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Daily Racing Form: California Regulator Defends Handling Of Justify Test

Dr. Rick Arthur speaks out about the California Horse Racing Board's decision to dismiss the 2018 Triple Crown winner's positive test for the regulated substance scopolamine.

Justify
Justify, winning the 150th Belmont Stakes, and thus, becoming the 13th Triple Crown winner in horse racing history. (Mike Lizzi)

Justify, the undefeated winner of the 2018 Triple Crown, tested above the prohibited level for the regulated substance scopolamine after his win in the Santa Anita Derby and the result was thrown out after a review by California regulators, The New York Times reported Wednesday night.

The account of the case as laid out by The New York Times is likely to inflame criticism of racing in an environment in which critics have recently laid siege to the sport, emboldened by a spate of deaths in California earlier this year and the negative perceptions of racing held by a growing and significant share of the population. The New York Times account strongly suggested that Justify was given special treatment by California regulators when adjudicating the case.

Dr. Rick Arthur, the equine medical director of the California Horse Racing Board, said Wednesday night that regulators had concluded that the Justify case deserved to be thrown out due to evidence that the scopolamine found in the sample was the result of environmental contamination. Scopolamine is present in jimson weed, which can be found in natural feed products given to horses, and cases involving the substance over the past 25 years have been difficult to adjudicate.

“I 100 percent stand by my recommendation to dismiss these cases,” Arthur said, referring to what he said were multiple findings of scopolamine in horses that were tested around the same time as the 2018 Santa Anita Derby. “I consider this a case of horse poisoning, not a horse drugging.”

People for the Ethical Treatment of Animals, which has led a concerted public-relations campaign against horse racing for the past eight months, released a statement following publication of The New York Times article claiming that Bob Baffert, Justify’s trainer, “apparently drugged and harmed Justify” and called horse racing “crooked to the core.”

“Baffert should be suspended and held accountable, and Justify should be disqualified from his Triple Crown victory,” a statement from the organization, which is opposed to horse racing, said.

Baffert declined to comment Wednesday night but said a response would be released Thursday morning.

Scopolamine is among a number of substances in racing and human sports that are regulated with threshold levels. The substance occurs naturally in certain plants but can have performance-enhancing effects if administered deliberately, due to the purported ability of the substance to open airways in the lungs. Routine drug assays performed by racing commissions across the United States include tests to detect the substance, and it would be uncommon for a sample containing the substance to return a negative result.

The New York Times stated that the concentration of the substance found in Justify’s sample was 300 nanograms per milliliter. Racing commissions consider a concentration above 75 nanograms as a positive, so that concentration would have triggered additional testing and a regulatory complaint. Arthur said that the CHRB followed standard protocols after the test result was returned.

“The fact of the matter was that this was not a summary decision,” Arthur said, referring to a judgment by a racing commission to automatically levy a penalty against a trainer without further investigation. He said that the last scopolamine positive that the CHRB adjudicated took 18 months to resolve.

Arthur would not disclose details of the concentration of scopolamine found in Justify’s sample, referring those questions to other CHRB officials. He said that there were “certain circumstances irrelevant to who the horse was” that required additional investigation, but would not elaborate on that statement.

Rick Baedeker, executive director of the commission, said Wednesday night in a prepared statement that CHRB officials “take serious the integrity of horse racing in California and are committed to implementing the highest standards of safety and accountability for all jockeys, horses, and participants.” He said that the commission would have a fuller response Thursday morning.

At the time of the positive test result, Justify was firmly on the Triple Crown trail, an undefeated winner of all his prep races and, after the Santa Anita Derby, a favorite for the Kentucky Derby.

The regulation of scopolamine has been problematic for decades, beginning in 1994, when five trainers in California, including Hall of Famers Ron McAnally and Richard Mandella, had horses test positive for the substance at the same time. The horses that tested positive were ultimately disqualified from their races, but fines for the positives were waived. The trainers claimed that their feed had been contaminated by jimson weed.

Cases against trainers for positives of environmental contaminants are extremely costly to litigate because of horsemen’s ability to claim in civil court that they were not at fault and were denied due-process protections during the commission’s adjudication process, where trainers are held to be the “absolute insurer” of a horse’s condition. The “absolute insurer” rule has been weakened over the past five years by several court cases, sapping commissions’ resolve to take the cases to court.

Many racing commissions have sought recently to reach settlements with trainers facing overages for substances that are present in the environment in small concentrations, or to dismiss the results based on findings in an investigation. The New York Times article stated that the CHRB “disposed of the inquiry altogether during a closed-door executive session,” which is often how problematic cases are adjudicated at the commission level.

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