I. Introduction
One of the biggest controversies in horseracing is the use of medication in racing. Despite being heavily regulated especially in California, medication in racing gives the sport an aura of dishonesty. The issue comes to the forefront every few years such as in 1995, Belmont Park, a racetrack on Long Island, NY, was to host the Breeders' Cup, the year-end horse racing championship day. Unlike previous hosts, New York state did not allow Lasix, an anti-bleeding medication on race-day. Proposals for a uniform drug policy were bandied about, however it never went farther than the editorials of the Daily Racing Form, horse racing's daily paper. Concerns regarding the number of top contenders who would not run because of their reliance on Lasix and pressure from horsemen ultimately led to the state legalizing its use on race-day.

California has been on the forefront of the controversy, using the latest drug testing methods to determine any traces of a variety of legal and illegal drugs. From Scopolamine, Caffeine, Morphine and the much publicised, Clenbuterol, racing jurisdictions are at a loss how to treat this drug in light of FDA approval. In March 1998, the FDA (Food & Drug Administration) approved the use of Clenbuterol in horses after much research and debate. Horsemen were delighted to finally have access to the drug (it had been legal in Canada and Mexico since 1984) which helped with respiratory problems in horses.

Around the time of the approval, California had just begun to prosecute the trial of several prominent trainers whose horses had tested positive to the drug. The trainers were adamant in light of the approval, how could they be suspended when the drug was no longer illegal in the United States? With studies showing Clenbuterol may require a longer withdrawal time than the recommended 72 hours, can charges be pressed even if trainers did administrate the drug as instructed by said rules?

Several trainers have settled out of court, but the most renowned case involved California Horse of the Year, Free House. The roan colt had won the Bel Air Handicap by several lengths in 1998, but later tested positive for Clenbuterol. Trainer Paco Gonzalez and owners/breeders, John Toffan and Trudy McCaffery, have been fighting this case ever since. After several hearings with the CHRB (California Horse Racing Board), the Office of Administrative Hearings and judges, irregularities were found in the Free House case, making it even more complicated than it already was. People now say they cannot be sure the samples were taken in front of the connections, the laboratories used to test the split samples were not on the Board approved list, and were using different methods from the original test (Christine). The case now two and half years old has yet to be resolved, with two administrative judges recommending in a non-binding decisions the CHRB dismiss the charges.

In April 2000, Judge Ralph B. Dash wrote in his decision such levels found in Free House could not have affected the horse's performance, there was no indication of anybody in the trainer's barn had given the drug to Free House and the judge appeared to indicate trainer responsibility has to take into account the levels found despite laws putting an all or nothing liability for drugs (CTBA). The CHRB in turn, sent it back to the Office of Administrative Hearings to discover more evidence on whether the horses actually tested positive for Clenbuterol, if the trainers/owners administrate the drug, had the opportunity to test the split sample and if the laboratory testing the samples were Board approved. The hearing has yet to be scheduled and after the decision is finally settled, the owners of Free House have stated they would appeal the forfeiture of the purse their horse won. Despite the unresolved bigger question, the CHRB has been able to continue ruling on Clenbuterol cases because of the plethora of statutes and rules which regulate horse racing in California.

II. Discussion
To understand California's laws on Clenbuterol or any medication, one has to exam several different, yet intersecting statutes and rules which regulate the sport in the state.

Horse racing regulation is authorized by several sections of the California Business and Professional Codes. The first, 19401 states "The intent of this chapter is to allow parimutuel wagering on horse races, while: a. Assuring protection of the public [. . .] e. Providing uniformity of regulation for each type of horse racing. 19413.1 stipulates "‘Prohibited drug substance' is any drug substance, medication, or chemical, whether natural or synthetic, or a metabolite or analogue thereof, foreign to the horse, whose use is not expressly authorized by the board [California Horse Racing Board]. This includes, but not limited to, any substance determined to be a stimulant, depressant, local anaesthetic, or narcotic, or any drug, regardless of how harmless or innocuous it might otherwise be, which could interfere with the detection of any prohibited drug. ‘Prohibited drug substance' includes any substance not approved for use in the United States, including, but not limited to, any drug or substance available in a country outside the United States, any controlled substance listed in Part 1308 of Title 21 of the code of Federal Regulations, and any substance the approval of which is withdrawn." This section was the one cited in Clenbuterol lawsuits prior to March 1998 and such cases were for the most part not challenged.

