Commentary: Fact Checking Opponents Of Safety And Welfare Reform

by | 04.26.2019 | 3:41pm

Most of the modern political discourse (and much of the mainstream news cycle) seems to be dominated by debate. Two sides with two opposite arguments, both hoping to sway their audience into seeing things their way. Usually representatives of each side make bold, occasionally fantastical statements; sometimes they stretch or distort the truth. Their job is to get headlines and to convince you, if not to see things their way, to see the story as being two-sided. If a politician can't get you to agree with them, they at least don't want you siding with their opposition.

This happens in horse racing too, and nowhere is it more obvious than the discussion around welfare and safety reforms. Most people probably didn't pay much attention to a meeting held April 9 in Frankfort, Ky., but it was a classic example of the phenomenon.

The Kentucky legislature's Administrative Regulation Review Subcommittee met that day to review an eight-page agenda stuffed full of regulation updates from a variety of state governing bodies, including a large packet of rule changes approved by the Kentucky Horse Racing Commission. The subcommittee's role was to request the regulatory updates be reworked or move them forward as is.

Two of the most hot-button items on the laundry list of rules from the commission were updated medication regulations and a provision for voiding claims. The medication rules were designed to bring Kentucky into line with ARCI Model Rules which put horses on the veterinarian's list for six months after receiving anabolic steroids, restrict the use of compounded medications to those in compliance with state and federal law, and expand out-of-competition testing.

As often happens when someone tries to improve safety and integrity in horse racing, some racing insiders were upset. Several of them spoke before the subcommittee, raising salient points about unintended consequences of increased regulation – whether this would cut down on business for legitimate compounding pharmacies, whether claiming activity would be negatively impacted by more regulation. But some of them seemed to be there to confuse and mislead the legislators, many of whom likely don't know which side of the horse the jockey swings his leg over.

First, Kentucky Horsemen's Benevolent and Protective executive director Marty Maline spoke out against the voided claim rule (though he was introduced to the committee as opposing the new regulations “in general”).

“As far as the voided claiming rule, it basically offers a warranty to those who engage in predatory claiming practices. This rule exacerbates the growing problem I have outlined. There's an absence of data supporting the purported welfare benefits to the horse of a voided claim,” Maline said.

Except there isn't a total absence of data. Former racing regulator Joe Gorajec has cited numbers out of California which showed a change in running patterns after a voided claim rule was initiated there. Prior to the implementation of the voided claim rule, 15 percent of horses that were claimed in the state never ran again. After the rule was put in place, the number was down to 3.57 percent, which would suggest fewer horses with lingering soundness issues were being led over to the paddock. Besides that, the original RCI rule application cited data showing horses in claiming races were 1.8 times more likely than their counterparts to suffer a fatal injury, demonstrating a vulnerability of the population.

Additionally, the placement of a horse on a veterinarian's list after a race would happen at the direction of official veterinarians, not the claimant. If the horse is euthanized during the race, that happens at the direction of veterinary personnel, not the claimant. If the claimant gets cold feet about dropping a claim form, he's still stuck with his decision unless an official veterinarian identifies an issue, which will likely happen without that veterinarian knowing whether there's a claim in or not.

The day after Maline's testimony in Frankfort, Matt Kordenbrock trainee Mandel would go down in the Keeneland stretch during the eighth race, a claiming event for 4-year-olds and upwards. The tarp would go up, Mandel would be euthanized due to injury, and yet by law, owner Jay F. Young would owe Mandel's owners $25,000 because he and trainer James Cullen dropped a claim on the horse. Young's was one of 16 claims on the horse, who was taking a class drop after a several-week break from his last start at Oaklawn Park.

Though the voided claim rule had been approved by the commission, Young was still legally obligated to write a check because the rule hadn't completed the whole legislative approval process yet. If Maline had gotten his way at the subcommittee meeting, it wouldn't have been up for approval at all. In just 24 hours, Maline's stance didn't seem to have aged so well.

After Maline spoke against the proposed voided claim rule in the legislature, he turned over his seat to critics of new medication rules. Dr. Clara Fenger, veterinarian and founding member of the North American Association of Racetrack Veterinarians, did most of the talking.

One thing Fenger didn't do was stick to the facts. Her misstatements were so numerous in fact, we decided to do a formal fact check.

[Dr. Fenger's statements are in bold, taken from a recording of the hearing.]

“Dr. Clara Fenger. I represent most of the racetrack practitioners in the state of Kentucky and also in a lot of states across North America.

