FTC republishes HISA Anti-Doping and Medication Control Program rules

By: Tom LaMarra

Posted: Jan. 27, 2023

The Horseracing Integrity and Safety Authority Jan. 27 said it expects its Anti-Doping and Medication Control Program to take effect March 27 given the fact the Federal Trade Commission has published the resubmitted rules to the Federal Register. The action begins a 14-day public comment period; the FTC has 60 days to approve or deny the proposed rules.

The action came a day after a group of United States lawmakers—five members of the Senate and five members of the House of Representatives—sent a letter to the FTC urging the commission to disapprove the recently submitted rules. According to a release from the National Horsemen’s Benevolent and Protective Association, the bipartisan group said disapproval from the FTC is necessary to “avoid continued industry-wide confusion and potential inequitable enforcement.”

The FTC already had disapproved the ADMC Program Dec. 12, 2022, pending resolution of “the legal uncertainty regarding the Act’s constitutionality comes to be resolved.”

HISA AMDC rules Jan. 26, 2023 in Federal Register

The HISA draft ADMC rules were initially rejected by the FTC in late 2022 due to ongoing legal uncertainties. HISA has resubmitted the rules for consideration by the FTC following passage of a massive omnibus spending bill in late December that contained a short amendment that HISA supports claim sufficiently addresses the constitutional questions raised by the Fifth Circuit Court of Appeals in November.

In a release, HISA said it anticipates the ADMC Program will go into effect March 27, 2023, pending FTC approval, and that the resubmitted rules “include a small number of minor revisions from the version submitted in August 2022. A clean version of the proposed rules is available on the Federal Register now and a red-lined version will be available on HISA’s website within the next 48 hours.”

In its December 2022 order, the FTC stated it would consider all previously posted comments on the Federal Register as well as any updated or new comments.

Upon implementation, the ADMC Program will be administered and enforced by the Horseracing Integrity & Welfare Unit. The development of the ADMC rules included an initial public comment period, numerous open discussions and meetings with industry organizations and individuals, as well as the careful consideration of more than 200 comments submitted by racing participants and the general public.

“The establishment of uniform, nationwide anti-doping rules in Thoroughbred racing will strongly enhance the safety and integrity of our sport and is a step many in our industry have long advocated for,” HISA Chief Executive Officer Lisa Lazarus said in a release. “We deeply value the input we’ve received from racing participants throughout the development of these rules, and I encourage all participants to continue to share their thoughts with us moving forward.”

The bicameral letter from the federal lawmakers to FTC Chair Lina Khan states in part: “To avoid continued industry-wide confusion and potential inequitable enforcement, it is imperative that you again disapprove the proposed rule until after the constitutionality of HISA has been resolved. Furthermore, you should issue a statement clarifying that, as a result of
provisions Congress included in the Consolidated Appropriations Act of 2023, previously-submitted rules are now invalid and, following the resolution of the litigation, must be resubmitted for consideration by the FTC.

“We strongly encourage the FTC not to publish any proposed rules submitted by the Authority in the Federal Register until the constitutional issue has been resolved fully. Court filings in the four lawsuits challenging HISA have made clear that HISA’s future is far from certain. It would be irresponsible for the FTC to move forward to approve the Authority’s rule now, as the courts have not even had an opportunity to weigh in on the new so-called legislative ‘fix.’ The legal issues likely  will not be resolved until multiple Circuit Courts—and potentially, the Supreme Court—have had a chance to weigh in.”