Legal doubts trigger rejection of fed authority’s drug rules

Barely three weeks after a federal court declared it unconstitutional, the Horseracing Integrity and Safety Authority suffered another setback Monday when its government overseer rejected its drug regulations that were scheduled to take effect Jan. 1.

“The Federal Trade Commission has issued an order disapproving the anti-doping and medication-control proposed rule submitted by the Horseracing Integrity Safety Authority to its enforcement rule after a public comment period,” an FTC statement said Monday afternoon.

LAST WEEK: Sixth Circuit hears arguments for, against HISA.

In a 3-0 vote with one abstention, the FTC said its rejection was rooted in the ruling last month by the Fifth Circuit Court of Appeals in New Orleans that said the framework for HISA violated the U.S. Constitution.

The FTC’s “disapproval arises from the legal uncertainty” of the ruling, the statement said. “Because the next steps in the litigation could render the proposed rule unenforceable, ... approving the proposed rule would be inconsistent with (HISA)’s foundational principle that horse-racing rules be uniform across the nation. Accordingly, the (FTC) did not reach the merits of the proposed rule, which (HISA) may resubmit if the legal uncertainty is resolved.”

HISA may be on borrowed time, since the Fifth Circuit’s ruling would take effect Jan. 10. A separate but similar case was heard Wednesday in the Sixth Circuit federal court in Cincinnati. The three judges there did not say when they might make their decision.

The FTC rejection Monday added to the uncertain, immediate future for HISA, which received bi-partisan support when the act creating it was passed two years ago. It was one of hundreds of amendments to a 5,593-page government spending bill that included economic relief for COVID. It was signed into law Dec. 27, 2020, by then-President Trump.

A HISA spokesperson issued a matter-of-fact statement Monday evening in reaction to the FTC’s rejection of the drug regulations.

“HISA appreciates the FTC decision to deny HISA’s draft anti-doping and medication-control rules without prejudice as we actively seek to resolve current legal uncertainties,” the statement said. “We will resubmit the draft rules to the FTC for their review as soon as these legal uncertainties are resolved.

“In the meantime the horse-racing integrity and welfare unit will continue to work toward the implementation of a uniform, independent anti-doping and medication-control program that is administered consistently and fairly across the United States.”

A separate statement issued in the name of Ben Mosier, the executive director of HISA’s horse-racing integrity and welfare unit, said his group “has spent the past seven months preparing for the program’s implementation on Jan. 1 and stood ready to enforce this national, uniform program on that date pending approval from the FTC.” Mosier’s statement went on to say the integrity and welfare 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.”

The National Horsemen’s Benevolent and Protective Association, a prominent critic that joined certain state regulators and track operators in taking HISA to court, praised the FTC rejection.

“The recent FTC decision is another positive step forward for horsemen in our battle against the unconstitutional takeover of our industry,” NHBPA CEO Eric Hamelback said in a written statement Monday night. “The strength of our legal arguments led to a unanimous decision in the Fifth Circuit, and now the FTC has done the right thing in declining to defy a federal court that has found HISA unconstitutional.”

A major thrust of the legal case against HISA has been that it violates Article 1 of the U.S. Constitution, which prevents Congress from delegating legislative authority to any other entity. In practical terms, lawyers arguing against the act have said the FTC, a government agency, has wrongfully allowed itself to be big-footed by HISA, a private organization.

Aside from legal appeals that have yet to go forward, HISA might be saved if, as reported by Reuters, Senate minority leader Mitch McConnell (R-Ky.) is successful in getting HISA rewritten this month into a new spending bill that could exceed $1.7 trillion for the next year.