“I'm actively involved in some of the model rules as they're developed at the RCI, playing the same role, sitting here and trying to convince them that there are deficiencies with their regulations.” 

According to NAARV's executive director, Erica Minks, the organization has 300 total members, 18 of which are in Kentucky. It's hard to know how many equine veterinarians limit their practice to racehorses but for reference, the AAEP (American Association of Equine Practitioners) has 249 members in Kentucky. In total, AAEP claims roughly 9,300 members, though those are spread across 61 countries.

Fenger may provide feedback on model rules, but her role with RCI appears no more formalized than yours or mine. She is not an officer, board member, or committee member, which stands to reason because she isn't a racing official. She offers responses as a member of the general public, which is a fine endeavor, but that doesn't make her an engineer of their rules.

“There's a definition of therapeutic anabolic steroids. Now, anabolic steroids is a big touchpoint. Obviously, that's performance-enhancing. Those have been banned for over 10 years in competition or in any proximity to competition in horse racing.”

Tell that to the connections of Masochistic, who in 2017 learned their horse had been disqualified after he tested positive for steroids as runner-up in the Breeders' Cup Sprint. In California, horses receiving anabolics are placed on the veterinarian's list for 60 days after administration (it was 30 days as recently as 2014). In Masochistic's case, the horse had a pretty consistent pattern of running on the week or two after waiting out his 60-day time-out, usually in graded stakes races.

The RCI model rule (which, presumably, Fenger was “actively involved” in developing) states the withdrawal should be at least six months ahead of race time, but as we all know, model rules aren't adopted by all jurisdictions.

“The most commonly-used therapeutic anabolic steroid is stanozolol. It's essentially never used in active racehorses because there's a prohibition on that and there has been for over 10 years.”

The steroid Masochistic received — that would be stanozolol. Since he had multiple treatments, followed by races 60 to 70 days later, it would seem he was “active.”

Is he the only one to be managed this way? Probably not. A map on RMTC's website shows that quite a few states – 12, to be exact – have threshold levels for stanozolol, so it's not completely prohibited. In fact, four states have published rules which do not quantify regulatory testing thresholds for anabolic steroids at all.

“Stanozolol is not androgenic. It's the only available anabolic steroid that will take a very sick horse, which is the main use of it, and help them jumpstart them back into health. It's not androgenic; that means it doesn't make them think they're a stallion and they have to breed everything, including the nurses that are going into the stall to help them recover from injury.”

It's not the only prescription anabolic steroid used to help a horse regain muscle or body mass after a serious disease or medical event. Boldenone can still be compounded legally upon request from a veterinarian and is approved for use in horses in the United States.

Of course, steroids haven't been restricted in racing primarily because they “make [horses] think they're a stallion and they have to breed everything, including the nurses”; they've been restricted because they artificially enhance a horse's ability to add muscle mass which, in a healthy horse in training, is an unfair advantage over others. But anabolic steroids do actually increase aggression, according to respected equine behaviorists and veterinarians, whether they're androgenic or not.

“[Reading from proposed rule language] 'Without prior permission of the commission or its designee, a drug, medication or substance that has never been approved by the United States FDA for use in humans or animals shall not be possessed or used at a location under the jurisdiction of the commission. And the commission shall decide whether or not to grant permission after consultation with the EDRC.'

First of all, more than half the drugs on my truck are not FDA approved and it's not because I'm a rogue practitioner, it's because the FDA has a very limited number of drugs that are approved.”

This seems to depend on your definition of “very limited.” It's not uncommon for a veterinarian to legally use a drug in a horse even though it comes from the human medicine world – but generally, those drugs have been approved by the FDA for use in humans or other animal species. 

The American Association of Equine Practitioners and American Veterinary Medical Association have a list of guidelines available for veterinarians to help them decide when it's ok to use or prescribe non-FDA approved drugs. The risk of not following these guidelines is legal liability if using a non-approved (or compounded) medication results in injury or death to an animal. The FDA, unsurprisingly, has something to say about this practice, too.

More importantly though, the Kentucky Horse Racing Commission said it does not see non-FDA-approved drugs in daily treatment sheets coming from veterinarians. So, which is it – Fenger stretched the truth about how many non-approved medications she carries around, or she isn't reporting their use as required by existing rules?

“Almost all vitamins that are on my truck are not FDA-approved. That's a pretty good example.”

