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FTC Delays Implementation of HISA’s Drug and Doping Program

In an order Monday, the Federal Trade Commission (FTC) announced that the Horseracing Integrity and Safety Act's (HISA) anti-doping and medication control (ADMC) program would not go into effect as scheduled Jan. 1 due to swirling legal uncertainty.

“The bedrock principle of the Act is the need for uniformity,” wrote the FTC in the order, adding that “the Commission's approval of the Anti-Doping and Medication Control proposed rule would not result in uniformity because the Horseracing Integrity and Safety Act has been held unconstitutional by a panel of the United States Court of Appeals for the Fifth Circuit.”

Oral arguments similarly surrounding HISA's facial constitutionality were held last week in a separate case before the Sixth Circuit Court of Appeals.

“The Commission therefore disapproves the proposed rule without prejudice. If the legal uncertainty regarding the Act's constitutionality comes to be resolved, the Authority may resubmit the proposed rule or a similar rule, and the Commission will consider all comments filed in this proceeding as well as any updated or new comments and filings.

“In the meanwhile, and until any future proposed rule on the subject is approved by the Commission, State law will continue to regulate the matters that the proposed rule would have covered,” the order states.

According to HISA's CEO Lisa Lazarus, who held an impromptu press conference Monday afternoon, this means that the current regulatory “status quo” will remain in place at the start of 2023.

“They made reference to the fact that, since the FTC has not approved any ADMC rules under HISA's authority, that means all the state rules remain in full force and effect,” said Lazarus, stressing that this was her “interpretation” of the FTC order.

“If there wasn't a clear statement on this issue quickly, then we might get to Jan. 1, and there might be some uncertainty around who actually has the authority. It's important for the states to know now that they're going to continue to be the ones in charge of testing on Jan. 1,” Lazarus added.

When it comes to the financial implications from Monday's announcement, HISA will refrain from collecting any of the 2023 fee assessments, designated for the individual states or, alternately, the racetracks, said Lazarus.

“The vast majority of those fees relate to the anti-doping program,” said Lazarus, explaining that the 2023 fees will be collected once the legal uncertainty has been resolved.

“There are still assessments being paid for 2022 that obviously are still required for the state racing associations who opted in, and the racetracks to cover, because those costs have already been incurred, or are in the process of being incurred,” she added.

Ben Mosier, executive director of the Horseracing Integrity & Welfare Unit (HIWU), the enforcement arm of HISA's ADMC program, released a statement explaining that HIWU will continue its education and outreach efforts “to all stakeholders in the Thoroughbred industry,” despite the delay in implementation.

“As HISA re-submits the draft ADMC rules for the FTC's approval, HIWU will use any additional time before implementation as an opportunity to ensure the industry is even more prepared for an efficient rollout of this Program, which will promote fair competition in the sport of Thoroughbred racing and the safety and welfare of our human and equine athletes,” wrote Mosier.

According to Lazarus, “So long as that preparatory work doesn't extend beyond two to three months, [HIWU's work] would still be covered by the 2022 budget.” However, “if it extends longer, we would have to revisit that issue.”

As for potential timelines moving forward, Lazarus explained that once the ADMC rules have been resubmitted with the FTC, it would take approximately 60 days for them to then go into effect, “assuming that the FTC was going to approve them substantively.”

Lazarus also broached a number of different scenarios in what appears to many in the industry a swirling morass of unpredictability and confusion.

Last month, the Fifth Circuit Court of Appeals found the law facially unconstitutional due to the lack of rule-making authority ceded to the FTC. That mandate is set to go into effect Jan. 10.

But if HISA is able to secure a stay on the Fifth Circuit's ruling in the interim, “we would then go back to the FTC [with the ADMC rules] and seek approval on that basis,” said Lazarus.

A similar case questioning HISA's constitutionality is also before the Sixth Circuit Court of Appeals. According to Lazarus, a ruling in the Sixth Circuit is expected “in the next month or two.”

If the Sixth Circuit issues a ruling favourable to HISA, “it would potentially give us the ability to continue with our program in those jurisdictions the Sixth Circuit covers,” said Lazarus.

“And it would also potentially lead to the [U.S.] Supreme Court hearing the case,” said added.

Nevertheless, even if the Sixth Circuit issues a friendly ruling on HISA, the FTC still might prove reluctant to allow HISA's ADMC to go into effect in those jurisdictions as the new law wouldn't be implemented uniformly, said Lazarus.

