Kentucky Panel Approves New Medication Rules

New regulations would allow owner to void claim of horse that tested positive.

An advisory panel to the Kentucky Horse Racing Commission has given final approval to changes in disciplinary measures and penalties for medication violations that include permitting an owner to void the claim of a horse that tested positive in the race out of which it was claimed.

The Jan. 18 action by the Equine Drug Research Council came during a two-hour meeting that was punctuated by a discussion of whether the KHRC, which must now consider the recommended regulations, wants to take action that might be perceived as being tougher than other jurisdictions while the state is competing for horses and owners. Most of the proposed regulatory changes are designed to comply with model rules recommended by the Association of Racing Commissioners International.

The regulation proposed by the EDRC would allow the new owner to void the claim of a horse that tested positive for Class A, B, or C substances in the race out of which it was claimed.

The connections of the horse testing positive when it was claimed would face the usual penalties but would also be responsible for the expenses paid by the new owner—including transportation, board, training, and testing—from the time of the race until the positive test was confirmed and the owner elected to return the horse.

As part of the process, the connections entering a claim for a horse would be permitted to check a box stipulating they want the horse tested following the race for any prohibited substances, should the horse not be among those designated by stewards for post-race testing.

While the claiming rule was the most substantive of the regulations approved by the panel, there was considerable discussion around a recommendation, eventually stripped from the final draft of the regulations, that would have placed strict penalties against the owner of any horse testing positive three times for excessive amounts of Phenylbutazone in its system on race days.

The first part of the regulation calls for a minimum fine of $1,000 (unless stewards determine there were mitigating circumstances) to a licensee for a first offense and a $1,500 fine and 15-day suspension, with disqualification and forfeiture of purse money, for a second offense within a 365-day period.

For a second offense with the same horse, however, the regulation calls for a minimum fine of $2,500 and a 30-day suspension, as well as the disqualification and forfeiture of purse and the horse being placed on the veterinarian’s list for 45 days.

For a third offense within 365 days of the first offense, the licensee faces a minimum $2,500 fine, forfeiture of purse money and disqualification, and a requirement that the horse must be examined by a commission veterinarian before being permitted to be entered to race.

In addition, however, a third offense of the Bute regulation for the same horse as the first two offenses would have resulted in the animal being placed on the vet’s list for 60 days and a minimum $5,000 fine being assessed the owner of that horse.

David Switzer, executive director of the Kentucky Thoroughbred Association, questioned why Kentucky would be implementing such a tough rule that could potentially penalize owners at a time when the state is competing with other states for owners and horses.

“We are behind the eight-ball with New York as far as purse money is concerned and this is going to give another reason for an owner to not race in this jurisdiction” unless other states adopt similar regulations," Switzer said. “If New York passes it, I don’t have a problem. But don’t make Kentucky pass it first. This is going to give an owner another reason not to race here.”

Art Zubrod, a member of the EDRC, said he could not “justify protecting an owner who believes it’s OK to have three positives” of Bute.

Zubrod said that while drafting tough medication rules could preclude some owners and trainers from wanting to race in Kentucky, he said others might want to be involved in a state that has shown a leadership role in having strict medication rules and penalties.

“I am naive enough to think there are owners out there who want to come here because we have these types of rules,” Zubrod said.

Dr. Mary Scollay, equine medical director with the KHRC, said that during her 3 ½ years’ experience working with the Kentucky commission there had not been any horse that would have had run afoul of the proposed regulation by having three Bute positives.

Considering that, some opined that if it is unlikely that the penalty would ever be invoked, there is no reason to have it in the regulations.

“I have a problem with this, especially since it is going to be available to anybody who wants to look at this and they are going to construe this however they want,” said Dr. Jerry Yon, EDRC chairman.

He noted that some of his concerns with the proposed rule would be how to deal with partnerships and multiple ownerships when enforcing the rule. “I think the drug rules are really good and I would put those up against anybody’s in the U.S. Somebody is going to take this and blow it way out of proportion and tell everybody how bad Kentucky is.

"That’s what I’m afraid of, is that this one issue is going to topple all the great work that we have done,” Yon added.

Ned Bonnie, a KHRC member and chair of the commission’s rules committee that worked with the EDRC in drafting the regulatory changes, said there is the potential that owners would not even be aware that they are facing the fine because they would not know that one of their horses already had two positives.

He said one problem is that owners are not given enough information from racing commissions about the rules they are expected to adhere to and how it affects their racing programs. He suggested the EDRC work with the KHRC on improving such lines of communications.

At the end of the discussion, the EDRC decided to further review the part of the proposed regulation providing for the fine against the owner and to solicit comments from various constituencies.