By Laura Donnellan, School of Law, University of Limerick, Ireland
A recent study carried out by Swiss-based researchers has found that, in samples taken from twenty-eight types of horse feed, eighteen tested positive for prohibited and controlled substances. The findings were published online in German, with the abstract in English (C. Herholz, N. Zink, H. Laska, M. Gumpendobler, Charles Trolliet, S. Probst, “Dopingrelevante Substanzen in Futtermitteln für Pferde”, (2017) 159 (4) pp.231-235, DOI: https://doi.org/10.17236/sat00112).
The research was undertaken in response to three high profile failed drug tests in 2015 involving two Swiss jumping riders whose horses tested positive for banned and controlled substances (at p.232). The two riders, Guerdat and Bichsel, were subsequently cleared when it was found that the failed tests were attributed to poppy seed contamination of their food.
At an event in France in May 2015, Guerdat’s mount, Nino des Buisonnets, tested positive for the banned substances of codeine and oripavine, and morphine, a controlled substance. At the same event, Guerdat had ridden Nasa, whose sample yielded an adverse analytical finding for codeine and morphine. Nasa’s sample also contained trace amounts of oripavine; however, the amount found was not of the requisite level for a doping infraction to have been committed.
Bichsel’s mount, Charivari KG, at a different event in France in May 2015, tested positive for codeine, oripavine and morphine.
In July 2015 Guerdat and Bichsel were informed by the FEI (the Fédération Equestre Internationale), the World Governing Body of Equestrianism, that their respective horses had tested positive for banned and controlled substances. The FEI informed the riders that the samples tested at the FEI-accredited LGC Newmarket Road Laboratory in Cambridgeshire, UK, had been found to contain prohibited substances under Article 2.1 of the Equine Anti-Doping Regulations (see Alessandra Bichsel/SUI, Decision of the FEI Tribunal, 25 Sept. 2015, https://inside.fei.org/system/files/2015-BS04%20-%20CHARIVARI%20KG%20-%20FEI%20Tribunal%20Decision%20-%2025%20September%202015.pdf and Steve Guerdat/SUI, Decision of the FEI Tribunal, 18 Sept. 2015, http://inside.fei.org/system/files/Case%202015-BS02%20-%20NASA%20-%202015-BS03%20-%20NINO%20DES%20BUISSONNETS%20-%20Final%20Tribunal%20Decision%20-%2018%20September%202015.pdf).
A preliminary hearing via teleconference was held on the 23 July 2015 in relation to Guerdat and Bichsel’s case was heard the following day. (“FEI Tribunal lifts provisional suspensions on Guerdat and Bichsel”, 27 Jul. 2015, https://inside.fei.org/news/fei-tribunal-lifts-provisional-suspensions-guerdat-and-bichsel). Both riders had their suspensions lifted as the FEI Tribunal was satisfied that the positive tests were the result of contaminated horse feed. However, the two-month suspension placed on the horses was upheld on the grounds of animal welfare, which is an established policy of the FEI (see Laura Donnellan, “Doping and equestrian: Fédération Equestre Internationale and the lifting of eleven provisional suspensions” (2017) 8 (2) Global Sports Law and Taxation Reports 42-45).
Both riders appealed the two-month suspension of their horses; however, the FEI Tribunal dismissed the appeals, with leave to appeal to the Court of Arbitration for Sport (CAS) within 21 days of the decision. The riders also had the results achieved at the events quashed, including the forfeiture of medals, points and prizes.
Contaminated horse feed is a common occurrence: for example, the Queen of England’s horse Estimate tested positive for a banned substance after coming second at the Gold Cup at Ascot in 2014. Estimate was found to have morphine and oripavine present in his urine sample, in breach of the British Horseracing Authority (BHA) Rules of Racing. It was subsequently found that the feed had been contaminated by poppy seeds as the manufacturer of the food (Alfalfa Oil Plus), Dodson & Horrell Limited, was situated near a field of poppies. As with the FEI, the BHA overturned the qualification and the prize money of £80,625 prize-money £80,625 was forfeited to Missunited, the horse which originally finished third (see Laura Donnellan, “Sowing the poppy seed of doubt: Recent failed drug tests in British horseracing”, (2014) 5 (4) Global Sports Law and Taxation Reports 35-38).
The study carried out by Herholz et al examined domestically produced food as well as imported horse food, with sixteen samples taken from food manufactured outside Switzerland and twelve from Switzerland (“Dopingrelevante Substanzen in Futtermitteln für Pferde”, at p.232). The commercial feed was found to have traces of nine banned and controlled substances under the Equine Anti-Doping and Controlled Medication Regulations (EADCMR) of the FEI. All nine substances originate from plants, trees, leaves or seeds that are found in nature. The study found that five of the samples contained substances derived from the poppy plant (or “Mohn” in German):
- Morphine, pain medication (controlled);
- Thebaine, a stimulant (banned);
- Codeine, pain medication (controlled);
- Noscapine, cough suppressant (banned); and
- Papaverine, a muscle relaxant (banned)
Four other substances were found to have naturally occurring properties, including guarana, from the maple plant, kola nut (“die Kolanüsse”); cocoa (“der Kakao”) from the kola tree; caffein; tea leaves (“die Teeblätter”); mandrake, the root of a plant (“die Alraune”); angel’s trumpet, a plant (“die Engelstrompete”); deadly nightshade, a poisonous plant (“die schwarzer Nachtschatten”); banewort, a poisonous plant (“die Tollkirsche”); and colchicum autumnale, or more commonly referred to as autumn crocus or meadow saffron, a toxic flowering plant (“die Herbstzeitlose”). The researchers (at p.232) list the following:
- Theobromine, found in chocolate and tea, a diuretic and stimulant (controlled);
- Theophylline, found in tea and cocoa, used for the treatment of respiratory diseases (a specified substance under the FEI regulations which means that it recognises that a horse could ingest a substance through contaminated food. If a horse tests positive for a specified substance, the application of a provisional suspension is not automatic);
- Atropine, found in a number of plants including deadly nightshade, an hallucinogenic (controlled); and
- Colchicine, found in meadow saffron, used to treat gout, (banned).
