National HBPA files petition with FTC for 'no-effect thresholds'

The National Horsemen’s Benevolent and Protective Association has sent a petition to the Federal Trade Commission requesting that the federal agency create so-called “no-effect thresholds” for drugs that are regulated under the rules created by the Horseracing Integrity and Safety Authority.

The petition, which the National HBPA said was signed by 750 horsemen, asks the FTC to create the thresholds for eight specific substances while making a larger request to set thresholds for “all other medications or substances being tested” by the Horseracing Integrity and Welfare Unit, which enforces HISA’s rules. By law, the FTC is the federal overseer of HISA.

In the petition, the National HBPA contended that the thresholds will “protect horsemen from false allegations of cheating.” The organization defined “no-effect thresholds” in its petition as “a laboratory testing detection level below which no owner or trainer will be punished for pharmacologically irrelevant concentrations of foreign substances that have no effect on a horse.”

“Innocent owners and trainers are being wrongfully maligned and punished as cheaters after HIWU finds a pharmacologically irrelevant, miniscule amount of a foreign substance in a horse that has no effect whatsoever on its performance or health,” the petition states. “The FTC must intervene to stop this injustice.”

In a statement released in response to the petition, HISA was highly critical of the language the National HBPA used in its request to the FTC, saying that “claims that horsemen are being unjustly penalized for positive tests they couldn’t have avoided and which have ‘no effect’ on a horse are untrue and scientifically inaccurate.”

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Threshold levels are in place for dozens of controlled medications that are allowed to be used for therapeutic purposes, but those levels are relatively rare for banned substances, which are defined as those having no therapeutic use in horses and a high potential for altering performance or for abuse. Those banned substances are mostly treated under so-called “zero-tolerance” rules, in which the finding of a drug at any level is considered a violation.

In its rebuttal to the National HBPA petition, the HISA statement referenced the threshold levels already in place for banned substances and its separate adjudication process for substances that are common environmental contaminants. It also cited new policies treating drugs of human abuse more leniently than other banned substances, provided evidence is produced tying the positive to human contamination.

Setting threshold levels for banned substances is a tricky endeavor, since many drugs can be used to enhance physical or biological attributes of a horse outside of racing. Banned drugs also have highly variable levels of potency relative to the concentration of the drug in post-race tests, along with differing rates of clearance from a horse’s system.

In support of its argument, the HBPA petition cites current “no-effect thresholds” in place for the regulation of drinking water and illicit drugs, where companies and individuals are not held responsible for low concentrations of contaminants or illegal substances. The petition contends that inadvertent or environmental contamination has been the cause of numerous violations adjudicated by HIWU since the authority took over drug-testing in most U.S. racing jurisdictions 14 months ago.

The specific medications listed in the petition include hydroxyecdysone, a hormone that is commonly used in nutritional supplements; fentanyl, the opioid analgesic that is commonly abused by humans; metformin, the primary ingredient in a number of medications used to treat diabetes in humans; methamphetamine, the powerful stimulant; xylazine, a sedative that is commonly used in veterinary medicine but is also a drug of human abuse; pemoline, a stimulant; and tramadol, an opioid medication that is commonly used as a sedative in veterinary medicine.

In early June, HISA announced a new policy in which trainers would not be issued provisional suspensions for positives of metformin until the Racing Medication and Testing Consortium issues recommendations on possible “refinements” to the regulations establishing the drug as a banned substance. Trainers who have been cited for violations of the policy have blamed contamination from employees for the positives.

The petition also asks the FTC to establish no-effect thresholds for ethyl glucuronide, an endogenous substance. The petition states that HIWU deliberated over setting a threshold level for the substance but did not follow-through.

The petition also states that HISA is in violation of provisions of its enabling legislation that requires it to set “allowable limits of permitted medications, substances, and methods,” by interpreting that language as requiring threshold levels for all substances regulated by the authority. The petition says that HISA has established threshold levels for 45 of the 274 substances on its controlled and banned list, or 16.4 percent.

The HISA statement disputed the National HBPA’s interpretation of that language and said that establishing “no-effects thresholds” would actually be in violation of specific provisions within the enabling legislation.

HISA also cited the National HBPA’s lawsuit challenging the constitutionality of the authority as being a motivating factor in filing the petition. Last week, the U.S. Supreme Court denied a petition to hear an appeal of a ruling upholding HISA’s constitutionality, but a separate lawsuit initiated by the National HBPA is still pending before the U.S. Fifth Circuit Court of Appeals.

“It is unfortunate that the HBPA has chosen to double-down on its misinformation campaign,” HISA said, in reference to a call by its chairman for the HBPA to drop its legal challenges in light of the Supreme Court decision.

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