Anti-doping program is approved; horsemen continue challenge

New anti-doping regulations took effect Monday morning as the Federal Trade Commission approved the anti-doping and medication control rules proposed by the Horseracing Safety and Integrity Authority.

The rules took effect immediately upon upon the FTC's approval, meaning that Monday racing at HISA-covered tracks such as Parx, Mahoning Valley, Santa Anita and Turf Paradise will be covered by the new anti-doping framework.

The vote to approve the ADMC program was 3-0-1. FTC chair Lina Khan and commissioners Alvaro Bedoya and Rebecca Slaughter approved the proposed rules, and commissioner Christine Wilson abstained from the matter.

HISA leadership is optimistic about the effect that the ADMC rules will have on the sport.

"Having a uniform anti-doping program in place for the first time ever will be a game changer for American horse racing," HISA CEO Lisa Lazarus said in a news release. "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."

But even after Monday's FTC approval of the new anti-doping framework, neither the controversy nor the rulemaking involving HISA is over.

The National Horsemen's Benevolent and Protective Association's leadership continues to have strong reservations about the act and its constitutionality. The organization said in a news release that it plans to file a motion Monday afternoon in federal court for the Northern District of Texas, requesting to prevent the ADMC rule immediately from taking effect.

"The authority is barreling forward to implement HISA, and the FTC is enabling it by rubber-stamping another set of seriously flawed rules," National HBPA president Doug Daniels said in the release. "Industry concerns must be taken into account, and we believe no one at the FTC is listening. That’s why the Fifth Circuit court of appeals ruled HISA unconstitutional in our lawsuit."

Aside from this proposed suit by the National HBPA, the FTC itself has opened the door for further review and amendment to HISA rules.

In its order approving the ADMC rule, the FTC set Sept. 27 as a deadline for HISA to submit another round of proposed rule modifications. This came in response to comments made by the National HBPA and the Kentucky HBPA, asserting that Congress intended for HISA to submit the ADMC rule at the same time as the racetrack safety rule, so they could be assessed together.

The FTC noted that HISA could not have enacted an anti-doping rule when the racetrack safety rule took effect on July 1, 2022, because there was not an enforcement agency yet in place. The commission admitted that "there may be some benefit for all of the horse-racing rules to be reviewed simultaneously once they have been in effect for enough time to provide all stakeholders with an opportunity to evaluate them."

Since then, HISA began to work with Drug-Free Sport International, which created the Horseracing Integrity and Welfare Unit to administer and enforce the ADMC.

With all of the major pieces in place, the FTC has ordered HISA to review all of its rules and propose modifications by the Sept. 27 deadline.

This was the second time that the ADMC rule had been submitted to the FTC. The commission rejected a similar set of draft rules Dec. 12 because of legal action around the constitutionality of HISA. A section of the omnibus spending bill signed by President Joe Biden amended a section of the Horseracing Integrity and Safety Act to give the FTC authority to "abrogate, add to, and modify the rules of the (horse racing) authority." With that provision in place, HISA submitted a revised ADMC rule.

The rule was posted for comment by the FTC on Jan. 25, with comments due Feb. 9. 110 comments were submitted on the ADMC program rule; the FTC considered these, as well as 20 comments submitted the first time similar rules were up for consideration. The FTC had 60 days from the date of publication to either approve or vote against the rule. Monday was the final day of the 60-day waiting period.

The FTC mentioned in Monday's order that it had received comments claiming that the ADMC rule is unconstitutional under the Fifth Circuit decision in November 2022. The commission stated that Congress addressed that concern with the December 2022 amendment giving the FTC authority to abrogate, add to or modify the rules. The FTC also cited the Sixth Circuit's March 3 ruling that the amended statute is constitutional.