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FTC: Latest Anti-HISA Suit Doesn’t Come ‘Within a Furlong’ of Demonstrating Harms

The Arkansas-based lawsuit filed six weeks ago that is the most recent among five separate federal complaints attempting to derail the Horseracing Integrity and Safety Act (HISA) via alleged constitutionality claims was broadly rebuffed Monday in separate legal filings by the defendants in the case, who are executives with the HISA Authority and the Federal Trade Commission (FTC).

The plaintiffs, led by Bill Walmsley, president of the Arkansas Horsemen's Benevolent and Protective Association (HBPA), and Jon Moss, the executive director of the Iowa HBPA, had asked a judge in United States District Court (Eastern District of Arkansas, Northern Division) on Apr. 6 to declare HISA unlawful and to impose an injunction prohibiting the defendants from enforcing the Anti-Doping and Medication Control (ADMC) rules scheduled to go into effect May 22.

The HISA Authority's opposition brief stated that the plaintiffs in this case, much like those in the other four cases currently swirling in the federal court system, represent only “a faction of the industry long opposed to any change” who continue to “search for a favorable forum” by essentially making similar arguments in front of different judges.

And, the HISA Authority's filing pointed out, both Walmsley and Moss are already involved as parties who have taken various legal actions in three of the other four anti-HISA cases.

“Apparently discontent with those courts' rulings, the Iowa HBPA, Walmsley, and Moss now seek the same extraordinary relief here,” the HISA Authority's May 15 filing stated.

The HBPA-affiliated plaintiffs wrote in their complaint last month that HISA “barely pretends to comply with the Constitution's separation of powers. The Act allows a private corporation to issue binding rules with no guiding principle. The FTC's ostensible oversight serves as a mere mirage.”

The HISA Authority saw the situation differently in its filing.

“The vast majority of industry participants and horseracing states have welcomed the uniform national standards, which took effect on July 1, 2022. Two [presidential] administrations have now supported the law and two bipartisan Congresses have embraced it–including through a statutory amendment that reinforced the Act's constitutionality in December 2022,” the HISA Authority's filing stated.

“Plaintiffs come nowhere near the showing required for a court to dismantle this critical federal regulatory program. Most notably, Plaintiffs cannot demonstrate a likelihood of success on the merits: All four federal judges that have considered Congress's recent amendment to HISA have concluded that the Act is constitutionally sound,” the HISA Authority's filing stated.

“Plaintiffs next rely on a meritless public nondelegation claim that the challengers in the other cases wisely abandoned, or did not consider worth [pursuing], in light of the clear intelligible principles Congress provided,” the HISA Authority's filing stated.

“And Plaintiffs' final claim under the Appointments Clause is contradicted by the undisputed fact that the Authority is not a governmental entity [and] by the decisions of the two federal courts that have already denied the same Article II claim,” the HISA Authority's filing continued.

“None of the other preliminary injunction factors favor Plaintiffs, either. Plaintiffs fail to show irreparable harm: They have been subject to HISA's racetrack safety rules for over 10 months and to similar anti-doping rules under State law for years; purses in Arkansas and Iowa have surged; and the racing season in Arkansas has now ended,” the HISA Authority's filing stated.

“The balance of harms and the public interest also weigh heavily against disrupting a federal regulatory scheme that Congress has mandated (twice) and that has enjoyed substantial compliance already,” the HISA Authority's filing stated. “This Court should deny Plaintiffs' motion for a preliminary injunction.”

The FTC's May 15 filing put it this way: “[The plaintiffs] do not come within a furlong of demonstrating, with evidence, that any purported 'harm is certain and great and of such imminence that there is a clear and present need for equitable relief.'”

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NHBPA Again Goes to Court to Try and Halt May 22 ADMC Launch

With another appeal in the pipeline for its constitutionality lawsuit that is trying to derail the Horseracing Integrity and Safety Act (HISA), the National Horsemen's Benevolent and Protective Association (NHBPA) has once again asked a federal judge in Texas to grant in injunction that would delay the May 22 implementation of the HISA Authority's Anti-Doping and Medication Control (ADMC) program.

