Last month, I listened to a podcast interviewing the owner of Straight Arrow, the parent company that produces Mane and Tail and Cowboy Magic products. As a lifelong horse owner (including several grey horses that love mud), I cannot remember a time when I did not have a Mane and Tail and/or Cowboy Magic product in my tack room. The interview took place after the podcasters toured the Cowboy Magic manufacturing facility, which, according to the podcast interview, is a state of the art facility which adheres to strict quality assurances. When listening to the details of how their products are manufactured, I realized that many animal owners may not know what regulatory standards apply to the manufacturing of pet grooming products.

According to the FDA, the “animal counterpart of a cosmetic is commonly referred to as a ‘grooming aid.’” See FDA, Animal Products FDA Regulates, available at https://www.fda.gov/animal-veterinary/resources-you/animal-products-fda-regulates (hereinafter, “FDA Guidelines”). The FDA is only empowered to regulate cosmetics that pertain to human use:

The term “cosmetic” means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap.

21 U.S.C. § 321(i). Therefore standard animal grooming products do not fall within the control of the FDA. See FDA Guidelines. However, if animal grooming products are also made for human use, if the products are intended for any therapeutic purpose, or if the products are intended to affect the structure or function of the animal, they are subject to FDA regulation as a new animal drug. Id. Thus, a product like Mane and Tail, which is marketed for human use as well as animal use, is subject to FDA regulations.

A “new animal drug” is “any drug intended for use in animals other than man, including any drug intended for use in animal feed” but not including the animal feed, the composition of which is such that the drug is not generally recognized as safe and effective for the use under the conditions prescribed, recommended, or suggested in the labeling of the drug. See 21 U.S.C. § 321(v); see also FDA, New Animal Drug Applications, available at https://www.fda.gov/animal-veterinary/development-approval-process/new-animal-drug-applications. New animal drugs may not be sold until they are approved or conditionally approved by the FDA’s Center for Veterinary Medicine.

Thus, the answer as to what standards apply to the production of animal grooming products is, like most things in the law: it depends. A pet shampoo that merely claims to make the fur soft and shiny is unlikely to be subject to FDA regulations, whereas a shampoo that claims to prevent anemia or illness caused by fleas or ticks would be subject to FDA regulations and EPA regulations (governing all pet pesticide treatments). Of course, pet grooming products must still comply with packaging and labeling requirements governed by FTC and state consumer protection laws, and any claims about the efficacy of the product must be substantiated by competent and reliable scientific evidence.

We are available if you need advice related to any animal products you are manufacturing, distributing or selling.

Here is a glimpse into what happened at the tail end (ha!) of the 2018-2019 New Jersey Legislative Session.

Homes for Animal Heroes

The Homes for Animal Heroes bill, S 2826, made it over the final hurdle on the last day of this legislative session in New Jersey, passing 75-0 in the Assembly on January 13, 2020.  It had previously passed in the Senate so is now headed to the Governor’s desk.

The bill will require an institution of higher education, and research institutions that contract with colleges and universities to use cats and dogs for educational, research, or scientific purposes to provide such animals for adoption, when the cat or dog is no longer needed for educational, research, or scientific purposes, after determining that the health of the cat or dog renders it suitable for adoption.

While this is the practice of these research institutions in the State and much of the country, this law codifies this practice.

As reported in a press release published on Insider NJ,

‘New Jersey’s biomedical research community, including our nationally-renowned research universities and partners within the state’s life sciences companies, are pleased to see the Legislature recognize the importance of ensuring permanent homes for retired research animals – our animal heroes,’ said Tom Leach, executive director of the New Jersey Association for Biomedical Research. ‘We thank Assemblywoman Vainieri Huttle and the late Senator Anthony R. Bucco for their leadership in sponsoring this important legislation and working with all stakeholders to ensure we continue to find forever homes with the best interests of the animals in mind.’

Equine Stabling Tax Exempt

Another animal-related bill that made it through the legislative process, A1045 “clarifies the sales tax collection responsibilities of horse-boarding businesses in New Jersey by providing an exemption from tax for the lease or rental of certain stable stalls and charges for horse boarding and certain other related services.”

