What’s In Your Orange Juice?

By: Kelli Hagan, Senior Staff Member

Recently, a U.S. policy has ordered a holding on imported orange juice while samples are tested for a banned fungicide.  Traces of carbendazim, a fungicide that is banned in the U.S. but still used in Brazil, have been found in orange juice imported from Brazil.  Carbendazim has been linked to liver tumors in animals.  Brazilian producers use the chemical to combat a fungus that discolors the outside of oranges and causes trees to drop their fruit prematurely.

[1]

  The scare started after the maker of Minute Maid juice, Coca-Cola Co., warned that tests found low levels of carbendazim in juice shipments from Brazil, a major exporter. The amounts were well below levels that would cause a health concern, Coca-Cola said, but federal regulators started testing imports.

[2]

   Some say the U.S. holding period could last up to six months.

How will this affect the American consumer?  Many are predicting that already high prices for orange juice in the store will likely jump further in coming weeks as markets react to potential chemical contamination in the juice.  About 55 million gallons of orange juice consumed in the U.S. per year comes from Brazil, so a cut in imports from there is expected to boost wholesale prices that already are up 20 percent from last year.

[3]

  However, local orange growers say the chemical scare is changing the way people buy juice – and it's boosting their profits.

[4]

  As people are becoming more concerned with what they are consuming this could boost local orange growers’ profits.  So maybe the orange juice scare is not so bad after all?  This may continue to book the ever-growing trend of consumers preferring to buy local.  

[1]

Stephanie Armour et.al.

Testing of Orange Juice For Fungicide May Continue Through July

, Bloomberg (January 17, 2012),

http://www.businessweek.com/news/2012-01-18/testing-of-orange-juice-for-fungicide-may-continue-through-july.html

.

[2]

Id

.

[3]

Richard Mullins,

Orange Juice Prices Expected to Jump

, The Tampa Tribune. (January 18, 2012),

http://www2.tbo.com/news/business/2012/jan/18/1/mebizo1-orange-juice-prices-expected-to-jump-ar-348545/

.

[4]

Josh Salman,

Orange Juice Scare Might Promote Business for Florida Growers

, Bradenton Herald (January 13, 2012),

http://www.sacbee.com/2012/01/13/4185575/orange-juice-scare-might-promote.html

.

Implications of Rising Hay Costs on Horses

By: Stephen M. Frazier, Senior Staff member

One of the main problems facing horse owners is the necessity of hay.  Unlike cattle and other livestock that can be fed a variety of hay, grain, and silage, horses primarily derive nutrition from quality hay.[1] To compound the problem, owners cannot alleviate the financial burden by feeding horses a mixture of grain and hay because, with corn selling for nearly eight dollars a bushel, grain prices are at an all-time high.[2] As a result, owners are stuck paying $18 to $19 per bale of alfalfa - the same alfalfa that was selling for about $9 a bale a year ago.[3]

The next problem with buying hay is quality. When buying hay, purchasers should be certain to purchase hay of sufficient quality to meet the nutritional needs of horses.[4] Failure to adequately inspect the hay could result in purchasing hay of poor quality that will require additional supplementation, such as protein, to meet nutritional needs.[5] According to agricultural experts, the main factors affecting hay quality are “stage of maturity, leafiness, color, foreign matter, odor, and condition.”[6] These factors can be determined by a visual inspection, or by having the hay tested.[7]

Finally, with the increasing cost of hay, farmers should take necessary and adequate precautions to preserve the hay once it is in their possession. Proper storage of hay bales is vital because this can mitigate or prevent deterioration or spoilage of the hay.[8] Ultimately, storing hay inside a barn is the best option, as it greatly reduces the risk of hay loss.[9] However, if such storage is impossible, then bales stored outside should be placed on some sort of surface, ideally gravel or pallets.[10] Furthermore, the bales should be stored in a well-drained area with at least three feet between rows.[11]

The increasing hay prices have left farmers and horse lovers scrambling to acquire hay. In addition, once they are able to locate a source, the price is nearly double that from a year ago.  Therefore, to ensure that farmers get the best value for their dollar, it is important that they take the time to adequately inspect the hay and take the proper precautions to ensure its safekeeping.

[1]Id.

[2] Julie Ingwersen, Midwest turns dry as drought worsens in Plains, Reuters,  Jul 21, 2011,

http://www.reuters.com/article/2011/07/21/us-usa-drought-plains-idUSTRE76K4T52011072.