The motion for injunction pending appeal was filed on Friday, one day after United States District Court Judge James Wesley Hendrix ruled that the revamped version of HISA that got signed into law back in December was indeed constitutional, clearing the way for the ADMC's thrice-delayed launch.

On Monday, May 8, Hendrix sped along the litigation process by ordering the defendants in the case, who are personnel from the HISA Authority and the Federal Trade Commission (FTC), to file a response to the NHBPA's injunction request by Thursday, May 11.

“The Court previously denied injunctive relief, but the plaintiffs again request an injunction, arguing that they will be injured by the ADMC rule during the pendency of an expected appeal,” Hendrix wrote.

The May 5 filing by the NHBPA explained the reasoning behind the request this way:

“An injunction is necessary because the industry cannot endure 'seismic change' in the short term that is undone shortly thereafter. The courts should not put the industry on a roller-coaster where the ADMC rules are in effect from May 22 to, say, Nov. 18 (the date of the last Fifth Circuit decision), and then they go out of effect again if the Fifth Circuit finds the amended law unconstitutional.”

The NHBPA filing continued:

“This Court has now considered the case a second time, and again the Court has upheld the act. Though the Court ultimately concluded the Horsemen did not present a winning case, it should conclude that at minimum they presented a substantial case, which is less than successful, but more than non-negligible.

“[The NHBPA] won at the Fifth Circuit last time around, with arguments the Sixth Circuit panel would have also adopted as to the original version [of the HISA law]. They have returned to this Court with a serious case as to the amended version of the statute. Though they did not win, they have at least established a 'fair prospect' or reasonable possibility of success on appeal…”

“Moreover, the Horsemen have presented additional arguments concerning the budget and the original meaning which also plausibly demonstrate that the FTC does not have pervasive surveillance and control over the Authority,” the May 5 filing stated.

Hendrix was the same judge who, back on March 31, 2022, dismissed the NHBPA's underlying lawsuit. The NHBPA plaintiffs appealed that decision, leading to the Fifth Circuit's reversal on Nov. 18, 2022. But the Fifth Circuit remanded the case back to the Lubbock Division for “further proceedings consistent with” the Appeals Court's reversal. Hendrix's May 6, 2023, order validated the newer version of HISA that got amended and passed into law back on Dec. 29, 2022.

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HIWU Issues Statement On Dietary Supplements

Edited Press Release

The Horseracing Integrity & Welfare Unit (HIWU) calls the Thoroughbred industry's attention to regulations regarding the possession and use of dietary supplements under the Horseracing Integrity and Safety Authority (HISA)'s Anti-Doping and Medication Control (ADMC) Program.

The ADMC Program permits the possession and use of dietary supplements such as vitamins, minerals, herbs, and homeopathic products. Under the Federal Food, Drug, and Cosmetic Act, such products are not considered drugs, and therefore do not require approval from the Food and Drug Administration (FDA). However, Covered Persons should be aware that dietary supplements are not regulated, and that positive test results stemming from the presence of a prohibited substance in a supplement, whether or not it was properly labeled, will be prosecuted by HIWU as ADMC Program violations.

The FDA defines a drug, in part, as a “substance that is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease.” Consequently, supplements with “drug claims” on the label, e.g., “treats ulcers,” “mitigates bleeding,” or “prevents tying up,” are considered unapproved animal drugs that lack FDA approval. All drugs that are not approved by the FDA are categorized as Banned Substances (S0) under the ADMC Program.

However, HIWU is instituting a 30-day grace period for the possession of supplements with labels that make such prohibited drug claims.

Through Apr. 30, 2023, HIWU will not prosecute Covered Persons for the possession of supplements with labels that include drug claims. However, if a Covered Horse receives a positive test result for a Prohibited Substance as a result of the use or administration of one of these products, HIWU will prosecute the positive test result as an ADMC Program violation.

HIWU recommends that supplement manufacturers ensure that product labeling and website information are in compliance with FDA requirements for dietary supplements. They should also contact any vendors, distributors, or other clients to replace or relabel inventory as needed.

Questions about dietary supplements should be directed to Dr. Mary Scollay, HIWU's chief of science, at mscollay@hiwu.org.

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