Vitamins aren't considered drugs by the FDA because they are not used to treat a medical condition. They are considered dietary supplements, as are minerals, amino acids, probiotics, and other similar materials. The FDA doesn't determine whether vitamins are effective, but has established good practice guidelines for their production. Similarly, animal feed isn't subject to FDA approval.

“There are only three veterinarians that sit on the EDRC, and if you think about it, who's in the best position to determine what's medically appropriate for your animal? It's the person who actually gets to examine that animal.”

The crux of her allegation here is that the approval of a drug for use at the racetrack by the Equine Drug Research Council (EDRC), a committee of the Kentucky Horse Racing Committee, violates the veterinarian-client-patient relationship because the regulators aren't “treating” the horse. Except commissioners already make decisions about what drugs are approved for use ahead of race time. That's the heart of drug regulation. Asking them to approve or disapprove something for use in competition wouldn't be ground-breaking territory legally. Even if the EDRC didn't approve the use of a given drug, that approval would only apply to horses in active racing and training.

Also, there aren't three veterinarians on the EDRC. Five of the nine members of the EDRC are veterinarians:  Drs. Stuart Brown, Johnny Mac Smith, Andy Roberts, James Morehead, and Mark Cheney.  Thus, veterinarians comprise the majority of votes on this committee.

“This is the most terrifying thing about the whole new regulations they put in. This is an OOCT regulation. The existing OOCT regulation protects the integrity of horse racing and the health of the animal already. It prohibits things such as venom, toxins, blood doping agents. It prevents all of those things from being used. OOCT means horses that are not racing.

“The way that it's written, it includes any KBIF or KTDF registered or eligible horse, which is apparently from birth till death. So from the day they're born until they pass away of old age, this regulation is in effect. It prevents the use of drugs in clinical trials, so a lot of the drugs that are used in horses OOCT during their clinical trials for the purpose of allowing those things to become FDA approved – now they're banned.”

Out-of-competition testing, to most people in the racing regulatory world, refers to tests that are taken between races while a horse is in training (as opposed to post-race tests taken immediately after a horse competes), not horses who are out-of-competition because they are foals or retired from racing. Kentucky's racing commission is charged with protecting the integrity of racing, not the medical treatment of a geriatric horse on someone's farm.

Drug testing is expensive, and it seems unlikely KHRC could afford to start testing retired horses or neonates. If they began sampling OTTBs or research horses, they'd also have no course of action against those horses' owners, who are less likely to have licenses which could be suspended or revoked.

The regulation doesn't prevent clinical trials outside the racetrack setting either, and it stands to reason commissioners would want to discourage experimenting with new, unapproved substances on horses in active competition. For that matter, a trainer probably would (or should) be worried about agreeing to dose his horses with something ahead of a race if it's not FDA-approved – what if it caused a positive drug test without this rule?


I'm not blaming Fenger for her responses; she's doing the job any politician would. After all, as she also told the subcommittee, she's often hired as an expert by trainers fighting penalties for drug positives. She's also a clinical researcher, hired by companies interested in testing out a new supplement or drug. It's good business to be seen out on the front lines, pushing back against new regulations that could result in more penalties for horsemen, advocating for more permissive use of new animal drugs or supplements.

That doesn't mean it's a good look for horse racing. Pushback against regulations aimed at improving integrity and reducing breakdowns doesn't age well to those inside the business. It was just a decade ago when the racing industry began tackling the use of anabolic steroids for performance enhancement, and some drug testing officials thought 120 days was too long a withdrawal time. Today, that reaction is nearly unheard of, especially as microdosing of performance enhancing drugs becomes a greater concern.

This kind of pushback is even more difficult to understand for those who aren't in the racing business – and make no mistake, the general public is watching closely, and not just in California where the spike in fatal injuries at Santa Anita has been in the national media spotlight. Two separate online petitions calling for an end to racing at Santa Anita have nearly 100,000 signatures each, and there are concerns in California that a ballot initiative with a similar goal could become a reality.

As racing's focus has shifted to Kentucky, so too has that of animal rights groups, which have tracked fatalities at Keeneland and recently proposed reforms at Churchill Downs, opining to the press along the way. The legislators Fenger was speaking to earlier this month probably haven't heard of stanozolol, but they probably have heard of animal rights groups, and they probably have heard of Santa Anita's fatality numbers.

The subcommittee ultimately referred the proposed rule changes on, not sending them back to the racing commission for revision. Perhaps they knew a politician when they saw one.

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