The authorization to regulate medication usage in horse racing by the California Horse Racing Board (CHRB) are stated in the California Business and Professional Codes Sections 19580-19583. 19580 explains how and why there are regulations on medication in the sport. It stated in part  "to preserve and enhance the integrity of horseracing in the state." Questions on the mandatory testing is also answered in 19580 (b) that "it is the intent of the Legislature that the board, in its testing efforts to determine illegal or excessive use of substances, recognize the greater importance of conducting complete and thorough testing of a lesser number of samples in preference to conducting less thorough testing on a greater number of samples." Section 19582 (a) gives the CHRB the guidelines for punishment for violations of medication rules based on the class of the drug, whether the person had previous violations and what their record was over their lifetime. Subsection (b) sets the guidelines for punishment of violators including fines of no more than ten thousand dollars ($10,000), and disqualification from purses.

The CHRB further clarifies the California Business and Professional Codes with their own rules. CHRB rule 1843 expands on California Business and Professional Code section 19580 adding "these rules [are] to protect the integrity of horse racing, to guard the health of the horse, and to safeguard the interests of the public and the racing participants through the prohibition or control of all drugs, medications and drug substances foreign to the horse." Subsection (d) also states any prohibited substances found in testing, the responsibility falls on the trainer and is "prima facie evidence that the drug substance has been administered to the horse." CHRB Rule 1843.1 repeats almost in verbatim California Business and Professional Code section 19413.1 on the definition of a prohibited drug.

CHRB rule 1843.2 classifies drug substances into classes, which determine the severity of punishment for violation of regulations. Clenbuterol was a Class 1 drug before March 1998 as it was not approved by the Food and Drug Administration (FDA) for use or sale in the United States. After its approval by the FDA, Clenbuterol was moveddown to a Class 3 drug, which classifies it with other drugs that affect the cardiovascular, respiratory and/or the nervous systems. The move to Class 3, can result in less severe penalties if a horse is found with higher than allowed levels. However this change only allows it for training use and is not approved for race-day use.

Testing for drugs are regulated by CHRB rule 1859 which instructs blood and urine be taken by an official veterinarian with the trainer of the horse witnessing the taking of the samples. Samples are then sent to an official laboratory by the veterinarian. The laboratory has five days to notify the Board of their findings. California, like many states allow for split sample testing, through CHRB rule 1859.25. The rule allows the CHRB to keep some of the samples for later testing if requested by the connections of the horse in question. The trainer has 72 hours after notification of the finding of prohibited drugs to request a split sample test through an independent Board approved laboratory. It requires filing a CHRB-56 form requesting a split sample and the owner or trainer are responsible for all charges for testing the sample. If the CHRB receives no verification of payment after five days of the filing of CHRB-56, they will not ship the sample to the laboratory. If the Independent laboratory finds no prohibited drugs, the CHRB assumes the official results are wrong. However, if the independent laboratory confirms findings, disqualification will occur according to CHRB rule 1859.5. If the drug falls within classes 1-3, the horse is disqualified and considered unplaced in the race. Purse is also forfeited and redistributed.

CHRB rule 1887 clarifies responsibility stated earlier in CHRB rule 1843, stating the trainer has the ultimate responsibility on the condition of the horse. Punishment may include fines, suspension of trainer's license or taking away their license to train or even ruled off the racetrack. The punishments can also apply to owners and other personnel responsible for the care of the horse.  However, the CHRB has to let the trainer know of a positive result within 18 days or the trainer is not held responsible unless there was overwhelming evidence the trainer did give the substance to the horse.

A majority of the recent cases in California related to Clenbuterol were brought up in court in regard to purse forfeiture. The courts have upheld a majority of the cases because of the regulations and rules in place.