“For that reason, it's very possible the FTC would maintain the position that we shouldn't resubmit our rules until we have clear ability to move forward and launch across the whole country,” said Lazarus.

Another potential fix to the current knot of legal problems is a congressional re-write of the rules to cede more rule-making power to the FTC. Lazarus declined to speculate on the likelihood and possibility of that option.

A number of experts have questioned whether the legal uncertainty surrounding HISA's constitutionality puts into jeopardy the law's racetrack safety rules, already in effect. Lazarus said that Monday's order has no effect on the racetrack safety prong of the program.

“This related solely to the ADMC rules, and also, it was not a substantive review,” said Lazarus. “It was a statement on their perspective with regards to the legal uncertainties and ensuring there's clarity before we launch the new program.”

Ed Martin, the Association of Racing Commissioners International's (ARCI) president and CEO, referenced a letter the organization sent last week to the FTC highlighting “a real Catch-22” come Jan.1 concerning the legality of HISA's ADMC program.

“We are appreciative that the FTC listened and considered the request of the Association of Racing Commissioners International not to create regulatory uncertainty on Jan. 1 by approving the proposed HISA rules,” Martin told the TDN.

“Whoever got brought up on a charge could potentially have appealed it ad nauseam, and maybe win, which means there might be no rules in effect. That was the danger here,” Martin speculated. “They might be mad at me for bringing it up, but it needed to be brought up.”

The following is HISA's full statement in response to the FTC order:

“HISA appreciates the Federal Trade Commission's (FTC) decision to deny HISA's draft Anti-Doping and Medication Control (ADMC) rules without prejudice as we actively seek to resolve current legal uncertainties. HISA is eager to launch Thoroughbred racing's first and long-awaited national, uniform ADMC program and stands ready to do so. We will re-submit the draft ADMC rules to the FTC for their review as soon as these legal uncertainties are resolved, and once approved, we will implement the program through the Horseracing Integrity and Welfare Unit (HIWU). In the meantime, HIWU will continue to work toward the implementation of a uniform, independent anti-doping and medication control program that is administered consistently and fairly across the United States.”

In a statement, National HBPA CEO Eric Hamelback wrote, “The recent FTC decision is another positive step forward for horsemen in our battle against the unconstitutional takeover of our industry. The strength of our legal arguments led to a unanimous decision in the Fifth Circuit, and now the FTC has done the right thing in declining to defy a federal court that has found HISA unconstitutional. The FTC order is clear: state law continues to govern medication issues until our final victory in this case.”

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HISA CEO at Symposium: ‘To External Threats, We Need to Speak in One Voice’

Lisa Lazarus, the chief executive officer for the Horseracing Integrity and Safety Authority (HISA), on Tuesday made an appeal for sport-wide unity with United States racing on the cusp of a Jan. 1 roll-out of HISA's Anti-Doping and Medication Control rules.

“I want you to think about what this sort of change is going to mean for the industry,” Lazarus said. “It's going to look and feel different, and it's going to allow us to say to those that are our detractors, to those that doubt horse racing is clean, 'Look, we now have a rigorous, comprehensive program that is uniform; where laboratories are harmonized.'”

Lazarus made her remarks as part of the kickoff to the 2022 Global Symposium on Racing hosted by the University of Arizona Race Track Industry Program in Tucson, Arizona. She briefly acknowledged, but did not dwell upon, the looming legal fight that HISA faces that could derail its very existence.

The U.S. Court of Appeals for the Fifth Circuit on Nov. 18 ruled that HISA is unconstitutional, and the Sixth Circuit Appeals Court will hear oral arguments Dec. 7 in a similar case that also seeks to reverse a lower court's decision to dismiss a constitutional challenge.

Although petitions for legal stays, rehearings, or potential actions by Congress are all in play for the near future, HISA is otherwise operating in business-as-usual mode until an expected Jan. 10 mandate gets issued by the Fifth Circuit to enforce its order. So in that spirit, Lazarus kept her Dec. 6 remarks forward-focused.

“One of two things are going to happen,” Lazarus said. “Either we're going to be able to show, and I think we will, that the vast majority of racehorses are competing clean. And if we have [drug] positives, we'll be able to show that we're now taking significant action, that we're now on our own initiative cleaning things up. So this, to me, is a game-changer.”

Lazarus said she would like industry stakeholders to think of HISA as a “stabilizer.” She gave the analogy of a stable stock market, in which that stability allows growth to occur.