[3] Wichner, supra note 1.

[4] Daren Redfearn, Hay Purchasing Guidelines, Department of Plant & Soil Sciences Extension News, Apr. 20, 2011, http://extensionnews.okstate.edu/archived-articles-1/2011-archived-articles/Hay%20puchasing%2 0guidelines %20doc.pdf.

[5]Id.

[6] Mindy Riffle, Weather could impact hay supply, Country World, June 21, 2011, http://countryworldnews.com/news/headlines/900--weather-could-impact-hay-supply.html.

[7]Id.

[8] James Rogers and Robert Wells, Rain Effects on Hay, Noble Foundation, Sept. 2007, http://www.noble.org/ag/forage/raineffects/index.html.

[9]Id.

[10]Id.

[11]Id.

The U.S. Horse Slaughtering Ban is Lifted – For Better or For Worse?

By: Chris DeAgano, Senior Staff Member

The legality and ethical propriety of horse slaughtering has been a controversial topic in the United States for the past decade. While it has never been “illegal” in the technical sense, Congress passed a law in 2006 that prohibited federal funding for USDA horse meat inspections.[1] This change essentially ended the practice of slaughtering horses for domestic human consumption.[2]  However, the 2006 USDA funding prohibition was recently lifted as part of a Congressional bill signed by President Obama on November 18, 2011.[3] With an estimated 100,000 American horses being slaughtered for human consumption each year,[4] there are two sides to this debate that should be considered.

Proponents of domestic horse slaughtering are satisfied with the decision because they believe that the 2006 law caused more abandoned and neglected horses to be sold and processed for meat in countries that, unlike the U.S., do not require humane euthanasia.[5] Additionally, some argue that the law forced many breeders and owners to go out of business because their inability to sell horses for meat "removed the floor" for prices while also forcing owners to shoulder costs for euthanizing and disposing of unwanted horses.[6] Thus, while the objective of the law may have been to promote humane treatment of horses, it may have actually led to increasingly inhumane treatment as greater numbers of equines were diverted to Mexico or Canada and away from USDA jurisdiction.[7]

On the other hand, many people do not believe that lifting the ban is the correct decision. Opponents argue that ending the de facto ban will challenge the ethics of horse ownership and undermine the sanctity of the unique bond between humans and horses.[8] They believe horse slaughter should be banned because it is inherently cruel and abusive and cannot be made humane, even if done in accordance with USDA regulations.[9] Anti-slaughter groups and individuals often place the blame on breeders.[10] They want the government to penalize people for over-breeding, rather than allowing innocent horses to be slaughtered.[11]

While there are valid points on each side, lifting the ban may very well be the correct decision due to its ineffectiveness. This is especially true considering the current and recent status of the U.S. economy. In explaining the rationale for this unpopular position, Ingrid Newkirk, the founder of People for the Ethical Treatment of Animals (PETA), summarized it well when she observed that “the amount of suffering that it created exceeded the amount of suffering it was designed to stop.”[12]

[1] Alison Rowe, Obama Lifts Horse Slaughter Ban—PETA Says It’s a Good Idea, Equine Law Blog (Dec. 1, 2011), available athttp://equinelaw.alisonrowe.com/2011/12/articles/legislation/obama-lifts-horse-slaughter-banpeta-says-its-a-good-idea/.

[2]Id.

[3]Id.

[4] Animals’ Angels, Horse Slaughter – The Facts, http://animalsangels.org/the-issues/horse-slaughter.html, (last visited Jan. 23, 2012).

[5] Patrik Jonsson, Way Cleared for Horse Slaughter to Resume in US After 5-Year Ban, The Christian Science Monitor (Nov. 29, 2011), available athttp://www.csmonitor.com/USA/2011/1129/Way-cleared-for-horse-slaughter-to-resume-in-US-after-5-year-ban.

[6]Id.

[7] Patrik Jonsson, Lifting HorseSlaughter Ban: Why PETA Says It's a Good Idea, The Christian Science Monitor (Nov. 30, 2011), available athttp://www.csmonitor.com/USA/2011/1130/Lifting-horse-slaughter-ban-Why-PETA-says-it-s-a-good-idea.

[8] Jonsson, supra note 4.

[9] Rowe, supra note 1.

[10]Id.

[11]Id.

[12] Jonsson, supra note 6.