In the case of William Mezo, Alanna Pena & Gregg Pistochini vs. CHRB OAH # N1999070483, N1999070485 and N199907486 (1999), Mezo, Pena and Pistochini were owners of standardbreds who raced at the Cal Expo Harness meet in May 1998 and all tested positive for the prohibited drug Clenbuterol. The owners asked for a split sample test and all returned positive findings. Thus, the CHRB issued rulings for disqualification of the horses, purse forfeiture and redistribution of the purses. The owners filed an appeal based on CHRB rule 1761, which requires an appeal to be filed within 72 hours of the rulings. The appeal of the hearings required by the CHRB was based on the Plaintiffs belief the Board had no right to "seek ‘new evidence,'" and only the plaintiff could bring in new evidence. The court found the California Business and Professional Code section 19582.5 and Board rule 1859.5 gives the board authority to disqualify and retrieve distributed purses without a hearing, but are allowed to give appellants due process. California Business and Professional Code section 19517 gave the board the ability to overturn the steward's decisions if there is evidence stewards had misinterpreted the law, new evidence is found and/or the best interests to the state and racing are better served. Board rule 1859.5 gives authority to the stewards only when violations are found which require disqualification and forfeiture. In this case, the stewards informed the owners of the results of the urine tests and the burden of proof was in the owners hands after receiving notice. The appellants were found to had the opportunity to prove the results were wrong. The three owners were found to have violated rule 1859.5, their horses being found with a prohibited substance, Clenbuterol, in their systems and had the opportunity to challenge the rulings. The appellate court dismissed the appeal.

In Gach vs. CHRB OAH# N1999100432 (1999), Richard Gach was notified his thoroughbred horse, Governor Elect tested positive for a prohibited drug, Clenbuterol. The horse was to be disqualified and the purse forfeited. Gach appealed the ruling on lack of a hearing before forfeiture of the purse to review evidence, to argue the competency of the laboratory results or raise any defenses. The Board argued the California Business and Professional Code allows it to do so without a hearing. Gach appealed argued both United States and California Supreme Courts required hearing before the forfeiture. The CHRB argued Edelberg v Illinois Racing Board 540 F. 2nd 279 (7th Cir. 1976) ruled the purses are not the owners until the horse has shown it did not have prohibited drugs in its system. The court found CHRB Rule 1859.5 agreed with the Edelberg case in assuring the owners the race was fair and rules were followed. In Illinois, owners can challenge laboratory findings, including cross-examining technicians and bring expert testimony. California law does not allow such measures, instead California Business and Professional Code section 19517 only allows overruling if there is evidence stewards had misinterpreted the law, new evidence is found and/or the best interests to the state and racing are better served. The judge found the appellant did not bring any new evidence and because of the Lavin ruling, there is no cause to provide a new hearing. The court agreed there may be a case regarding due process, however the CHRB rules were followed and such issues could not be brought up in an administrative court, but in superior court. The appellant did not show any of the required mistakes required by California Business and Professional Code section 19517 to overturn the decision by the stewards for forfeiture of the purse, thus the forfeiture was affirmed.

Both cases cited Lavin vs. CHRB, 57 Cal. App. 4th 263 (Cali. 1997), which involved the right of the board to disqualify, purse forfeiture when violation of medication occured and the supposed conflict between CHRB Rule 1859.5 and California Business and Professional Code Section 19582.5 to allow discretionary disqualification. The case involved the positive findings of scopolamine in Lady Blessington, Water Prospector and Top Rung who raced at Santa Anita Race Track in 1994. The drug was concluded to have come from bedding straw which contained some Jimsonweed, which has Scopolamine in its composition. Because the horses were not given to them as the CHRB rules describes as administration, the trainers were found not guilty, but the horses were still disqualified and the purse forfeited as said rule 1859.5. Owners Lavin and Clay filed a motion in Los Angeles Superior Court. The court sent a peremptory writ of mandamus to the CHRB to reconsider its decision as the trainers were not found guilty. CHRB stood on its rule of protecting the integrity of racing by having a no tolerance rule. The court found in the Lavin case, CHRB rules protecting the integrity of racing allowed the automatic disqualification and forfeiture of purses and such actions complied with California's general horse racing laws. They believed if the California Legislature thought a hearing was necessary they would have stated so in recent revisions to the statute.

As one can see from the statutes and cases discussed, the laws are quite explicit on how, and why medication are regulated in horse racing. However, as technology and new drugs are available, the hidden weaknesses are exposed and questioned. Although none of the possible challenges brought up in the cases discussed have reached superior court levels, the upcoming decision on the Free House case may change how the laws and regulations are interpeted.