Lazarus also mentioned a couple of ways in which she didn't want stakeholders to think of HISA: Not, she said, as an entity “making rules that complicate people's lives. Not to being sort of a top-down regulator. But genuinely helping to grow the industry through creating uniformity; through creating this protective sheath around issues of integrity and safety.”

Wrapping up, Lazarus underscored the need for unity.

“We need to be united as an industry. We can fight, and scream, and yell, and debate and malign behind closed doors. But to the outside public, to the external threats, we need to speak in one voice,” Lazarus said.

“This is our moment in time. This moment is very unlikely ever to replicate itself,” Lazarus said. “We can't lose this moment in time.”

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No Matter Which Way HISA Goes, CHRB Confident on Rules Consistency

Despite a near-term national forecast clouded with uncertainty over last week's United States Court of Appeals order declaring the Horseracing Integrity and Safety Act (HISA) to be unconstitutional, California Horse Racing Board (CHRB) commissioners on Tuesday expressed confidence their state will be able to weather the projected turbulence over HISA's in-limbo legality better than other jurisdictions.

The reason, according to staffers and commissioners who spoke during the Nov. 22 monthly meeting, is that the CHRB has been proactively advancing safety and medication rules for the past few years, and a number of those regulations eventually got adopted as models for HISA rules.

So if or when an expected mandate for HISA to cease operations gets handed down by the Fifth Circuit on that mandate's Jan. 10 due date, the CHRB will essentially just go back to relying on a similar, in-state framework of rules that aren't too different from HISA's.

“We've been participating with HISA. We've been supporting them. We will continue to do so until told otherwise,” said the CHRB's equine medical director, Dr. Jeff Blea.

But, Blea added, “It's nice to know [that] in all actuality, HISA's safety program and medication rules are not that far different from where California is.”

Mindful that a Pandora's box of varying legal and political scenarios could still affect the future of HISA between now and when HISA's Anti-Doping and Medication Control rules go into effect Jan. 1, the CHRB voted 4-0 on Tuesday to opt in to the 2023 voluntary implementation agreement that encompasses national oversight by both the HISA Authority and the Horseracing Integrity and Welfare Unit (HIWU), which will enforce the new drug rules.

“Just to clarify, HISA medication rules go into effect Jan. 1, and the court [mandate] is Jan. 10. So those 10 days for sure, we're operating under the medication rules of HISA,” said chairman Gregory Ferraro, DVM. “And then, depending on what [a higher-court ruling or a legal stay or Congressional action] is, we go from there.”

Blea described to commissioners how he was in attendance at the annual convention of the American Association of Equine Practitioners (AAEP) in San Antonio, Texas, on Nov. 18 when news first broke about the HISA unconstitutionality ruling.

Blea said the convention was “fully staffed” with HISA Authority executives at that time, including HISA chief executive officer Lisa Lazarus and HIWU executive director Ben Mosier.

“Thirty minutes prior to the start of the meeting the announcement came out, so it was just a little bit of everybody [being] on their heels,” Blea said. “Their approach was, 'We're moving forward, we're pressing on, we'll discuss these issues with veterinarians and the veterinary community.'

“So right now it's 'business as usual,'” Blea continued. “Everyone's seen what's in the mainstream press, and it's an attorneys' field day. As it stands now, from a medication standpoint, we'll be under HISA rules for 10 days [in 2023] depending on what the courts rule. Same thing with the safety standards.”

Blea noted that even as the AAEP convention unfolded amid the legal blow to HISA, the CHRB was repeatedly referenced during a keynote address for being ahead of the curve on equine safety and welfare initiatives.

And during the professional meet-and-greet portions of the convention, Blea said he repeatedly had his brain picked by colleagues who wanted advice on how to introduce CHRB-styled reforms in their home states.

Amanda Brown, the CHRB's staff counsel, offered a legal perspective on HISA's possible path forward–or what happens if that entity is forced to shut down. She noted that a separate Court of Appeals case over HISA's constitutionality has arguments pending Dec. 7, this time in the Sixth Circuit.

“So there is a chance that the judge there rules [that HISA is] constitutional [and] we have two competing decisions,” Brown said. “Ultimately, I expect they'll ask the Supreme Court to review it.”

But in the meantime, Brown said, “Everything from HISA says that they're still going to roll out the Anti-Doping and Medication Control program Jan. 1 [and] HISA has indicated that they are going to exhaust every avenue to either get a stay or a reconsideration before that time. So it's kind of up in the air what's going to happen.”