To put the study into context, the FEI is most vociferous in its call for a “Clean Sport” (http://inside.fei.org/fei/cleansport/horses). The FEI Equine Anti-Doping and Controlled Medication Regulations (EADCMRs) are divided into two categores: the Equine Anti-Doping (EAD) Rules and the Equine Controlled Medication (ECM) Rules (http://inside.fei.org/sites/default/files/2016%20EADCMRs%20-%20Effective%201%20January%202016%20-%20Clean%20Version_0.pdf.). The banned substances and controlled medication are collectively referred to as the Prohibited Substances. The most recent EADCMRs took effect on 1 January 2016.
A violation of the EADCMRs is a strict liability offence (Article 2.1.1 of the EAD Rules). It applies to the “Person Responsible” (PR), which includes the rider and also support personnel in certain circumstances (Article 2.2-2.8). It is not necessary to demonstrate intent, fault, negligence or knowing use of a prohibited substance. The use or attempted use of a banned substance or a banned method is provided for under Article 2.2. With regard to the use of a banned substance, the PR has a personal duty, along with support personnel, to ensure that no prohibited substance enters the horse’s body or that any banned method is used. However, in the case of attempted use of a banned substance or of a banned method, it is necessary to show intent. Success or failure of either the use or attempted use of a banned substance or method is irrelevant (Article 2.2.2).
With regard to control medication substances, it is a violation of the EADCMRs if the substance is present at the time of an event in the absence of a valid Veterinary form (Article 2.1 of the ECM Rules). It should not be given to the horse close to or during an event “unless the appropriate FEI guidelines for medication authorisation have been followed”. The FEI contend that the ECM rules are based on a distinctive and core characteristic of the human/horse partnership that equestrianism imbues, namely that the horse is unable to speak and it is the role of the FEI to speak for and protect the horse.
Under the ECM rules, a controlled medication may be given to a horse; however, it must be “fully justifiable based on the medical condition of the horse”. If a horse is unable to compete due to injury or disease, the horse must be provided with appropriate veterinary treatment and rest (or recovery period). While there is some flexibility with regard to controlled medication (subject to certain conditions), a prohibited substance is a violation of the EAD rules.
The study found that 64% (18 of the 28) samples of commercial horse feed were contaminated. Five of nine analysed samples of oats (“die Hafen”) was found to have morphine, codeine, noscapine, papaverine and colchicine while alfalfa (“die Luzerne”, a flowering plant from the pea family) was found to have traces of codeine, noscapine, papaverine, atropine and colchicine (at p.233). Wheat pollard contained in pellet horse feed was analysed with the results showing four prohibited substances: noscapine, theobromine, atropine and colchicine (at p.233). Soybean meal, usually used as a supplementary horse feed (“das Sojaschrot”), was shown to contain three prohibited substances: noscapine, theobromine and colchicine (at p.232). Even, hay (“die Heu”), a basic element of a horse’s diet, was found to have traces of: noscapine, papaverine and atropine. In barley samples, noscapine was discovered. The researchers interestingly found that poppy seeds, which were harvested using machinery, had a higher concentration of morphine than poppy seeds processed by hand (pp.233-234). The study concluded that, even with the most careful and up-to-date methods of processing, horse feed can be easily contaminated by prohibited and controlled substances. In all the samples analysed, the amount was not of a level that would adversely affect a horse’s health.
Whilst the study has demonstrated the prevalence of contaminated horse feed, the FEI has an established policy of suspending the horse for two months on the grounds of animal welfare. Going forward, any future incidences of contaminated horse feed will most likely exonerate the rider with the exception of their forfeiting qualifications/records/medals/prizes; the welfare of the horse will remain a concern for the FEI.
The requirement of a more rigorous testing of food to be carried out before a horse is fed would be both costly and arduous, given that feed, such as hay, is a staple of the horse’s diet. The study did not state what other countries were involved in the analysis; it is not clear whether they were EU-based companies or outside the EU or a mixture of both. The result of 64% of the samples containing prohibited and controlled substances is worrying; however, Dr Herholz, one of the researchers, contends that the amounts are so minute that, in the case of morphine found in one oat sample, “in order for the horse to have a visibly bodily reaction, he would need to consume 2,083 kilograms (more than 4,500 pounds) of those oat grains” (Christa Lesté-Lasserre, “Study Evaluates Banned, Controlled Substances in Horse Feed”, The Horse, 15 Aug. 2017, http://www.thehorse.com/articles/39549/study-evaluates-banned-controlled-substances-in-horse-feed). In the study, the researchers contend that a 500 kg horse would need to ingest 250mg of morphine in order for it to have any effect (at p.234).
With the effect on the horse aside, the strict liability nature of equine doping means that an adverse analytical finding constitutes a doping infraction and it is conceivable that contaminated hay could result in a two-month suspension of a horse, as well as the consequences for the rider in relation to forfeiture of results.
More research needs to be carried out on the levels of contamination in order to assuage the disquiet that this study has unearthed.
Laura Donnellan may be contacted by e-mail at ‘Laura.Donnellan@ul.ie’