The bill provides that boarding, stabling, keeping, and feeding horses and other domestic equids are non-taxable services.

Proposed Bill on Animal Use in Cosmetic Testing

A bill just introduced on January 9, 2020, S4348 would prohibit the sale of cosmetic products that have been tested on animals.  Like similar bills passed in other states, this bill includes numerous exemptions, if:

(1)   The animal test is required by a federal or State regulatory authority and:

(a)   the ingredient that requires an animal test is in wide use and cannot be replaced by another ingredient,

(b)   a specific human health problem is associated with the ingredient and the need to conduct an animal test on the ingredient is justified and supported by a research protocol, and

(c)   there is no non-animal test that is accepted by the relevant federal or State regulatory authority as a means to gather the relevant data;

(2)   The animal test is conducted to comply with a requirement of a foreign regulatory authority, if no evidence derived from the test is relied upon to substantiate the safety of the cosmetic pursuant to federal or State regulations; or

(3)   The animal test is conducted on a product or ingredient subject to the requirements of chapter V of the federal “Food, Drug, and Cosmetic Act,” 21 U.S.C. s.351 et seq.

[and]

to cosmetics that were sold in the State or tested on animals prior to January 1, 2020, even if the cosmetic is manufactured after that date.

Like the bills known as “Moose’s Law” and “Desmond’s Law” previously discussed, S4348 will likely be re-introduced in the 2020-2021 Legislative Session.

 

 

Instead of amending Moose’s law to remove untenable, unreasonable provisions, last discussed here, the bill was amended to to provide that persons charged with “animal cruelty offenses,” a presumption against being admitted into a pretrial intervention program.  As described in the statement to S861, “[a] pretrial intervention program is a program that provides defendants, generally first-time offenders, with opportunities for alternatives to the traditional criminal justice process of ordinary prosecution.”

Once again, the bill fails to differentiate egregious acts of animal cruelty for which such a provision might be reasonable to apply, from other alleged violations of the animal cruelty statute.  Such a provision appears to conflict with current state and federal measures of criminal justice reform.

With no reliable available database to track animal cruelty cases, which in New Jersey are often adjudicated in municipal courts, it is impossible to prove that those with lower socio-economic status are more frequently defendants in these cases.  However, it is not unreasonable to assume that such persons, if accused, would not have the resources to retain an attorney to provide a vigorous defense or minimize their liability.

The amendment to N.J.S.2C:43-12 reads as follows, in relevant part

     2C:43-12.   Supervisory Treatment–Pretrial Intervention.

  1. Public policy. The purpose of N.J.S.2C:43-12 through N.J.S.2C:43-22 is to effectuate a Statewide program of Pretrial Intervention.  It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:

(1)   Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or

(2)   Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or

(3)   Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with “victimless” offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or

(4)   Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or

(5)   Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.

  1. (1)  Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant’s amenability to correction, responsiveness to rehabilitation and the nature of the offense.

(2)   There shall be a presumption against admission into a program of supervisory treatment for:

(a)   a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment; [and]

(b)   a defendant charged with any crime or offense involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19) if the defendant committed the crime or offense while subject to a temporary or permanent restraining order issued pursuant to the provisions of the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.) or if the crime or offense charged involved violence or the threat of violence.  For purposes of this subparagraph, a crime or offense involves violence or the threat of violence if the victim sustains serious or significant bodily injury as defined in subsection b. or d. of N.J.S.2C:11-1, or the actor is armed with and uses a deadly weapon or threatens by word or gesture to use a deadly weapon as defined in subsection c. of N.J.S.2C:11-1, or threatens to inflict serious or significant bodily injury ; and

(c) a defendant charged with a criminal animal cruelty offense, as defined in section 1 of P.L.    , c.    (C.          ) (pending before the Legislature as this bill) .

