules for the RCI. They need to be periodically reviewed and amended to keep up with the times. These are all problems for which we need contemporary solutions. 

Mr. Bergstein: Scot, one of the trickiest aspects of your job is dealing with the views of your constituents on your consortium. Is compromise on the issue of medication from horsemen and management possible in forging a workable medication policy?

Dr. Waterman:  I think so.  I don’t think our group would have held together for the two and half years it has if people didn’t believe that compromise and consensus were attainable. People would have given up long ago if they didn’t feel there was a workable solution there. If you just keep coming to the table willing to keep your ears open and discuss, you can get to a point that everybody is ultimately happy.

Mr. Bergstein:  You have done a brilliant job on it so far. George, what about the problem of chemical compounds?

Dr. Maylin: Compounding pharmacies? You can virtually buy almost any drug that is available in the world now through a compounding pharmacy. These are small, little garage type operations that purchase drugs off shore, bring them into the country, put them into some kind of solution or paste, and sell them as a look-a-like drug.

It used to be that we would say, “Well that drug is not manufactured by Merk anymore so we don’t have to worry too much about it.”  But now those drugs are manufactured by different compounding pharmacies and we can’t just think because the company no longer makes the drug that it is not available.  It is.  It’s a problem. That’s why we need to do more than just drug testing.

This last week, I found, through our informants, two new drugs that are rumored to be used.  These are drugs for which most people in the world don’t have a test for, but apparently they are out there.

Mr. Bergstein: It’s interesting that the Europeans look down their noses at American racing as being chemically controlled and are very proud of their records. But it is also interesting that most of the compound drugs seem to be coming from overseas.  Any observations on that?

Dr. Maylin: Many of the drugs do originate off shore. The reason for that is it is easier to market a drug in Germany or France than it is in this country. Often, even if it is an American company, they will have their European subsidiary develop the drug for use in humans.

Very few drugs are developed for use in horses. Most of them find their way into the racing game as a function of a spin-off of a drug that is in human medicine.

Mr. Bonnie: Stan, can I elaborate a little bit? I agree 100 percent with what George has said, but this industry has never as an industry turned its attention to closing the loop on suppliers and compounders of drugs to trainers and veterinarians, that small percentage that would cheat. We can do that, but we first have to identify that is a problem, which George has eloquently stated is a problem. Then we need to turn our attention to how we solve the problem and then get after it.

Mr. Bergstein: My last question is going to be along those lines. The most progressive jurisdiction in North America is Ontario. Many of what is done approaching the problem there and the severity of penalties they have issued, including the current one that is creating great havoc, of five years and a hundred thousand dollars fine.  They have even had a ten-year suspension. Suspensions by and large in this country have been wrist slaps in most cases and have been successfully defended in many cases. Ontario has put in a rule that if a horse dies on the racetrack, there needs to be a post mortem. From the veterinarian’s point of view, and from your point of view as a racing lawyer, what do you think of that rule?

Mr. Bonnie:  It is an excellent rule. A problem that directs its attention to RCI, and how many states have that rule? We have thirty-seven racing jurisdictions. How many have that rule, and how do they enforce it?

We had a tragic accident at Turfway Park, within the last sixty days. A jockey was killed and the horse was destroyed. He had gotten to the knackers before they got to the horse. Fortunately they were able to, but there was no system, even in a state that requires a post-mortem, there was no system to stop the horse until they got the blood and the urine samples from the horse and sent the samples off.  

Those rules need to be there in order to protect not only the lives of horses and the jockeys, but also the integrity of the system. The rules should be there.

Dr. Waterman:  I can see absolutely no down side whatsoever to having a rule in place like that. There are a number of states out there that have a rule similar to that. Again we go round and round, but it always end up coming back to money.  Typically the reason states either don’t have the rule or don’t enforce the rule that is on the books is because they don’t have funds to actually go through with the post mortem process. The amount of information and type of information that you can learn with a well-run program is absolutely limitless.

Dr. Maylin:  We had the exact program in New York for a number of years, but there were some problems. Money. Think now, if a horse dies at Belmont, it was having a post mortem done in Ithaca, New York, which is 250 miles away. If the horse crashes at 4 o’clock in the afternoon on Saturday, the horse has to be transported to Ithaca for two reasons. A post mortem room is one reason. Then, somebody has to be there in the middle of the night to accept it, and an autopsy has to be conducted. Those are the logistical problems. 

If a racing state does not have a veterinarian college and qualified pathologists, and a number of states do not have qualified autopsy service, it turns out to be a nightmare. So it is a good idea on paper, but it is one of those jobs where the rubber and the pavement get together and it falls apart.