Keystone Oil Pipeline Plans Plugged

By: Roger Battiston, Senior Staff Member

On January 18, 2012, the Obama administration rejected the application for the proposed 1,661-mile extension of the Keystone Oil Pipeline.[1] The proposed pipeline would span from Hardesty, Canada and cross through six states, ending on the Gulf Coast in Port Arthur, Texas.[2] Proponents of the pipeline have argued that it would supply the U.S. with a steady stream of crude oil from Canada, amounting to hundreds of thousands of barrels per day, and would create jobs that would stimulate the weak U.S. economy.[3] Those opposed to the pipeline project have cited environmental concerns and argue that the pipeline would do very little to curb the U.S.’s dependence on foreign oil. [4]

Because of the profound size of the Keystone Oil Pipeline expansion, it is no surprise that it has become heavily politicized. President Obama had not made a decision on the pipeline for much of 2011, but was forced to approve or deny the application when Congress passed legislation mandating a decision by February 21, 2012.[5] In a statement released from the President, the application was denied, not because of environmental concerns, but because the deadline did not provide enough time for the administration to make an informed decision.[6] The statement noted that the decision “… is not a judgment on the merits of the pipeline, but the arbitrary nature of a deadline that prevented the State Department from gathering the information necessary to approve the project and protect the American people.”[7]

While groups opposing and supporting the project have valid arguments, the Obama administration’s decision is quite laudable. When a project of this magnitude is proposed, careful consideration of its advantages and disadvantages should be made. Rushing the decision could lead to serious unforeseen consequences.

[1] Sanchez, Barack Obama rejects controversial Keystone oil pipeline, The Telegraph, Jan.18, 2012, http://www.telegraph.co.uk/news/worldnews/barackobama/9023975/Barack-Obama-rejects-controversial-Keystone-oil-pipeline.html.

[2]Keystone Pipeline System, 3 (2011)http://www.transcanada.com/docs/Key_Projects/keystone.pdf.

[3] Broder and Frosch, Rejecting Pipeline Proposal, Obama Blames Congress, The New York Times, Jan. 18, 2012, http://www.nytimes.com/2012/01/19/us/state-dept-to-put-oil-pipeline-on-hold.html?_r=1.

[4]Id.

[5] Daly, Obama, GOP back in tussle over oil pipeline, Associated Press, Jan. 19, 2012,http://abcnews.go.com/Politics/wireStory/obama-gop-back-tussle-oil-pipeline-15391420.

[6] Office of Press Secretary, Statement by the President on the Keystone XL Pipeline (2012)http://www.whitehouse.gov/the-press-office/2012/01/18/statement-president-keystone-xl-pipeline.

[7]Id.

Economic Development Spending: Should the Horse Racing Industry be on the Chopping Block?

By: Chris Henderson, Senior Staff Member

The mayor’s proposed budget estimates that the city will receive about 271 million dollars in 2012. This will make 2012 the fourth year in a row that general fund receipts have either declined or remained flat.[1] “Prior to fiscal year 2009 there is only one other year in Lexington’s history in which general fund revenue failed to grow, year-over-year.”[2] The inability to collect enough revenue has forced the Mayor to make deep cuts and crucial layoffs with government personnel. In his annual Budget Address, Gray stated that 28 government employees would be laid off and announced that a hiring freeze would be enacted on both the police and fire departments.[3] With Lexington facing a constrained budget, city leaders must understand that restructuring the local economy begins with making smarter decision about how Lexington spends.

But the essential question is, “why has revenue consistently declined,” specifically when Lexington hosted the World Equestrian Games in 2010? The answer is simple- Lexington did not invest in blue ocean industries. In Kim Chan’s ground breaking book “Blue Ocean Strategy,” she described how businesses can thrive if they “imagine a market universe composed of two sorts of oceans: red oceans and blue oceans.”[4] Red oceans represent all the industries in existence today.[5] In the red oceans, industry boundaries are defined and accepted, and the competitive rules of the game are known.[6] As the market space gets crowded, prospects for profits and growth are reduced.[7] Blue oceans, in contrast, are defined by untapped market space, demand creation, and the opportunity for highly profitable growth.[8]

For example, in preparation for the World equestrian games, “Lexington invested $107 million of local, state, and federal public money for improvements at the horse park and around the city and an additional $151 million in tax money for public works projects.”[9] In addition to the government support, “Businesses put at least $70 million into the games, including $32 million from title sponsor Alltech.”[10] But what did they get in return? Lexington only received an economic impact of 201.5 million to the local economy.[11] To add insult to injury, Lexington lost out on a bid to have the games return to the bluegrass state.[12] Although Kentucky has a long tradition of horse racing, city leaders must strike a balance between preserving the current horse racing culture and creating a new one. In order for Lexington to thrive economically, they must invest in blue ocean industries.

