Indiana's New "Biological Samples" Testing Law: Integrity Assured Or Invasive Overreach?
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By Peter J. Sacopulos
From House Bill To Horse Law
On May 1, 2019, Governor Eric Holcomb signed Indiana House Bill 1196 into law. The statute, which took effect on July 1 of this year, directs the Indiana Horse Racing Commission (IHRC) to adopt a variety of new rules and procedures governing horse racing within the state.
Governor Holcomb and Indiana State Representative Bob Cherry, who introduced HB 1196 to the legislature, are Republicans. However, the bill enjoyed broad bipartisan support—a rarity in current American politics. In fact, the final version sailed through both chambers, receiving not a single “nay” vote in the House and a mere three “nays” in the Senate.
HB 1196 is something of an equine regulatory smorgasbord. Examples of its provisions include officially changing references to the IHRC’s “secretary” to “executive director,” altering the way breed advisory committee members are appointed, specifying that certain funds be directed to the Indiana-sired horses program, and the creation of new privacy protections to guard the personal information required on license applications.
Items like these, as well as several others included in HB 1196, are unlikely to cause ripples within the racing community. However, the new law also includes provisions designed to enhance and expand the Commission’s ability to detect, police and reduce the use of banned substances. And while this is undoubtedly a worthwhile cause, a two-word term used in the drug-testing language of HB 1196 has the potential to negatively impact horses and trainers for years to come, with consequences that may spread well beyond the borders of Indiana.
Two Words, Too Broad?
The two-word term is “biological sample.” It is legally defined in the statue as follows:
“Biological sample” refers to any fluid, tissue or other substance obtained from a horse through an internal or external means to test for foreign substances, natural substances at abnormal levels, and prohibited medications. The term includes blood, urine, saliva, hair, muscle tissue collected at a necropsy, semen, and other substances appropriate for testing as determined by the commission.
This definition goes well beyond the longstanding blood, saliva, urine, and more recently, hair, samples routinely collected from Thoroughbred competitors for analysis. It is also disturbingly open-ended. Indeed, the phrase: “…and other substances appropriate for testing as determined by the commission…” is a definition that is essentially wide open, providing the IHRC staff the power to define or redefine a “biological sample.”
While there was discussion and temporary agreement to limit the use of biological samples to necropsy purposes, that limitation was removed from the final version of the bill that was signed into law and became effective July 1, 2019. Therefore, the Commission Staff is authorized and may elect to take muscle tissue, and other biological samples, from live animals as it deems and determines necessary and appropriate. This rule and its definition of biological sample establishes a new frontier of testing.
Is This Risk Really Necessary?
One of the primary concerns and positions advanced in opposition to allowing biological samples to be taken from live animals is the risk of injury.
Taking saliva and hair samples from a Thoroughbred is painless and easy. And anyone who has ever been around horses knows that they are more than happy to provide all the urine you could ever want! Drawing blood from a horse is only slightly more difficult and rarely involves the use of a local anesthetic.
However, taking “…any fluid, tissue or other substance… through an internal or external means…” is another matter entirely. It opens the door to far more invasive collection techniques that carry far greater risks for horses than blood, saliva, urine or hair sampling. To be clear, I am referring to biopsies.
A biopsy is the removal and examination of cells or tissue from a living being for the purposes of testing and examination. Any biopsy carries risk of injury or infection. Taking a biopsy from a horse may be as simple as a skin sample from the withers or tissue from the lining of the mouth, or as difficult as removing material from the teeth or the interior of the eye; or from internal organs such as the heart, lungs, liver, intestine or colon. In the latter examples, a biopsy becomes a complex medical procedure. A procedure performed on a large, valuable animal requires sedation and may require general anesthesia to facilitate tissue collection.
Sedating a horse is serious business. Sedatives and anesthetics carry significant risks, even when administered with care by skilled equine veterinary professionals. Those risks include allergic reactions, collapse, excitement, cardiac arrest, medical injury and post-anesthetic colic.