III. Conclusion
Clenbuterol has had a long record of controversy in both human and equine use. In horse racing, besides the reputation of enhancing racing performance, it has been cited as a masking drug, which under California law makes it a potential prohibited drug. However, Lasix (furosemide) a legal anti-bleeding medication, also has been shown to mask drugs and enhance performance in studies at Ohio State University and the University of Pennsylvania according to a recent article by Deirdre B. Biles. Debate rages on as horsemen and scientists argue over whether the drugs are only helping the horses breathe and are not artificially improving a horse's speed or are they doing something harmful to the horse's systems through water loss. Even the American Association of Equine Practitioners (AAEP) has questioned the validity of the studies' methods. The constant advances in detecting medications has outpaced many of the regulations in place and California is trying its hardest to catch up.

‘Super testing' complicates racing as trainers worry about losing purses despite complying with the rules and owners find their horse's reputation in question and their racing record in limbo as cases are tried, such as the extreme case of Free House. The sport is further complicated by horses coming from different jurisdictions with vastly different rules on medication. It can complicate racing campaigns, especially those striving for championships, as connections have to keep in mind the various regulations as they showcase their horses throughout the country. However, the patch-quilt of rules has a greater impact than on the people directly involved with the horse in question. It puts the integrity of the sport of horseracing at risk - especially when a popular horse and/or person are involved - of which the regulations are supposedly designed to protect.

Some are calling for the introduction of a no-tolerance policy practiced by other countries, but many believe "the genie is out of the bottle." If it were to pass it would require a overhaul of over two dozen state racing laws. Some requiring a change in state legislation as in some states or such as in the case California, any changes or implementation of a national rule would require agreement by a  patchwork of groups representing different segments of the industry. The National Thoroughbred Racing Association (NTRA) recently formed a drug Task force to look into a uniform dug policy, but whether such drastic measures will ever be implemented is unknown, but an uniform set of rules would be the best decision for the sport.

How long will it take to be realized? An example is the introduction of the national racing license. According to the Association of Racing Commissioners International (ARCI) website, it has taken more than 30 years for racing licensing to become more streamline, since it was proposed, with only a handful of states becoming one of the firsts to allow a nationwide owners license. Instead of filling out forms, securing fingerprint files and waiting for a background check - which can last from a few days to several weeks - for each state if a owner wanted to race a horse in one of the qualifying states, the state now can have the FBI check the criminal record of the owner for the state and validate the person's right to own in the state and much like drivers license, it can be valid in all states. Unfortunately, California and many other major racing states are still concerned about the standards applied to background checks and government officials have not passed the necessary legislation to join the compact, thus they cannot join in the program as of yet. Uniform drug regulations would face similar problems and roadblocks, however in the long run, the benefits outweigh the disadvantages.

IV. Bibliography
California Business and Professional Codes http://www.legalinfo.ca.gov
 Business and Professional Code section 19580-19583
 Business and Professional Code section 19401
 Business and Professional Code section 19413.1
 Business and Professional Code section 19562
 Business and Professional Code section 19577

CHRB Rules http://www.chrb.ca.gov/cgi.bin/ruletextsearch.asp
 Sections 1843-1843.2, 1859.5 and 1887

Cases
Richard Gach v. CHRB. OAH# N1999100432
William Mezo, Alanna Pena and Gregg Pistochini v. CHRB OAH # N1999070483,   N1999070485, N199907486
Lavin v. CHRB (1997) 57 Cal. App. 4th 263

Secondary Sources
Association of racing Commissioners International. "History." http://www.racinglicense.com/History.html.

Biles, Deirdre B. "Study: Lasix Enhances Performance." The Bloodhorse. 24 August 2000,  3859.

California Thoroughbred Breeders Association. "June 2000 News." http://www.ctba.com/00magazine/jun00/news6.htm.

California Thoroughbred Breeders Association. "Free House Receives Favorable Recommendation." http://www.ctba.com/00news/calbreds0060.htm.

California Horse Racing Board. Horsemen's Handbook Concerning Medication Rules and  Regulations. (1999) http://www.chrb.ca.gov/medbook.pdf.

California Horse Racing Board. "Board Remands Cases to Hearing officers for more evidence."  http://www.chrb.ca.gov/PressRelease/PRMay112000.htm.

Herbert, Kimberly S. "New Respiratory Drug approved." The Horse, July 1998.    http://www.thehorse.com/0798/upfront.html.

Christine, Bill. "It's taken Time, Money to Clear Free House's Name" January 15, 2000.   http://sports.latimes.com/news/20000115/lat/000004806.html.