[1] Mayor’s 2012 Budget address,Lexingtonky.gov, http://www.lexingtonky.gov/index.aspx?page=2806 (Last Visited Nov. 29, 2011).

[2]Id.

[3]Id.

[4] W. Chan Kim & Renee Mauborgne R, Blue Ocean Strategy: How to Create Uncontested Market Space and Make the Competition Irrelevant (Harvard Business School Press, 2005)

[5]Id.

[6]Id.

[7]Id.

[8]Id.

[9] Janet Patton, World Equestrian Games: One Year Later, Oct 9, 2011. Kentucky.com/business.http://www.kentucky.com/2011/10/09/1913723/one-year-later-impact-of-world.html (Last Visited Nov. 29, 2011).

[10]Id.

[11] Beshear: world equestrian games brought $201.5 million to local economy, June 27, 2011.http://www.kyforward.com/2011/06/beshear-world-equestrian-games-brought-201-5-million-to-local-economy/

[12] Patton, Supra note 9.

Waiting on the Rain: Drought Ravages the Texas Cattle Industry

By: John Michael Carter, Senior Staff Member

Few remnants of the “Old West” endure in modern America. However, when one thinks of cattle farming in Texas, images of cowpokes and endless ranchland come to mind. It is not difficult to believe that some bastion of the idealized west that so many authors love to write about still remains. However, the Texas cattle industry is currently under attack, and the attacker is not a rouge cow-thief or marauding Indian tribe. Rather, the worst drought in Texas history is to blame.

Texas ranchers waiting for rain in 2011 were sadly disappointed when the state received less than half of its annual rainfall.[1] On December 27, 2011, 97.83% of Texas was in a drought, and 84.81% of the land was experiencing severe drought conditions.[2] These extreme circumstances have had a massive impact on the number cattle in the state. It is estimated that this time last year an extra 600,000 cows roamed pastures in the Lone Star State, but now this portion, representing 12% of the total population, has disappeared.[3]

Many of the missing bovines have been moved north to greener pastures out of state. Farmers were forced to make the move when the lack of rain dried up the grass and pushed the hay and feed prices ever upwards.[4] Other ranchers slaughtered a great deal of the livestock after weighing their options.[5] As supply dropped and the calls for breeding cattle from overseas increased, many cows were shipped out of the U.S. to places such as China and Russia.[6] The most unfortunate victims were the cows that simply perished amidst the sweltering heat and bone-dry landscape. Cattle can ingest over eight gallons of water per day, but this year it appears that the Texan cattle are drinking less than one.[7] When the cattle do encounter water, their extreme thirst causes them to drink too much causing death by “water intoxication.”[8]Furthermore, high temperatures can cause deadly algae growth in watering tanks.[9]

The reduction in cattle population may substantially affect not only the Texas cattle industry, but also the Americans that consume over 20 billion pounds of beef each year.[10] It is estimated that the price of beef will increase by 5.5% in 2012, adding to the 9% increase that was experienced in 2011.[11]

Are there greener pastures ahead for Texan cattle farmer and the beef consuming American? The outlook is grim. According to the Houston Chronicle, “There's growing concern among some scientists that Texas' drought could linger through another dry winter and return next summer to more deeply ravage an already water-stressed state.”[12]

[1] Molly Hennessy-Fiske, Texas Drought Shrinks State Cow Herd, Los Angeles Times Blogs(Dec. 17, 2011, 9:28 PM), http://latimesblogs.latimes.com/nationnow/2011/12/texas-drought-shrinks-state-cow-herd.html.

[2] U.S. Drought Monitor: Texas, University of Nebraska at Lincoln, http://droughtmonitor.unl.edu/DM_state.htm?TX,S (last visited Jan. 22, 2012).

[3] Hennessy-Fiske, supra.

[4] Hennessy-Fiske, supra.

[5] Id.

[6] Id.