On November 25, 2019, FDA posted 15 warning letters from the Center for Food Safety and Applied Nutrition (CFSAN) or the Center for Drug Evaluation and Research (CDER) stating that certain products containing CBD were illegally labeled as dietary supplements and in many cases were also: unapproved new drugs, misbranded drugs, adulterated human foods, and in some cases were also unapproved new animal drugs and adulterated animal foods.

FDA explains its position about its regulation of CBD containing products in the letters which is also included on this webpage.

FDA has stated that CBD-containing products cannot be sold as Dietary Supplements because they do

not meet the definition of a dietary supplement under section 201(ff) of the FD&C Act, 21 U.S.C. 321(ff).  FDA has concluded, based on available evidence, that CBD products are excluded from the dietary supplement definition under sections 201(ff)(3)(B)(i) and (ii) of the FD&C Act, 21 U.S.C. 321(ff)(3)(B)(i) and (ii). Under those provisions, if an article (such as CBD) is an active ingredient in a drug product that has been approved under section 505 of the FD&C Act, 21 U.S.C. 355, or has been authorized for investigation as a new drug for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public, then products containing that substance are outside the definition of a dietary supplement.  There is an exception if the substance was ‘marketed as’ a dietary supplement or as a conventional food before the new drug investigations were authorized; however, based on available evidence, FDA has concluded that this is not the case for CBD.

As FDA has previously warned, it appears to be focusing on products that are advertised (by label and/or on websites) “for use in the diagnosis, cure, mitigation, treatment, or prevention of disease and/or [are] intended to affect the structure or any function of the body” of a human or animal.  FDA considers these products to be unapproved new drugs or unapproved new animal drugs pursuant to section 201(g)(1) of the Federal Food Drug and Cosmetic Act (FD&C Act), 21 U.S.C. 321(g)(1), stating, that the products intended for use by people:

are not generally recognized as safe and effective for the above referenced uses and, therefore, the products are ‘new drugs’ under section 201(p) of the FD&C Act, 21 U.S.C. 321(p). New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in sections 301(d) and 505(a) of the FD&C Act, 21 U.S.C. 331(d) and 355(a). FDA approves a new drug on the basis of scientific data and information demonstrating that the drug is safe and effective.

There are similar allegations for products intended for use in animals.

FDA considers the human products to be misbranded drugs, pursuant to section 502(f)(1) of the FD&C Act, 21 U.S.C. 352(f)(1), which requires labeling that includes adequate directions for use of drugs labeling of drugs “under which a layperson can use a drug safely and for the purposes for which it is intended.”  (See also, 21 CFR 201.5.).

FDA also warns against the use human and animal products as human or animal food.  FDA has concluded that section 301(ll) of the FD&C Act, 21 U.S.C. 331(ll) prohibits the introduction into interstate commerce any food to which CBD has been added and no exception exists since CBD was not marketed in food before relevant drugs approvals.  FDA also concludes that CBD does not qualify as a food additive or GRAS and has not received premarket approvals.

FDA invites those warned to provide evidence that would call into question FDA’s positions on these topics.

Until those positions change, and/or FDA is successfully legally challenged, CBD products should be carefully labeled and advertised to avoid warnings or worse.

Direct Action Everywhere practices what it calls “Open Rescue” which involves criminal trespass and stealing animals raised by farmers, ranchers and breeders, and believes such conduct should be legal because they are opposed to raising animals for food and biomedical research.

The animals rights group has worked with councilpersons in California to introduce resolutions that support, if not applaud such conduct, as the Right to Rescue, and call for leniency for several members facing criminal charges and potential imprisonment.

The animal rights group reported on its website that the

Berkeley City Council became the first legislative body in history (that we are aware of) to support the #RightToRescue.

On December 10, 2019, the City Council voted for a version of the original resolution submitted, with floor amendments, recorded on the video of the meeting.  DxE is expected to use the resolution to support its position that its members may enter animal facilities if they believe animals are not being humanely treated.   The resolution describes unlawful conduct as laudatory acts to save animals from mistreatment.

148 activists have been arrested in Sonoma County while trying to document the conditions of commercial animal operations and rescue nonhuman animals therein from thirst, starvation, injury, and illness . . .

