The National Horsemen's Benevolent & Protective Association (HBPA) filed a Petition for Rulemaking under the Horseracing Integrity and Safety Act (HISA) on Monday, requesting the Federal Trade Commission (FTC) to create no-effect thresholds. A no-effect threshold, also known as a no-effect screening limit or no-effect cutoff, is a laboratory testing detection level below which no owner or trainer will be punished for innocent and pharmacologically irrelevant concentrations of foreign substances that have no effect on a horse, according to the HBPA.
Under the petition, the no-effect thresholds would be required to be used by the HISA Authority's enforcement arm, the Horseracing Integrity & Welfare Unit (HIWU).
“The problem of HIWU unfairly prosecuting blameless horsemen for irrelevant findings as low as one trillionth of a gram per milliliter is plaguing the horse-racing industry,” reads the release from the HBPA. “The National HBPA is calling on the FTC to end this injustice.”
In a written statement, Eric Hamelback, CEO of the National HBPA, said, “The National HBPA is committed to doing everything it can to protect horsemen. We need to reshape the HIWU system into one that does not punish blameless trainers and their owners for barely detectible levels of foreign substances. The current process is harming the horseracing industry by publicly shaming as dopers good men and women with reputations for integrity in the sport. Worst of all, these 'adverse' analytical findings are doing nothing to protect the safety of horses. We hope that with this positive change, HISA will be able to focus on regulations that actually catch those they proclaim to be cheating rather than wasting valuable time and resources adjudicating irrelevant concentration findings.”
A HISA spokesman responded to the filing in an email. “The HBPA's claims that horsemen are being unjustly penalized for positive tests they couldn't have avoided and which have `no effect' on the horse, are untrue and scientifically inaccurate. HISA has published Minimum Reporting Levels on its website for certain Prohibited Substances, including methamphetamine and metformin, which establish a harmonized reporting level above which the test is considered positive. HISA also has a comprehensive contamination policy which accounts for environmental contamination and a new policy for treating human drugs of abuse more leniently to account for the possibility of inadvertent human transfer. Our adjudication process is conducted by neutral third parties and there are numerous opportunities for participants with positive tests to present their case. Finally, the HBPA's suggested approach is clearly prohibited under the Horseracing Integrity and Safety Act.”
After the Supreme Court denied cert in the 6th Circuit appeal and HISA's Chairman of the Board Charles Scheeler called for unity, it is unfortunate that the HBPA has chosen to double-down on its misinformation campaign. This is particularly disappointing given that the vast majority of horsemen are working cooperatively alongside HISA to make the sport safer and fairer, as evidenced by the significant reduction in equine fatalities under HISA to date and especially since the launch of the ADMC program.
In the petition, the HBPA points out that other federal agencies commonly utilize no-effect thresholds: “For example, the Department of Transportation, in its drug testing of commercial airline pilots, … allows 100 nanograms per milliliter of oxycodone. By contrast, HIWU publishes a zero-tolerance oxycodone policy.” The petition also says, “the EPA measures foreign substances in drinking water in micrograms per milliliter, or one millionth of a gram per milliliter. That is one million times larger than the picogram per milliliter level for which some HIWU laboratories are testing. The EPA recognizes that reporting picogram levels of foreign substances in American drinking water would needlessly alarm the public of the presence of foreign substances that the EPA knows have no effect.”
Dr. Doug Daniels, President of the National HBPA, wrote, “Scientists know that infinitesimally small amounts of foreign substances are present throughout our world. In equines, they usually come from uncontrollable environmental transfers and do not affect the performance of the horse. The FTC must follow the science and adopt no-effect thresholds.”
The petition cites several horsemen who were penalized under the existing zero-tolerance policy over commonly used human medications, such as Mike Lauer, who had a horse test positive for Metformin. “Mike Lauer is a 72-year-old trainer with five decades of licensure, who spent almost $50,000 and five months trying to clear his name from HIWU allegations that cost him even more in lost clients,” says the HBPA release. “Ultimately, HIWU concluded that a groom who had ingested his prescription diabetes medication Metformin at lunch then unintentionally contaminated Lauer's horse by touching its mouth while fitting it with a bit and bridle. Yet HIWU still suspended Lauer for 75 days and fined him $2,600.”
The petition continues, “These horror stories are pushing other trainers, like Rusty Arnold, to simply admit to violations they did not commit just to get HIWU off their back.” In March, Arnold accepted a seven-day suspension, a $1,000 fine, and a lost a $40,000 purse after his horse Figgy (Candy Ride) tested positive for a metabolite of Tramadol.
“Arnold's unjust punishment and widely disseminated statement urging horsemen to `speak up together to regulators–loudly' caused a furor in the industry,” the HBPA said. “The National HBPA gathered and included in the petition signatures from over 750 horsemen, decrying HIWU's unfair treatment of Arnold and demanding no-effect thresholds.”
Arnold praised the HBPA's filing of the petition, saying, “Horses are grazing animals. They eat dirt. They love to lick smelly wet spots in stalls. They eat manure. They lick the walls of ship-in stalls. It is unreasonable to think we can control this. I applaud the National HBPA for asking the FTC to bring some common sense and fairness to HIWU's system of gotcha chemistry.”
The petition goes on to criticize HISA for “violating the law by not publishing no-effect thresholds for the overwhelming majority of the substances on its list of permitted substances,” and asks the FTC to “issue allowable limits itself to bring the HISA Authority's list into compliance with the Act.”
Peter Ecabert, the HBPA's general counsel of the National HBPA, said, “By not issuing allowable limits, the HISA Authority is flouting the law. The National HBPA calls upon the FTC to do its job to correct this violation.”
The HISA spokesman pointed out that Congress mandated that the baseline anti-doping and medication control rules include “[t]he lists of permitted and prohibited substances (including drugs, medications, and naturally occurring substances and synthetically occurring substances) in effect for the International Federation of Horseracing Authorities, including the International Federation of Horseracing Authorities International Screening Limits for urine, dated May 2019, and the International Federation of Horseracing Authorities International Screening Limits for plasma, dated May 2019.” Moreover, they said, because the IFHA limits do not use so-called `no effects-thresholds,' the use of them would be in violation of the Horseracing Integrity and Safety Act.
Not a subscriber? Click here to sign up for the daily PDF or alerts.