[7] John Marsh, Texas Drought Causing Cattle Deaths . . . From Too Much Water?,AccuWeather.com (Jul. 16, 2011, 9:33 AM), http://www.accuweather.com/en/weather-news/texas-drought-causing-cattle-d/52441.

[8] Id.

[9] Id.

[10] U.S. Beef and Cattle Industry: Background Statistics and Information, U.S. Dep’t of Agriculture: Economic Research Service, http://www.ers.usda.gov/news/BSECoverage.htm (last visited Jan. 22, 2012).

[11] Hennessy-Fiske, supra.

[12] Eric Burger, This Summer’s Drought May Worsen Next Year, Houston Chronicle (Aug. 22, 2011, 8:34 PM), http://www.chron.com/news/houston-texas/article/This-summer-s-drought-may-worsen-next-year-2136436.php.

Grand Canyon Mining Ban: Environmentalism v. Industrialism

By: Bradley Harn, Senior Staff Member

In January 2012 the Obama administration announced it had enacted a 20 year ban on new mining permits for approximately a one million acre area around the Grand Canyon.[1]  This reversed the Bush administration’s policy of opening up the area to new mining, and primarily affects the sizable uranium deposits in the area.[2]

Many have praised this policy since it protects the local tourism industry.  “A 2005 study by the University of Northern Arizona shows that Grand Canyon tourism generates $687 million in annual revenue and creates more than 12,000 full-time jobs.”[3]    Environmentalists have also pointed out that the ban would help protect drinking water for 25 million people.[4]  Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club stated, “Uranium mines are here today, gone tomorrow, but the pollution they leave behind is here for a very long time.”[5]

However, others have been critical of the ban.  Arizona’s Republican Governor Janice Brewer remarked that the ban “comes at the expense of hundreds of high-paying jobs and approximately $10 billion worth of activity for the Arizona economy.”[6]  The Institute for Energy Research issued a release stating, “This latest power-grab by federal regulators is another example of the Obama administration's willingness to use ideologically driven energy policies as a means to control the U.S. economy."[7]  At the same time, however, the currently “approved mining operations could continue and new operations could be approved on valid existing mining claims. In addition, other Federal lands in Arizona and other parts of the country would remain open to hardrock mining claims.[8]  In other words, this ban does not altogether eliminate mining in the area.

Do you feel the President Obama has achieved the correct balance between protecting the environment and creating jobs? What alternative regime would you propose?

[1] Matthew Daly, USA Today, New 20-year Ban on Mining near Grand Canyon is Final,http://www.usatoday.com/money/industries/environment/story/2012-01-09/grand-canyon-mining-ban/52466224/1.

[2] Id.

[3] http://www.policymic.com/articles/3281/obama-rightly-sets-20-year-moratorium-on-uranium-mining-near-grand-canyon.

[4] Katarzyna Klimasinska and Amanda J. Crawford, Ban at U.S. Grand Canyon Pits Tourism Against Mining, http://www.bloomberg.com/news/2012-01-10/uranium-ban-at-u-s-grand-canyon-pits-tourism-against-mining.html.

[5] Daly, supra note 1.

[6] Klimasinska and Crawford, supra note 4.

[7] Deborah Zabarenko, Obama Ban Uranium Mining Around Grand Canyon, http://www.reuters.com/article/2012/01/09/us-usa-grandcanyon-uranium-idUSTRE8081NA20120109.

[8] U.S. Department of the Interior, http://www.blm.gov/az/st/en/prog/mining/timeout.html.

Implementing Stricter Exotic Pets Laws Will Avert Future Animal Tragedies

By: Ena Viteskic, Senior Staff Member

Dozens of lions, tigers, bears and monkeys roamed around the countryside on Tuesday, October 18, 2011.[1] The images of these exotic animals wandering among the general population almost depicted a scene from the “Wild West,” however, Zanesville, Ohio is a far cry from the “Wild West.” When the owner of a private zoo, Terry Thompson, released these animals by breaking the animals’ cages and fences, uproar ensued in the Ohio community.[2] In order to avert public chaos, law enforcement had no other choice but to kill many of these exotic animals.3

Although this horrific incident has attracted nationwide media attention, the perplexing issue of exotic pets is nothing new. In fact, states have struggled for years in regards to the appropriate mechanism for regulating the private ownership of exotic pets. Many states have established total or partial bans on private ownership of exotic pets while other states, including Ohio, do not have a direct ban on owing such animals.[4] Therefore, the question that emerges is whether a direct ban on private ownership could have saved these animals?