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Mayor and City Council hereby declare that the 21 individuals being prosecuted in Sonoma County were acting under penal code 597 (e) to provide domestic animals with sufficient food and water and attempting to expose the abuses of nonhuman animals in commercial animal operations.

BE IT FURTHER RESOLVED that the Mayor and City Council encourage the Sonoma County District Attorney to dismiss such prosecution or exercise leniency, and to devote the resources that could be saved from these actions to instead investigate and prosecute potential violations of the law in commercial animal operations in Sonoma County.

If such unlawful conduct were to become accepted by the mainstream and offenders were not properly punished, animal enterprises will be in great jeopardy.

Instead, perhaps these offenses should be considered violations pursuant to the Animal Enterprise Terrorism Act.

A disturbing new trend has been developing on Facebook: raffling off animals. For example, a well-bred registered Quarter Horse yearling was recently offered for sale through a raffle on a local North Carolina equestrian page. The seller offered 100 spots, each selling for $40. Bidders paid the seller directly through PayPal for a slot, and when all of the slots were filled and paid in full, the seller held a random drawing and a winner was announced. The winner got herself a yearling for $40 and the seller pocketed $4,000 for a horse she struggled to sell through traditional avenues at a lower price.

Does this new sales trend seem too good to be true? It is. In most instances, it violates Facebook and PayPal rules, as well as state gambling laws. It also implicates tax issues and raises animal health concerns.

A raffle is a form of gambling. Most states regulate raffles and online gambling. For example, in North Carolina, where I practice, a “raffle” is defined as “a game in which the prize is won by random drawing of the name or number of one or more persons purchasing chances.” N.C. Gen. Stat. § 14-309.15(b).

North Carolina permits only non-profit organizations and government agencies to hold raffles, and those raffles are subject to certain restrictions. N.C. Gen. Stat. § 14-309.15(a). Any person who conducts an impermissible raffle is guilty of a Class 2 misdemeanor. Id. Thus, unless you are a non-profit organization or a government entity, raffling off your animal online is most likely illegal in North Carolina.

Further, because the IRS considers a raffle to be a form of lottery or gambling, there may be reporting requirements and tax withholding requirements. See IRS, Tax-Exempt Organizations and Raffle Prizes – Reporting Requirements and Federal Income Tax Withholding, Notice 1340 (March 2005), available at https://www.irs.gov/pub/irs-tege/notice_1340.pdf.

Both Facebook and PayPal also have rules regarding raffles. Facebook’s guidelines state that “Pages, Groups, and Events must not facilitate or promote online gambling, online real money, games of skill, or online lotteries without our prior written permission.” See Facebook Policies available at https://www.facebook.com/policies/pages_groups_events/. Raffles are not permitted on personal Facebook timelines. Id. PayPal also requires pre-approval to accept payment for activities involving “gambling, gaming, and/or any other activity with an entry fee and a prize.” See PayPal’s Acceptable Use Policy, available at https://www.paypal.com/va/webapps/mpp/ua/acceptableuse-full. PayPal also prohibits the use of its services for activities that violate any law, statute, ordinance or regulation. Id.

Of course, there are also concerns about where your animal may end up when raffled off. Someone who bought a horse for $40 is far less likely to invest in maintaining its health and well-being than someone who bought the horse for $4,000. Thus, before you decide to list your horse for sale through a raffle drawing, ask yourself if that’s the best decision you can make for the animal. At the very least, check your local state gambling laws to make sure it’s even legal and be sure to comply with the online platform’s raffle requirements.

Contact us for questions relating to the sale of your animals, including help drafting sales and lease agreements.

Without clear statutory authority, FDA has proposed to expand its legal authority over veterinarians and veterinary compounding pharmacies in its newly released “Revised Draft Guidance on Compounding Animal Drugs from Bulk Drug Substances,” (#256) as announced on November 19, 2019.

FDA continues to describe the use of certain compounded medications for animals as violations of the Federal Food, Drug, and Cosmetic Act (FD&C Act), which it will not enforce under certain prescribed circumstances.