Prior to the unanimous vote on the issue, Ferraro asked Brown is there was any legal downside to opting into the HISA and HIWU agreements in the event that those entities do get shut down. According to the HISA budget, California's financial assessment for 2023 is $7,344,139.

“I can't speak to the [CHRB's] payment portion of that, but no, the agreement would be void and there would be nothing for us to enforce,” Brown said. “We'd go back to our California rules, pre-HISA. Which for us, is probably easier than other states.”

Cynthia Alameda, the CHRB's deputy executive director, picked up on the topic of assessments where Brown left off.

“We're collecting payments currently for the first assessment [that covered the final six months of 2022],” Alameda said. “They're coming in a little bit behind, so I don't think that it would be difficult for us to kind of regroup and ensure that all of our stakeholders didn't pay any fees that were unnecessary.

“So I don't think there is any negative in entering into the agreement,” Alameda continued. “It also gives our stakeholders an opportunity to come back in December to present how they would like to fund the assessments. They did it through market access fees on the first assessment, so I'm sure they would need to present that to us as well, just so we're ready in January if everything goes forward.

“If HISA [being] unconstitutional [was upheld], we would cease collecting funds,” Alameda said. “I don't know what would happen with the ones that have already been paid for the first six months, because it was kind of to handle the setup costs, so I don't think those would be recouped. That's just me guessing, though.”

Blea added at a different point in the meeting that there is one difference in the CHRB and HISA rules that he is actively trying to address before it becomes an on-track issue in 2023.

“The confusion for veterinarians is detection time versus thresholds,” Blea said. “The [HISA] detection times are based on a European model. So I'm going to recommend people push their medication administrations back further, and I'm in the process of doing some calculations and trying to figure it out to give them some information proactively to avoid any problems.”

The four CHRB commissioners voting unanimously for the HISA opt-in were Ferraro, Oscar Gonzales, Damascus Castellano and Brenda Washington Davis.

Commissioners Dennis Alfieri, Wendy Mitchell and Thomas Hudnut were absent from the meeting.

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Letters to the Editor: Ed Martin, President, Association of Racing Commissioners International

For well over a year, we have been told that the HISA Act was legally bulletproof and within the parameters of the US Constitution. According to a unanimous decision of a three judge panel from both political parties issued last week, such assertions may not be so.

The ARCI has not taken sides in this legal dispute, although some of our member agencies have as there are serious issues involving States rights, taxation without representation and commandeering that are at stake. The final outcome of the legal process may not be known for quite some time, creating an uncertainty for everyone involved with thoroughbred horseracing.

Conflicting legal opinions will determine what happens next in the individual States.

Some States, like California, will honor a written agreement they have executed with HISA to enforce their racetrack safety rules. Other States, upon the advice of counsel or Attorney General, will revert to state rules that remain on the books, not wanting to jeopardize the outcome of a court challenge to any enforcement action.

Not all states have written agreements. Many have sent letters informing HISA as to what they will or will not do. Those can be withdrawn or modified at any point if a State believes it's a roll of the dice as to whether enforcement actions will hold should the current ruling stand.

Last Friday, most US racing commissions participated in an emergency meeting convened by the ARCI. The commissions have and continue to work with HISA and HIWU representatives in a cooperative effort. While that will not change it should not be assumed that there are no concerns or limitations as to what an individual commission may or may not do.

What happens next is unknown and there currently is a storm cloud hanging over regulatory actions taken by HISA. It is not unreasonable to expect that those sanctioned for HISA crop rule violations will go to court as there now is reason to question the legality of the HISA Act itself.

We are but a few weeks away from when HISA plans to take over the anti-doping and medication control enforcement. That's huge and state regulators are concerned about whether a HISA drug violation levied after January 1, 2023 is valid if HISA itself is not legal.

Most State Racing Commissions believe the HISA Act is in need of modification to restore the financial, operational and rulemaking transparency and accountability this industry has now lost with the private entity. In addressing this Congress can eliminate the legal problems as well as mitigate the enormous cost about to be levied on the thoroughbred racetracks, owners, and horsemen. I was on a panel in August with Lisa Lazarus and proposed that HISA and its proponents get “everyone” in a room and reach an agreement in order to make this work to avoid the mess we are now in.

We should all be working together to salvage the many good things that can come out of this. But that might require an amendment to the HISA Act or short-term delay. Some people refuse to even consider that.

There are many who believe the current animosity of the US political divide is killing the country. We should not let that happen to this great sport.

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