Ohio has always been considered the “Wild West” of exotic animals because of its lack of regulation on private ownership of such animals.[5] This tragedy stunned the national community, including Kentucky Wildlife officials. Steven Dobey, a wildlife biologist with the Kentucky Department of Fish and Wildlife Resources stated: “[t]hat was unbelievable, awful and an extremely dangerous situation.”[6] The incident triggered lawmakers across the country to evaluate their existing laws in regards to exotic pet ownership. Pacelle, CEO of the Humane Society of the United States, proclaimed that the “[states] will seek statutory authority. Changes must be made in the law.”[7] The governor of Ohio has also publicly stated that such legal changes will be addressed by the legislature in its next session.[8] In order to implement these changes, states should look to the Kentucky regulation as a model for new laws. According to 301 Ky. Admin. Regs. 2:082, no person may possess inherently dangerous exotic animals.[9] The regulation further explains that “inherently dangerous exotic animals include, but are not limited to tigers, lions, non-human primates, dangerous reptiles, bears, etc.”[10] Of course, the regulation carves out an exception for ownership of exotic animals for educational and research purposes.[11] Based on this regulation, it is clear that private ownership of exotic pets will not be tolerated in Kentucky.

In exotic pet cases, the government has a compelling interest to prohibit the private ownership of such pets. The unregulated ownership of these animals poses a large risk to public safety. Not only are these animals dangerous because of their size and ability to physically harm humans, they are also dangerous because of the potential diseases they carry.  Besides protecting the public at large, these laws will most importantly protect the exotic animals. Such animals require more care and resources than one’s dog, cat, or hamster and it is difficult for states to control the treatment of these animals. As a result, every state in the United States should make it a mission to implement stricter laws in regards to private ownership of exotic pets.  Banning private ownership will allow these animals to live in their natural habitat and not be subject to future tragedies.

[1] Andrew Welsh-Huggins and John Seewer, Zanesville, Ohio Animal Owner Reportedly Traded Guns for Tiger, Monkey, Huff Post Green (Oct. 21, 2011, 09:47PM),http://www.huffingtonpost.com/2011/10/21/zanesville-ohio-exotic-animals-escape-killed_n_1026064.html.

[2] Id.

[3] Id.

[4] Tommy Garret, Wildlife Massacre in Ohio, An Animal Tragedy, Canyon News (Oct 23, 2011, 09:55PM), http://www.canyon-news.com/artman2/publish/National_News_1182/Wildlife_Massacre_In_Ohio_An_Animal_Tragedy.php.

[5] Id.

[6] Gary Garth, Kentucky regs strict on exotics, Courier-Journal.com (Oct 23, 2011, 12:33AM),http://www.courierjournal.com/article/20111022/SPORTS09/310220107/1002/Outdoors-Notebook-Kentucky-regs-strict-exotics?odyssey=mod%7Cnewswell%7Ctext%7CHome%7Cs.

[7] Ohio governor signs executive order on dangerous animals, CNN (Oct 21, 2011),http://articles.cnn.com/2011-10-21/us/us_ohio-animals_1_dangerous-animals-john-kasich-wayne-pacelle?_s=PM:US.

[8] Id.

[9] See 301 Ky. Admin. Regs. 2:082.

[10] Id.; see alsoKentucky State Laws Governing Private Possession of Exotic Animals, Born Free USA, http://www.bornfreeusa.org/b4a2_exotic_animals_state.php?s=ky.

[11] See 301 Ky. Admin. Regs. 2:082

Could the threat of preemption herald a state crackdown on horse trainers who don't follow the rules?

By: Peter Rottgers, Senior Staff Member

Thoroughbred racing is a lot like Ozzy Osbourne. They both did their best work before 1985, in their post prime years both have maintained small but loyal followings, and they both have a tendency to engender conversations about drug use (whether or not that ought to be the case). It’s the later similarity that has garnered the most attention lately. While criticism over performance enhancing drugs and race-day medication has been ongoing for decades, outrage from both the industry and the general public reached its zenith in the aftermath of the Eight Bells tragedy at the 2008 Kentucky Derby. [1] Everyone agreed that something must be done to clean up the sport, but because thoroughbred racing has no central authority to mandate industry wide change, progress has not been as swift enough for some.[2]

