Letter To The Editor: The Elephant In The Room, Total Carbon Dioxide Testing

[Wandering Eyes]

The Horseracing Integrity and Safety Authority (“HISA”) and its prohibited substance enforcement unit, the Horseracing Integrity and Welfare Unit (“HIWU”), are to be commended for withdrawing the TCO2 charges against numerous trainers with respect to a rash of positives in Pennsylvania, which, by inference, they allege are caused by so-called “milkshaking.” “Milkshaking” is the practice of pumping baking soda into a horse's stomach, which is believed to prevent or slow lactic acid buildup in horses and allow them to run faster and for longer periods. The numerous positives coming out of the Pennsylvania Equine Toxicology and Research Laboratory seemed to make little sense, as more and more Pennsylvania horsemen were being charged, yet very few positives for the same violation were found elsewhere, nor had there been a TCO2 violation in Pennsylvania for several years before the recent rash of alleged violations.

While the problem with the Pennsylvania lab is apparently resolved, little attention has been given to the “elephant in the room”–the outrageously unfair rule that governs TCO2 testing. While virtually all equine drug testing has procedures in place for split sample testing after a positive test result, with the second sample going to a different lab, no such procedures exist for TCO2 testing.

Under HISA rule 5430(l), TCO2 testing may be conducted not only post-race but also pre-race. Horsemen have to pay the cost of obtaining a so-called duplicate test. Horsemen may only request the duplicate sample prior to the taking of the official sample. This means horsemen cannot wait to ascertain whether the official sample yields a result higher than the permitted threshold or whether their horse won, hit the board, or earned a substantial purse before making the request. Not only do horsemen have to pay for a second sample before they know if it is necessary, the sample they are paying to obtain will not show whether the problem lies with the sample or with the lab conducting the testing because the duplicate sample is transmitted to the same lab as the official sample.

While HISA may argue that this rule makes sense because of the degradation of a TCO2 sample within a few days and that TCO2 test results can take weeks to be received, the rule is simply unfair and, in my opinion will not withstand due process analysis.

Why not change the rule to provide for two samples to be taken every time a sample is collected? Why not provide that horsemen pay for the second test only when there is a positive result? Why not provide that the duplicate sample be forwarded to different laboratories for analysis? Why not arrange for 48-hour test results?

Another issue is that not all higher-than-permitted carbon dioxide results are caused by milkshaking. Lasix, medications, supplements, dehydration, illness, feed, the environment, the horse's physiology and other random factors may cause a high result. While TCO2 testing is necessary, the rule change is required to ensure the fairness that split-sample testing provides for the testing of other prohibited substances.

Amendments to the rules should be undertaken in short order by HISA and the Federal Trade Commission before more honest and decent horsemen have their lives disrupted, get their names blasted over the internet being labeled as crooks, lose purse money, lose owners and incur unnecessary suspensions and counsel fees.

–Richard J. Hackerman, P.C. is an attorney based in Baltimore, Maryland.

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