Horseracing Integrity and Safety Authority delays drug-testing programs

The Horseracing Integrity and Safety Authority on Monday night shelved its plans to take over drug-testing enforcement in most major U.S. racing jurisdictions as of Jan. 1 after a federal agency declined to approve rules related to the program.

The Federal Trade Commission cited legal issues related to HISA in its decision to decline approval. Under HISA’s enabling legislation – which has been ruled unconstitutional by one U.S. District Court of Appeals – the FTC must approve rules for HISA’s programs before they can be implemented and enforced.

The FTC decision will set back HISA’s plans to become the U.S. racing industry’s main regulator and enforcement body by months, at the very least. HISA officials said Monday night after the FTC decision that they continue to “explore all options,” but that its Anti-Doping and Medication Control (ADMC) program would be shelved indefinitely.

“Stability is really important for the industry, and while we very much want to launch the ADMC program on Jan. 1 and will continue to work toward that goal, stable legal certainty will be very beneficial for buy-in and commitment,” said Lisa Lazarus, chief executive of HISA, on a conference call Monday night.

HISA, a non-profit, private company, was set to launch the program in 12 states on Jan. 1, the only states that have tracks operating at that time of the year, and then expand the program to other jurisdictions as live racing returned. The program would have required HISA to administer the vast drug-testing operations of the jurisdictions, including sampling, out-of-competition testing, laboratory accreditation, and enforcement of rule violations.

Ben Mosier, executive director of the unit within HISA that was set to administer and oversee the ADMC, said in a statement distributed by the authority that the unit would “continue its education and outreach efforts to all stakeholders in the Thoroughbred industry” while the implementation hangs in limbo.

The Horseracing Integrity and Wagering Unit “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,” Mosier said.

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On Nov. 18, the U.S. Fifth Circuit Court of Appeals, which includes Louisiana, Mississippi, and Texas, ruled that HISA was unconstitutional, in a decision that said that the FTC is “subordinate” to HISA, rather than the other way around. Under a constitutional principle known as the delegation clause, the court ruled, the federal government cannot delegate regulatory authority to a private agency without being “subordinate” to a federal agency.

The ruling will not go into effect until Jan. 10, when the court is scheduled to release its mandate to enforce the decision, and there is still some legal question as to whether the ruling affects states outside of the Fifth Circuit’s jurisdiction. Nevertheless, the FTC decision makes the decision moot, at least as it applies to the ADMC program.

HISA’s legal strategy appears to hinge, for now, on the U.S. Sixth Circuit Court of Appeals, which heard oral arguments Dec. 7 in a case remarkably similar to the one in the Fifth Circuit. Both cases were brought by a collection of horsemen’s groups, racing commissions, and state attorneys general who object to HISA.

If the Sixth Circuit rules that the HISA-FTC structure is constitutional, then attorneys are expected to ask the U.S. Supreme Court to rule on the matter, since there will be conflicting opinions in two circuit courts. The Fifth Circuit, which struck down HISA, is considered one of the most conservative courts in the United States in relation to constitutional questions of state power and federal reach. The Supreme Court is currently tilted 6-3 in favor of the protection of state’s rights.

Still, Lazarus said on the conference call that HISA will continue to enforce its safety rules, which were put in place July 1, because the FTC decision made a reference to those rules being unaffected by its Monday decision. She said that the safety rules “remain in full force and effect.”

However, states that had been cooperating with HISA on the implementation of the ADMC, including Kentucky and California, will now have to plan for a Jan. 1 in which the sole authority and operation of the state’s drug-testing and enforcement programs remain in their hands, after several months of planning for the transition.

Meanwhile, in Washington, D.C., supporters of HISA are attempting to lobby federal legislators to pass a new bill that would clarify HISA’s relationship with the FTC before the end of the year, but the passage of such a bill might require HISA to resubmit its rules for FTC approval, meaning the delay in the implementation of the ADMC program will still occur. In addition, the National Horsemen’s Benevolent and Protective Association, a trainer-owner group that brought the suit eventually heard by the Fifth Circuit, has begun organizing a lobbying effort to raise objections to any legislation.

The chief executive officer of the National HBPA, Eric Hamelback, praised the FTC’s decision in a statement released Monday night.

“The FTC has done the right thing in declining to defy a federal court that has found HISA unconstitutional,” Hamelback said. “The FTC order is clear: State law continues to govern medication issues until our final victory in this case.”

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