Mr. Bergstein:  You had mentioned, closing this particular portion of the session, the issue of cracking down on veterinarians on the track and suppliers of compounds. One of the most cooperative ventures is the relationship between the TRPB and SIS, using much of the same personnel. In the last two years, three years, they have accomplished a tremendous amount in closing in on some of the suppliers who are on the backstretch and in many cases known to be on the backstretch dealing these illicit deals. 

As the movie actor said, “That’s enough talking about me, let’s talk about you. What do you think of my last picture?” I’m going to ask Tammy Gantt to get up with the microphone and any of you who have questions for Ned or Scot or George, now is your opportunity to ask them.

Mr. Tom Charters, Hambletonian Society: What is the approximate cost per horse if an individual jurisdiction or racetrack wanted to address this in the best way possible? Secondly, are there lab facilities to handle the volume if you were successful in getting a blanket success? And the last thing is, when we are talking about funding why shouldn’t the industry consider funding, in addition to testing, the prosecution of it in the various jurisdictions? You talk about the assistant attorney generals, who usually are talented and very good prosecutors, often they go on to greener pastures or else move to other departments that are much higher profile in the public scene. The one comment I would make, in Europe the reason they have or claim to have better testing, is that the pari-mutuel companies that are centralized fund it all usually. As people have told me, they are the only ones who have any money, so they are the ones that do it.

Dr. Maylin: Take a look at the number of positives reported in Europe and take a look at the type of positives recorded in the US and Canada, and I don’t know who could possibly conclude that the Europeans have a better testing method. Number two, most labs are not equipped to test for this wide range of drugs.

You want to notch it up a bit, so a number of labs will need improvement in their infrastructure. Forget just running the tests. They don’t have the people or the facilities, so I don’t think there will be 22 labs that can all climb the mountain at the same speed. That became very apparent in the NTRA split testing with the Breeders Cup. The graded stakes committee was going to expand testing, and a number of states could not meet the requirements. It’s going to be condescension of perhaps 22 labs into a handful. That would be one way to pool resources and make our money go a little bit further. 

On the other hand, racing is regulated by individual jurisdictions, not by the Jockey Club, not by Scot’s group, it’s by the racing commissions, and they are going to do things their way for the foreseeable future as they have for the last thirty years. I don’t see them changing overnight. Certainly pressure is going to be brought to bear, but snapping your fingers up here won’t get the job done down there.

Mr. Bergstein:  Any other questions?

Mr. Stephen Edwards, Racetracks of Canada: Is Scot’s committee doing any work to look at reciprocal agreements with other associations? For example, the veterinarian association, quite often the veterinarian will refer any disciplinary question to his college, which is the case in Canada. However, as an example, does anyone know of a vet that was requested to do a bleeding test on a horse and came up with the solution the horse did not require lasix? So we have almost 98 percent of the lasix requests granted to the particular horse or trainer. Whenever that issue is addressed, we as an industry have no recourse because the vets hide behind their associations. It might be time, if we want to get serious, to look at collateral agreements with those associations for vets who work in the industry to be subject to more stringent discipline within the industry rather than referring to their associations. We have never gotten anything good for racing out of those professional associations.

Dr. Waterman:  The American Association of Equine Practitioners is actually one of our board members, so we have had conversations with them as to what the best approach would be. The AAEP does have an ethics committee; they typically tend to be non-punitive. One of the things we are exploring as a group is if a vet is found responsible or culpable for the administration of, not a lasix type situation, but certainly like a RCI class one or two drug, that the state vet board should be involved. So you actually put some pressure on the license, not only to be on the racetrack, but to practice and make a living as a vet period. I agree there does need to be a little more pressure placed in certain places.

Mr. Bonnie: When the rubber meets the road, the AAEP, for which I have great respect for their leadership in the educational aspects of veterinarian medicine, but when it comes to control, the bottom line is they say we haven’t got the money to defend, so we don’t go after our vets cause we don’t have the system in place to defend the law suits that we would get when we suspend a vet in the appropriate position. I treat that issue in my white paper and I think Scot’s suggestion for racing is a very good one. In fact, I just wrote a rule for the USEF, which says that all vets who treat horses in USEF competitions must be a member and any vet who dispenses, administers, or prescribes a drug that turns out to be prohibited is subject to disciplinary action. This will get a lot of people’s attention, and we got substantial support for that rule change in the USTF. When you wrap your arms around the entire problem, you begin to see that if we do this with suppliers and compounders, this with the regulatory aspects of it, defining potential penalties for vets or owners or whatever, and we move together on all these issues, we can be effective. But by itself, as George says, you can’t get it just with the lab. As Scot says, you can’t just get it with a uniform rule. You have to talk about standards for the labs, accreditation of labs. It is one thing to have the rule, but if you don’t have the money to, and if you have twenty-two labs, but you can only afford six, wait a minute folks, as an industry we need to attack that problem and come to solutions. We have discussed a lot of different ways to get there this morning, but we need to turn our attention to each one of them and work together to get the results we all want.

