Interstate Horseracing Improvement Act of 2011

Senator Tom Udall (D-NM) and Congressman Ed Whitfield (R-KY) have introduced the Interstate Horseracing Improvement Act of 2011 in both the Senate (S.886) and House (H.R. 1733).  Its expressed purpose is “to prohibit the use of performance-enhancing drugs in horseracing.” 

The bill adds a new section to the Interstate Horseracing Act (IHA) that would ban performance-enhancing drugs in racing, require testing of horses, and enact minimum penalties for violations.  By including the bill within the IHA, it applies the new prohibitions and requirements to any race subject to an interstate wager under the provisions of the IHA.  In effect, this means nearly every race in the country. 

The Bill

As do most bills, this one begins with what are termed “findings,” which are in effect a statement by Congress as to why the legislation is necessary.  Among the findings are:

The use of performance-enhancing drugs in horseracing is widespread in the United States, where no uniform regulations exist with respect to the use of, and testing for performance-enhancing drugs in interstate horseracing.

The use of performance-enhancing drugs is illegal in the United States in every other sport other than horseracing.

The bill defines “performance-enhancing drugs” as:

Any substance capable of affecting the performance of a horse at any time by acting on the nervous system, cardiovascular system, respiratory system, digestive system, reproductive system, musculoskeletal system, blood system, immune system (other than licensed vaccines against infectious agents), or endocrine system of the horse.

All substances listed in the Alphabetized Listing of Drugs in the January 2010 revision of the ARCI publication entitled Uniform Classification Guidelines for Foreign Substances are also defined as performance-enhancing drugs.

Prohibitions

The bill includes prohibitions on both individuals and race tracks.  It prohibits a person (1) to enter a horse in a race subject to an interstate wager if the person knows the horse is under the influence of a performance-enhancing drug; or (2) to knowingly provide a horse with a performance-enhancing drug if the horse will compete under the influence of the drug.

The bill prohibits a race track from conducting a race subject to an interstate off-track wager unless: (1) the track has a policy in place that bans a person from providing a horse with a performance-enhancing drug if the horse will race under its influence; (2) the track bans the racing of a horse under the influence of a performance-enhancing drug; (3) the track requires an accredited testing laboratory to test the winner of each race and another horse; and (4) the track requires the laboratory to report the test results to the Federal Trade Commission (FTC) and the state racing commission.

An independent laboratory will be required to test for performance-enhancing drugs.  Any such lab must be accredited, meet ISO standards, and include testing for performance-enhancing drugs within its accreditation.

Penalties

The legislation calls for civil penalties and suspensions for any person who violates the Act.  The penalties are: (1) a fine of at least $5,000 and a 180 day suspension for the first violation; (2) a fine of least $20,000 and one year for a second; and (3) a fine of at least $50,000 and permanent suspension for a third.

During any suspension period, the suspended person may not be at a racetrack offering interstate wagering, place a wager on a race offered interstate, or enter a horse in any race on which interstate wagers are offered.

A horse under the influence of a performance-enhancing drug may also be suspended at least 180 days for a first violation; at least one year for a second; and at least two years for a third. 

Violations in different states will be counted toward the total violations accrued.

Enforcement by FTC and State Racing Commissions

The FTC will write the new federal rules to enforce the Act.  States are allowed to adopt rules and enforce any state provisions that are stricter than the rules under the new Act.

The FTC will enforce the new provisions, but may enter into an agreement with a state racing commission to allow the commission to enforce it.  Although fines will be paid to the FTC, state commissions may use such fines to assist in paying for enforcement.  The FTC may also step in and enforce the new provisions if a racing commission does not, or if the FTC does not consider the commission’s enforcement adequate.  If the FTC enforces the provisions it will treat any violation just like an unfair or deceptive trade practice.

Private Right of Action

The legislation would also give any individual the right to bring a civil action against an owner, trainer or race track to enforce the new requirements if the person “has reason to believe that an interest of that person is threatened or adversely affected” by the activities of that person in violation of the Act.  This is a broad net and appears to include individuals who are not owners or trainers.  Potential relief includes injunction, damages, and restitution, including reasonable attorney’s fees.

Congressional Action

Senator Udall’s bill (S. 886) was referred to the Committee on Commerce, Science and Transportation, on which he sits.

Congressman Whitfield’s bill (H.R. 1733) has three cosponsors: Representatives Ben Chandler (D-KY), Jan Schakowsky (D-IL) and Joe Pitts (R-PA).  It was referred to the House Committee on Energy and Commerce, on which all sit, except Mr. Chandler.

AHC Position

The AHC is monitoring this bill to ensure that there is no Congressional action taken that would affect racing adversely.