To be fair, the states, which promulgate and enforce their own drug and medication rules, have made some progress in reforming the industry.[3] The use of anabolic steroids, blood doping agents like EPO, and “milkshakes” (a mixture of baking soda, sugar and electrolytes usually force fed to a horse via feeding tube [4]) have been effectively eliminated through new regulations and stricter testing.[5] However, even though the states have made some headway on drug and medication reform, the hard issues to be resolved still loom large. While the states should be commended for banning a practice as reprehensible as “milkshaking”, the issue seems to be a relative softball when compared to medications like Lasix. Lasix, a diuretic used to prevent pulmonary bleeding caused by the extreme exertion of a race, is legal in every thoroughbred-racing jurisdiction in North America.[6] Lasix also has performance enhancing qualities and is reputed to mask the presence of other performance enhancing drugs.[7] Yet, swift and uniform change by the states on hard cases like Lasix is probably nothing more than wishful thinking.

The states have also failed to create an effective system of penalizing violators of banned substance rules. As of October 2010, only two of racing’s top 20 trainers by purses won had never committed a drug or medication violation.[8] At least five of those 20 trainers had in excess of 20 drug or medication violations, yet all were still actively training at the time.[9] When compared to the three strike rules in other major American sports [10], thoroughbred racing’s rule enforcement seems laughable.

Two individuals who are not chuckling are Kentucky Representative Edward Whitfield and New Mexico Senator Tom Udall. In May of 2011, Whitfield and Udall presented legislation that called for a federal cleanup of the horse racing industry.[11] The bill seeks to expand Congressional authority over horse racing through amendments to the Interstate Horse Wagering Act of 1978, which gave Congress the power to regulate interstate via phone or other electronic devise.[12] If the Whitfield-Udall bill is anything, it’s bold. It calls for zero tolerance policies for most drugs on race days, and institutes a nationwide three strikes program.[13] The program has received a fair amount of criticism,[14] but the prospect of federal preemption may be just the push the states need to get serious about rule enforcement.

The last thing states want is for the federal government to amend the Interstate Horse Wagering Act. If Congress adopts rules and enforcement procedures, it could also adopt new taxes on the interstate wagers they regulate to pay for rule enforcement, which could explain Rick Dutrow Jr.’s recent headlines.Dutrow, trainer of 2008 Kentucky Derby winner Big Brown, has racked up over 60 drug or medication violations in his career.[15] He is also one of the most successful trainers in the thoroughbred racing industry.[16] Earlier this year, the Kentucky Racing Commission finally revoked Dutrow’s trainer’s license.[17] Last week, the New York Racing and Wagering Board fined Dutrow $50,000 and revoked his trainer license for 10 years [18]. After years of rule breaking, Dutrow is now out of business in two of the country’s most prestigious thoroughbred racing states. This might become the trend with drug and medication rule violators. In order to show Congress that the states are capable of handling horse racing on their own, we could see a crack down on violators in the near future. Maybe federal preemption isn’t the answer, but the threat of federal preemption might prove to be catalyst that gets racing back on track.

[1] Posting of Steve Zorn to The Rail: The New York Times Horse Racing Blogg,http://therail.blogs.nytimes.com/2011/05/14/racings-drug-problem-more-complicated-than-it-looks/ (May 14, 2011, 9:23 EST).

[2] Id.

[3] Id.

[4] Joe Drape, At Breeders’ Cup, a Volatile Mix of Speed and Drugs, N.Y. Times, Nov. 3, 2010, at B16,available athttp://www.nytimes.com/2010/11/04/sports/04racing.html.

[5] Zorn, supra note 1.

[6] Id.

[7] Id.

[8] Drape, supra note 4.

[9] Id.

[10] Deborah Charles and Paul Grant, Factbook: Rules About Steroid Use in U.S. Sport,http://www.reuters.com/article/2008/01/11/us-steroids-rules-idUSN0433166620080111 (last visited Oct. 25, 2011).

[11] Zorn, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Joe Drape, 3 Years After Triple Crown Bid, Trainer Is Given a 10-Year Ban, N.Y. Times, Oct. 12 2011, at A1, available athttp://www.nytimes.com/2011/10/13/sports/dutrow-barred-from-training-horses-in-new-york-for-10-years.html?pagewanted=all.

[16] Drape, supra note 4.

[17] Zorn, supra note 1.

[18] 2 Drape, supra note 15.