Mr. Bergstein:  I can’t think of a better summarization of the problem than what Mr. Bonnie just delivered.

Mr. John Mooney: George, you mentioned that you felt a quarantine barn or receiving barn would probably be more adequate than race testing. Could you make a recommendation on how far out you feel these horses would have to come into quarantine?

Dr. Maylin: It would be ideal to have it twenty-four hours. That would be the ultimate situation, but I believe eight hours would be the next best step and certainly four hours. There are actuations going about the four hour lasix rule.  That is when the drugs are being injected into horses. So we would get rid of that.  Between a four and eight hour period would be a workable time. Most drugs, if they are going to have their maximum effect, are given within eight hours.

Ms. Linda Mills, Florida HBPA: I have a question for the panel. If testing is moved to blood and away from the urine, will that somewhat dissolve the lasix hiding all these illegal drugs?

Dr. Maylin: There are certain drugs that can be detected very readily in blood and some are readily detected in urine, so you need them both. If you are going to do an effective job of blood testing, you need highly sophisticated equipment and it is expensive. Concentrations of drugs in blood are much lower than metabolites are in urine, so you really need both.

Ms. Mills: When the NTRA had their drug task force and did the super testing, over 98 percent of the tests were clean. Is our drug problem as real as the press likes to make it and panels like to talk about, or is it really just a couple of percent that we need to really watch and catch? Certainly, personally as active in the industry with racing horses and active in HPBA, we want anyone who is using medication illegally to be severely punished. However, are we spending our money looking for the rocket fuel that Stan talks about all the time, which may or may not exist, rather than looking for things that can help the health and welfare of the horse?

Dr. Waterman: You have to look for both. The industry always has to assume that the rocket fuel is out there, otherwise I don’t know if we are doing our job. I would like to see this industry be proactive in trying to ferret out these things. They may be there, they may not be there, but we always as an industry have to assume they are there, and give credence to the rumors. Certainly you can spend a lot of money chasing down a lot of different holes, but we have to be proactive as an industry.  At the same time, we have to be cognizant of the fact we have an animal out there that we are charged with taking care of and we have to try to balance those two things as much as we possibly can, given the resources we have.

Mr. David Wilmot, Woodbine Entertainment: Ned, this question is for you as a lawyer. We just had a recent case in the province of Ontario, a high profile case, involving one of harness racing’s top two trainers. We excluded the trainer, we being Woodbine Entertainment Group, from our grounds after a history of ten positives. He had two pending in front of the racing commission, one on appeal from racing commission. You made a comment earlier that you believe that this is a regulatory issue problem for regulators. To what extent do you think racetracks have a right or duty to be involved in protecting the integrity of their product? We made the comment in front of the racing commission that when the customers come into our track and ‘Woodbine’ is above the door, we have two regulators in Canada. Provincial is the racing commission and Federal is the Canadian pari-mutuel agency. When the customers come in the door, 20 percent of those customers have heard or the ORC, one percent has heard of the CPMA, but they have a right when they come to our track to believe the product that they are going to bet on, at Woodbine, that Woodbine is insuring the product is honest.

Mr. Bonnie: Good question, and it is one that all racing jurisdictions need to have a hard look at. The private property rights of racetracks or any private property owner say he can exclude anyone for any reason, other than race, creed, color, etc. 

When the argument has been made, and the lawsuits filed and lost, by those who say that because they have a license to work that has been granted by the state, that is a right and the racetrack can not arbitrarily exclude them. Those cases have been lost except in those situations where the track is owned by the state. New York got into that problem in the famous case. Jacobsen the trainer lost a similar case in New York where they excluded, denied him stalls, etc. Charlie Cella, Gomer Evans in Arkansas, there are cases all over the country.

Generally speaking, the racetracks have the right to exclude for any reason or no reason other than those constitutional guarantees in this country. The thing you don’t want to do as regulators and racetrack owners is to conspire, the regulators with the racetracks, saying, ‘We want to get rid of him but we don’t have enough evidence, so you get him.’ That should not happen in that fashion. You have to operate independently because it is a denial of a person’s due process rights in this country and in Canada it’s fair justice or something like that.

The same general principles apply both in Canada and the US, but the issue is, I think you are doing right, racetracks in Kentucky and other places have done similarly within the last couple of years. I think you are in good shape legally.

Mr. Bergstein: There is certainly no conspiracy in the Canadian case that Mr. Wilmot referred to because Mr. Wilmot had to point out to the racing commission in the hearing that the racing commission had levied a fine of a hundred thousand dollars and a five year suspension and then was taking up the issue of whether the racetrack had the right to exclude the party. The inconsistency was overwhelming.  The racing commission did rule in favor of exclusion and on that note I want to thank Dr. Waterman, Dr. Maylin and Ned Bonnie for a most enlightening session on a very troublesome issue in racing.