03/05/2014 11:39AM

New York considering split clenbuterol rules for Thoroughbreds, Standardbreds


The New York Gaming Commission is considering passing separate rules for Thoroughbreds and Standardbreds regulating the use of the bronchial dilator clenbuterol, according to racing officials, clearing the way for the adoption of an overall model medication rule for Thoroughbreds but raising questions about the ability of regulators to enforce the clenbuterol restrictions.

If the split rule is approved, which could come at the gambling commission’s March 12 meeting, it will remain a rule violation to administer clenbuterol to a Thoroughbred within 14 days of a race. In-training Standardbreds, however, will be allowed to be administered the drug up to 96 hours prior to a race.

The split rule is being considered after harness racing interests in New York – and throughout the country – have begun to aggressively push back against a suite of new rules developed by the Racing Medication and Testing Consortium that are designed to limit the administration of medications and align racing rules from state to state. Harness interests in New York appeared before the gambling commission at a hearing on Jan. 21 to argue that the 14-day restriction on clenbuterol use failed to recognize the differences in training and racing between Thoroughbreds and Standardbreds.

The debate over the clenbuterol rules have also underlined the widening rift between the Standardbred and Thoroughbred industries over medication reform, an effort that is considered critical by many Thoroughbred racing organizations to address public-perception concerns about the sport. The rift opened up last year, when the Standardbred industry pulled its funding from the RMTC and its representative on the board resigned, claiming that the consortium, which comprises representatives of a wide cross-section of racing organizations, was ignoring the Standardbred industry’s concerns and relying on bad science. The RMTC has strenuously objected to those characterizations.

Thoroughbred interests in New York have decided not to object to a split rule in the state, in the interest of seeing the more restrictive rules passed to unify the state’s Thoroughbred regulations with a handful of neighboring states that have already passed the uniform rules, according to Rick Violette, the president of the New York Thoroughbred Horsemen’s Association. The horsemen had hoped that regulators would have approved the rules by the end of 2013, but the objections by Standardbred interests have held up the process.

Lee Park, a spokesman for the gambling commission, would not comment this week on whether the commission is weighing a split rule.
“The commission fully expects to consider and possibly adjudicate a rule at its next meeting,” Park said.

Thoroughbred interests moved to restrict the use of clenbuterol several years ago on the basis of widespread concerns that the drug was being abused for its unusual ability to build muscle mass when used regularly. The 14-day restriction would mitigate the drug’s so-called “anabolic effect” because horsemen would be unable to use the drug consistently if they maintained a regular racing schedule for the horse. Anabolic steroids were banned in most U.S. racing states in 2009, and many regulators maintain that horsemen switched to clenbuterol as an anabolic substitute following the prohibition.

Harness horsemen have argued that the 14-day restriction would act as a de facto ban on the use of the drug because most Standardbreds race every seven days. They also have said that there is no evidence that Standardbred horsemen are abusing the drug, and they have cast doubt on the scientific studies purporting to show an anabolic effect.

“We cannot use clenbuterol in sufficient amounts to get that suspected – and I emphasize, suspected – effect,” said Joseph Faraldo, the president of the Standardbred Owners of New York, which has pressed for the split rule. “It’s impossible, really. This is how we use it. After a race, a horse will come out with a bunch of dust and other junk in its lungs, and so we’ll use a little bit for two days, and then we stop at 96 hours. It’s a useful drug for that.”

If the split rule is passed, New York would be the first jurisdiction in which Standardbred interests have succeeded in arguing for a different regulation than the model rule. Late last year, the Kentucky Horse Racing Commission passed the model rules for both breeds over the objections of Standardbred interests, but the state’s Thoroughbred industry is much larger and more politically powerful than the state’s relatively small harness industry. New York has eight harness tracks, and all operate casinos that provide hundreds of millions of dollars in purse subsidies each year to horsemen.

Two other powerful harness racing states, Pennsylvania and Ohio, are also expected to consider split rules for Thoroughbreds and Standardbreds, according to officials. Like New York, both states have more harness tracks than Thoroughbred tracks, and all are supported or will soon be supported by slot-machine subsidies.

While New York’s Thoroughbred horsemen do not plan to make an issue out of the split rule, Violette said that a split rule raises some legal concerns because a Thoroughbred trainer whose horse tests positive for a trace amount of the drug could argue on appeal that the rule is discriminatory because a harness horsemen would not be held to the same standard. He cited an opinion released in Kentucky several years ago in which a judge ruled that a veterinarian found with snake venom, a painkiller that can block nerves, should not have been penalized because the state’s regulations permitted the limited use of snake venom for harness horses.

“I think we’re getting into a little bit of a dangerous legal territory here,” Violette said.

Susan Speckert, the legal counsel for the Kentucky Racing Commission, said that the snake-venom ruling had no bearing on the state’s decision to deny the Standardbred industry’s objections to the model rules. The ruling, Speckert said, was issued as “unpublished, applied case law” and would therefore not be used as a precedent for other cases. But more importantly, the state pressed for a single set of rules for both breeds because of the RMTC’s contention that there is no physiological difference between the two breeds in regard to the impact of medications, Speckert said.

However, if there is truly no difference between the two breeds, as the RMTC argues, that would seem to open the way to a trainer making the argument that a split rule is prejudicial. The split rule treats a trainer of one breed differently, even if the breeds aren’t fundamentally different.

“Legally, yes, I think that’s an interesting option,” Speckert said.

Faraldo, an attorney who has argued cases before the U.S. Supreme Court, scoffed at the notion that the split rule is prejudicial.

“I don’t think anyone could succeed on either side, whether you’re coming at it from the Thoroughbred or Standardbred side, because it’s a rational rule,” Faraldo said. “It’s not arbitrary or capricious. It recognizes that there are differences between the breeds, and those differences are in the training regimens and in how they are raced.”

Yet the Standardbred rule being considered in New York will have an exception. Any Standardbred that has not raced in 30 days and needs to qualify for racing will not be allowed to be administered clenbuterol 14 days before the qualifying race. After that race, the 96-hour rule kicks in.