As stated in Guidance #256

The policies described in this document aim to protect human and animal health by limiting the use of animal drugs compounded from bulk drug substances primarily to situations in which a veterinarian is acting within a valid veterinarian client-patient relationship (VCPR) 3 and there is no medically appropriate drug that is FDA approved, conditionally approved, or on the Index of Legally Marketed Unapproved New Animal Drugs for Minor Species (indexed) to treat the animal.

While FDA states that the “FD&C Act does not generally distinguish between compounding animal drugs from bulk drug substances and other methods of animal drug manufacturing . . . [t]he law permits compounding of animal drugs [only] when the source of the active ingredient is a finished FDA-approved drug, and not a bulk drug substance.”  (Emphasis added).

FDA proposed certain labeling and adverse reporting requirements for drugs compounded pursuant to patient-specific prescriptions for nonfood-producing animals, drugs compounded for office stock for nonfood producing animals, and drugs compounded for use as antidotes for food-producing animals.  Veterinarians administering or dispensing antidotes used for food-producing animals must also provide scientifically-based withdrawal times.

Also, without statutory authority, FDA requests input from the purportedly regulated community about a “List of Bulk Drug Substances for Compounding Office Stock Drugs for Use in Nonfood-Producing Animals or Antidotes for Food-Producing Animals.”

The proposed list includes:

DOGS, CATS, HORSES

Apomorphine hydrochloride – Indication: For the induction of emesis in dogs. Dosage form: 6.25 mg subconjunctival tablets, 3.125-6.25 mg/ml subconjunctival solution, and 2.5 mg/ml injectable solution.

Cisapride – Indication: For management of gastrointestinal disorders in cats, including: general constipation and constipation from megacolon. Dosage form: 2.5 and 5 mg oral tablets or capsules, and 5-10 mg/ml oral suspension.

Dipyrone – Indication: For the treatment of severe, acute fever in Shar-Pei dogs and Shar-Pei mixed breed dogs suffering from Shar-Pei fever. Dosage form: 250 and 500 mg/ml injectable solution.

Guaifenesin – Indication: For muscle relaxation in the horse during anesthetic induction and/or surgery. Dosage form: 50 g soluble powder to be reconstituted into a solution for IV infusion with the addition of 500 ml (10%) or 1000 ml (5%) sterile diluent.

Metronidazole benzoate – Indication: For the treatment of feline inflammatory bowel disease in cats. Dosage form: 80 mg/ml suspension.

Miconazole nitrate – Indication: For treatment of fungal keratitis in horses. Dosage form: 1% or 2% miconazole nitrate ophthalmic solution or ophthalmic ointment.

Potassium bromide – Indication: For initiation of treatment for seizures in dogs. Dosage form: 250 mg/ml oral solution.

Tacrolimus – Indication: For treatment of dogs with keratoconjunctivitis sicca (KCS) that is non-responsive to cyclosporine. Dosage form: 0.01– 0.03% tacrolimus ophthalmic drops.

NON FOOD-PRODUCING MINOR SPECIES

Awaiting nominations

FOOD-PRODUCING SPECIES

Awaiting nominations

Interested parties should submit nominations for additional bulk drug substances as described in the #256 Appendix.

As mentioned in Part 1 of this blog, a district court in Kentucky recently dismissed the appeal brought by Maximum Security’s owners to overturn his first place disqualification in the 2019 Kentucky Derby. Part I of this blog explained the court’s dismissal of the Wests’ state law claims.

The court also dismissed Plaintiffs’ due process claims, primarily on the grounds that the Wests were not deprived of any due process rights. Id. at 9-10. The Due Process Clause prohibits the government from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, 1. To succeed on a due process claim, plaintiffs must necessarily establish that a “life, liberty, or property” interest is implicated. Id. at *10. The Wests failed to make that showing. Id. The Wests argued that they had a protected property interest in any and all of the financial and other benefits that they would have otherwise received if Maximum Security had finished first. Id.

