The Bank of America Racing Challenge Championships are set to take place at Los Alamitos Race Course in California on October 29. The conditions for the Challenge were issued on October 15, 2015, and included for the first time mandatory hair testing for clenbuterol, beginning with the regional qualifying races and all Championship races.

For the reasons set forth below, the American Quarter Horse Association Executive Committee has decided to amend the Challenge conditions by no longer requiring hair testing in the regional qualifying races, which are to be held in numerous states. However, the hair testing requirement (pre-race testing three weeks prior to race) remains in place for the Challenge Championship races to be held at Los Alamitos.

Any fees for hair testing which have been collected by AQHA from 2016 Challenge participants will be refunded, and there will be no hair test fees owed by participants in the Challenge Championship races.   Sustaining payment amounts will return to $400 for the Juvenile division and $600 for all other divisions. In addition, nominating and sustaining payments may again be made over the phone.

The new requirement for hair testing is part of the AQHA’s ongoing efforts to address animal welfare issues in the American Quarter Horse industry, including the harm caused by the misuse of medication in the racing industry. The first step taken by AQHA in this regard was the implementation of the Multiple Medication Violation System. While the MMVS was recently suspended in order to conduct an evaluation of its overall effectiveness and to develop even better methods of addressing medication misuse, one thing that the MMVS demonstrated is that clenbuterol misuse is a serious problem in the racing industry. Of all the drug violations reported to AQHA by the racetracks and jurisdictions, almost 40 percent involved clenbuterol.

AQHA has not been alone in attempting to address the medication misuse problem in racing. Dr. Edward Allred and his Los Alamitos Race Course have attempted to implement their own “local rules” allowing for hair testing at the track. Unfortunately, it has recently become clear that much more needs to be done at the state level when it comes to implementing hair testing in the industry. At present, there are no state jurisdictions or commissions that specifically allow for hair testing, as opposed to blood and urine only.

At the recent Association of Racing Commissioners International convention held in New Orleans the week of March 23, AQHA was represented by AQHA Past President Dr. Glenn Blodgett and Executive Vice President Craig Huffhines. Dr. Blodgett and VP Huffhines discussed hair testing and medication misuse with the many commissioners and related personnel present at the convention. From these discussions, it was clear that the ARCI members were eager to work with AQHA in finding better methods of addressing medication misuse in the industry in a more comprehensive and effective manner.

Notwithstanding the positive feedback from the ARCI convention, two recent legal events have helped illustrate the difficulties facing AQHA, the ARCI, and various proponents of hair testing and zero tolerance policies on clenbuterol. The first was in California, where an owner sued the California Horse Racing Board and the Los Alamitos Quarter Horse Racing Association, alleging that the CHRB abused its discretion in allowing LARC to implement “local rules” which included hair testing and a zero tolerance on clenbuterol positives. The California Judge in the CHRB case recently issued a preliminary ruling in favor of the owner, based in part on the fact that California statutory law (as opposed to CHRB racing rules) only provides for blood and urine testing. There is no mention of hair testing in the statute and the Judge indicated in his ruling that for the CHRB to allow LARC to do hair testing would be contrary to the statute.

The second legal matter decided recently involves an Attorney General Opinion from Kentucky. In this Opinion the Attorney General stated that the state racing commission did not have the authority to delegate rulemaking authority to a private company. The facts involved were that the Kentucky Racing Commission had allowed Keeneland to write races in which the race-day administration of the regulated medication Lasix was prohibited. The Attorney General’s opinion stated that this was an invalid delegation of administrative authority, based in part on the fact that an existing Kentucky statute specifically allowed for the race-day administration of Lasix.

After the issuance of these rulings out of California and Kentucky, it was clear that were AQHA to move forward with hair testing in the regional races of the Challenge program, it might well put the racing commissions for those states in which regional qualifying races are to be held in a difficult position, given that none of these states currently have laws or rules on the book specifically allowing for hair testing in sanctioned races. And, whether the hair testing issue is one that can be addressed through a commission rule or whether it has to be done legislatively is a question that will have to be answered on a state by state basis. Going forward, AQHA will make every effort to coordinate with the various racing commissions in addressing the hair testing issue in order to establish hair testing as an allowable method of gathering samples for testing throughout the tracks in the United States.

The goal of AQHA in formulating the hair testing requirements for the Challenge has always been to further the use of testing methods which can more effectively identify the misuse of medication in racing and to penalize those who abuse these medications. It is now clear that the best way to move forward with hair testing is to work with each state racing commission and legislature to enact a comprehensive rule making strategy that will allow for hair testing and effectively deal with medication misuse including clenbuterol.

AQHA will continue with its efforts of reaching out to ARCI members and state commissions in order to work with them in finding and developing more comprehensive testing requirements and penalties. The ultimate goal would be the implementation of uniform testing requirements across the country, which will eventually allow for hair testing for all races in the Challenge program.

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