FTC Approves HISA's Anti-Doping Medication Control Rule

The Federal Trade Commission has issued an order approving the Anti-Doping and Medication Control rule proposed by the Horseracing Integrity and Safety Authority after a public comment period. 

The rule takes effect March 27, officially launching the ADMC.

The Horseracing Integrity and Safety Act, which recognized the Authority, includes a requirement that its rules (and any future modifications to those rules) be submitted for approval to the FTC. The act requires that the FTC approve submitted rules if it finds that they are "consistent with" the act and the FTC's procedural rules governing the submission process.

The FTC's procedural rule provides that the FTC will publish the Authority's proposed rules in the Federal Register for public comment if the Authority's submissions meet certain criteria. Under the Act, the FTC had 60 days from the date of publication to approve or disapprove the proposed rule.

The commission vote to approve the rule was 3-0-1, with commissioner Christine S. Wilson abstaining.

HISA issued a release outlining the launch of the new and enhanced anti-doping regulations and what it will mean for the sport. That release is as follows:

For the first time in the sport's history, the vast majority of racetracks that operate Thoroughbred horse races will now adhere to uniform testing and enforcement standards developed to strengthen equine welfare and enhance confidence in the fairness of competition. HISA's ADMC program, administered by the Horseracing Integrity & Welfare Unit (HIWU), brings all testing and results management under one national authority, standardizes the categories of substances laboratories test for, and institutes clear and consistent penalties for violations.

In its authority as the independent administrator of the ADMC program, HIWU is introducing to the sport a new paperless sample collection system, strategic out-of-competition testing nationwide, and centralized adjudication processes to facilitate swift rulings.

"Having a uniform anti-doping program in place for the first time ever will be a game changer for American horse racing," said HISA CEO Lisa Lazarus. "HISA's ADMC program is the modern, rigorous yet fair regulatory framework the sport deserves. Its rules, philosophical approach, and professional implementation will help ensure the integrity of the competition and demonstrate the seriousness of the industry's commitment to equine welfare." 

HIWU is led by executive director Ben Mosier, who has previously overseen anti-doping programs for multiple North American sports leagues and organizations. Among other members of HIWU's leadership team are experts with decades of experience working in anti-doping, including in Thoroughbred racing, as well as in federal law enforcement.

"The HIWU team is proud to partner with HISA in the administration of the ADMC program, which represents a major advancement in how the sport governs anti-doping enforcement," said Mosier. "HIWU has been working with state racing commissions and racing participants for months to educate all the sport's stakeholders on the new rules, including through in-person and virtual presentations and the library of resources on our website. I am grateful to all who are working with us, particularly the local sample collection personnel, laboratories, and other officials operating under the new uniform procedures now in place."

The ADMC program's prohibited substances list is divided into two categories: 1) banned substances that are never permitted in a horse and 2) controlled medications that are permitted outside specified periods. Horses will be tested for these substances following races as well as outside competition windows through an intelligence-based testing system developed by HIWU. The ADMC program incorporates internationally recognized standards set by organizations including the Association of Racing Commissioners International (ARCI), World Anti-Doping Agency (WADA), and Fédération Equestre Internationale (FEI).

"Thoroughbred racing is a cherished American institution that for too long has been marred by a small group of bad actors who took advantage of the patchwork of differing state-level anti-doping rules to cheat and evade real consequences," said Charles Scheeler, chair of the HISA board of directors. "Leaders in the sport and horsemen across the country have finally come together to prioritize equine welfare and integrity above all else, and I have no doubt that our sport's future is brighter for it." 

"The ADMC rules are informed by science and were developed by experts with unparalleled expertise in anti-doping and equine welfare," said Adolpho Birch III, HISA ADMC committee chair and Tennessee Titans vice president and chief legal officer. "With collaboration from across the industry, this program will bring racing in line with the level and quality of other North American sports that are able to take advantage of centralized safety and integrity regulations."

The Horseracing Integrity and Safety Act, passed into federal law by a bipartisan act of Congress, grants HISA jurisdiction over all Thoroughbred horseraces in the U.S. that are the subject of interstate off-track or advance deposit wagers. 

The ADMC Program is the second of HISA's two regulatory programs to be implemented. HISA's Racetrack Safety Program, which established uniform operational safety rules and racetrack accreditation standards, took effect upon receiving approval from the FTC July 1, 2022. Further information about HISA can be found on its website.

BloodHorse has reported that four states will not take part when the drug-testing procedures begin. Louisiana and West Virginia are not due to a preliminary injunction issued by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana last year, and Texas and Nebraska have elected to not simulcast out-of-state rather than fall under HISA oversight.

The National Horsemen's Benevolent and Protective Association, which has pursued litigation to halt HISA's launch, also issued a statement Monday.

"The Authority is barreling forward to implement HISA, and the FTC is enabling it by rubber-stamping another set of seriously flawed rules," said National HBPA president Doug Daniels, DVM. "Industry concerns must be taken into account, and we believe no one at the FTC is listening.

"Without our efforts, I fear for our future. Today, we plan to file a motion with the Northern District of Texas court asking the judge immediately to stop these rules from going into effect."

The U. S. Fifth Circuit Court of Appeals declared HISA's enabling legislation facially unconstitutional late last year. A congressional response to the ruling enacted Dec. 30 vested more power in HISA's oversight agency, the Federal Trade Commission, in an effort to overcome the Fifth Circuit ruling. When asked to reconsider its ruling in light of the legislative change, the Fifth Circuit remanded, or sent back, cases to district courts in Texas and Louisiana for further consideration.

Ed Martin, president of the Association of Racing Commissioners International, an umbrella group of state racing commissions, said in a release that he's concerned that the ongoing litigation over HISA could impact any regulatory decisions it aims to enforce.

"The Thoroughbred horse racing industry should remain concerned that penalties imposed under the HISA rules are not stayed indefinitely by appellants with talented legal representation as a result of the unresolved constitutional issues still pending," Martin said. "In reversing its prior decision to now approve federally preemptive rules to replace state rules based on solid law, we remain concerned as to how this will play out going forward.  

"The industry, and ultimately the public, will not be served if the unresolved constitutional issues are reason to prevent cheaters from being promptly sanctioned once the case is proven.   

"It is our hope that the HIWU adjudication will not result in more lenient "plea bargains" as a way to avoid appeals to the courts where suspensions and fines could be stayed pending resolution of the constitutionality of the HISA Act."

Martin believes there are better approaches to regulating the sport in the areas HISA will oversee.

"It is sad that the original proponents of the HISA Act have so far failed to come together with the considerable constituencies challenging it in the courts to forge a workable alternative that everyone can live with that will also mitigate the economic impact of the new program on the racetracks and industry," Martin said. "Unless something changes as a result of court action, we wish HISA and the HIWU staff well as they assume total responsibility for enforcement in this area."