“In order to establish a constitutionally protected property interest in ‘all the financial and other benefits’ of winning the Kentucky Derby, the Wests ‘must point to some policy, law, or mutually explicit understanding that both confers the benefit and limits the discretion of the [state] to rescind the benefit.” Id. The regulations granted the stewards complete discretion in determining whether a foul ‘alters the finish of a race.’ Id. at *11. Where the state’s decision to award or withhold a benefit is discretionary, a party has no property interest in the receipt of that benefit. Id. at *10-11. A party must have more than an expectation or abstract desire for a property interest to exist – he must actually be entitled to that property. Because the racing stewards had discretion to determine to disqualify a horse if a foul occurred, the Wests were never entitled to the financial and other benefits of winning the Kentucky Derby and therefore had no property interest. Id. at *11. Further, the Court found that the Wests did not have to forfeit any money and were never entitled to the purse money because Maximum Security did not win the race. Id. at *12.

An Idaho court applied a similar due process analysis in a Quarter Horse racing dispute. See Idaho Quarterhorse Breeders Ass’n, Inc. v. Ada County Fair Bd., 101 Idaho 339, 342 (1980) (finding that deprivation of “increased purse money, which their horses might win, and the increase in the value of their horses, and an increase in stud fees which their horse may produce…are not property to which plaintiffs have any present title or vested rights.”) (internal quotes omitted).

But all hope is not lost when it comes to challenging racing commission determinations. Courts have found due process interests in other racing commission contexts, such as where a trainer’s license is at issue, where contract rights are deprived, and where a person’s good name, reputation, honor, or integrity is at stake. See, e.g., Mumaw v. Ohio State Racing Commission, 2015 WL 1471945, *5, 8 (N.D. Ohio 2013) (discussing viable due process claims in racing context); Bier v. Fleming, 538 F.Supp. 437, 4N47 (N.D. Ohio 1981), overturned on other grounds, 717 F.2d 308 (6th Cir. 1983) (holding that a trainer has a liberty interest in his occupation and a property interest in his racing license).

Nor are challenges to racing commission determinations limited to due process interests. Depending on the circumstances, other claims may apply such as breach of contract, defamation, and tortious interference with a contract or prospective business.

Fox Rothschild is available to help defend your rights before a racing commission or other equestrian-related entity.

Maximum Security’s owners cannot challenge the Kentucky racing officials’ disqualification of Maximum Security in the Kentucky Derby, according to a recent federal court decision. West v. Kentucky Horse Racing Comm., No. 5:19-211, 2019 WL 6053014 (E.D. Ky. Nov. 15, 2019). As you may remember, Maximum Security finished first in the Kentucky Derby earlier this year, but his first-place finish was unanimously disqualified by the racing stewards after it was determined that the horse interfered with the travel of two other horses during the race. The first-place disqualification was the first in Kentucky Derby history and captivated the American audience and social media for several weeks after the race.

Within days after the race, Maximum Security’s owners, Gary and Mary West, filed a lawsuit seeking to overturn that disqualification and reinstate his first-place finish.

The Wests requested that the Court review the disqualification pursuant to a state statute that governs judicial review of final orders by administrative agencies. See West Compl. 17-29, May 14, 2019, Dkt. No. 1; KRS § 13B.150. This statute provides that the court may overturn an agency decision if it violates the constitution or a statute, exceeds the agency’s authority, is without support of substantial evidence on the whole record, is arbitrary, capricious, or an abuse of discretion, or if it is otherwise deficient (the “judicial review claims”). Id. The Wests also asserted claims alleging various violations of their due process rights under the U.S. Constitution (the “due process claims”) which will be discussed in an upcoming blog. West at *3.

In dismissing the lawsuit last week, the Court held that (1) Kentucky’s regulations make clear that the disqualification is not subject to judicial review, and (2) the disqualification procedure does not implicate a constitutional due process interest. Id. at *1.

As an agency of the state, the Kentucky Horse Racing Commission is authorized “to prescribe necessary and reasonable administrative regulations and conditions under which horse racing at a horse race meeting shall be conducted in this state.” KRS §230.260(8). Racing stewards are charged with the “immediate supervision, control, and regulation of racing at each licensed race meeting on behalf of and responsible only to the commission.” 810 KAR 1:004 § 3.[1]

In determining whether a foul has occurred in a disputed race, “[a] leading horse if clear is entitled to any part of the track. If a leading horse or any other horse in a race swerves or is ridden to either side so as to interfere with, intimidate, or impede any other horse or jockey, or to cause the same result, this action shall be deemed a foul. If a jockey strikes another horse or jockey, it is a foul. If in the opinion of the stewards, a foul alters the finish of a race, an offending horse may be disqualified by the stewards.” 810 KAR 1:016 § 12.

The Court dismissed the judicial review claims on the grounds that the state regulations explicitly provide that the stewards’ decision is final and not subject to appeal. West at *6-7. Section 4 of 810 KAR 1:017 (“Section 4”) requires stewards to:

  1. Make all findings of fact as to all matters occurring during and incident to the running of a horse race;
  2. Determine all objections and inquiries based on interference by a horse, improper course run by a horse, foul riding by a jockey, and all other matters occurring during and incident to the running of a race; and
  3. Determine the extent of disqualification, if any, of horses in a race for a foul committed during the race.

810 KAR 1:017 § 4(1)(a)-(c). These findings and determinations are “final and shall not be subject to appeal.” Id. § 4(2). Prior state case law had determined that this regulation is dispositive on the issue of appeal. See March v. Kentucky Horse Racing Comm., No. 2013-CA-000900-MR, 2015 WL 3429763, 2 (Ky. Ct. App. Feb. 10, 2016) (determining that Section 4 provides that the stewards’ decision to disqualify a horse is “final and non-appealable”). Further, Chapter 13B.150 states that only “final orders” of an agency are subject to judicial review. West at *7. A “final order” must be a final disposition of an administrative hearing. KRS § 13B.010(6). The stewards’ decision was not the product of an administrative hearing. West at *7. Thus, because the Wests have no right to judicial review of the disqualification, the court dismissed the judicial review claims. Id.

In a statement to the media last week, Gary West expressed his intent to file an appeal of the dismissal. He feels the decision puts stewards above the law. West stated “[t]he transparency and reviewability of decisions by stewards is essential to the integrity of racing in America and is critical to the public’s confidence in the sport. Sadly, the Court’s Opinion allows secret deliberations by Kentucky’s stewards that affect millions of people and billions of dollars to forever go unreviewable by any court; indeed, by anyone, no matter how negligent, reckless or nefarious such secretly made decisions may be.”

Part 2 of this blog post will cover the court’s dismissal of the Wests’ due process claims.

The district court decision can be found here.

The West Complaint can be found here.

Gary West’s Statement can be found here.

 

Our Animal Law practice group has experience in representing parties in horse racing commission disputes and can assist in navigating the laws implicated by such disputes.

[1] Amendments to Kentucky’s horse racing regulations went into effect on May 31, 2019, after the Kentucky Derby. The Court cited to the regulations in effect at the time of the race and this blog post does the same.

As reported by the Associated Press on November 7, 2019, Sandra, a 33-year-old orangutan that was granted legal personhood by a judge in Argentina has moved to the Center for Great Apes in central Florida after being quarantined at a different zoo in Kansas, upon importation.

Judge Liberatori reportedly ruled that Sandra is legally a non-human person, and is “entitled to some legal rights enjoyed by people, and better living conditions [because the Judge] wanted to tell society something new, that animals are sentient beings and that the first right they have is our obligation to respect them.”

If Sandra was declared a non-human person in Argentina—person being the notable term—what is she to be considered in the US?  Presumably, she entered the US with an international health certificate for animals and not a visa or other document used for the entry of non-US citizens.  She was quarantined at the Sedgwick County Zoo in Kansas, a process not typically required for humans (although there was the nurse quarantined in New Jersey after she was exposed to Ebola patients in West Africa).

 

It will be interesting to see what animal activist groups will make of Sandra’s status in the US.  I would expect there to be an attempt to apply her status in Argentina here in the US, under an international long arm statute or similar legal argument if any apply.