Some of the same horse groups who oppose the federal regulation of horse racing are asking federal regulators to embrace liberalized medication standards that state regulators and national medication bodies have consistently rejected.

Mike Tanner, the executive vice president/CEO of the USTA, wrote an interesting column in the latest issue of HoofBeats magazine praising the virtues of no-effect thresholds – “No Harm, No Foul,” is the headline of the piece – and endorsing an effort by Thoroughbred horse groups to convince the Federal Trade Commission to adopt such rules. “We anxiously await word about what, if anything, the FTC will decide about no-effect thresholds. Where the agency lands on this matter could have significant ramifications for harness racing down the road, depending on whether HISA survives its constitutional challenges,” Tanner wrote.

The USTA’s push for these thresholds is not new. Tanner told me last week: “The Association has been very consistent in its stance and proposals regarding no-effect thresholds, although the use of that specific term is relatively new to us.” Tanner says the USTA pitched such thresholds for clenbuterol and betamethasone at a meeting of the Association of Racing Commissioners International in California in 2019. “The regulators are very interested in hearing what they have to say, including why this policy change is necessary and in the best interest of the horse as well as ensuring the integrity of the race,” ARCI President Ed Martin said at the time

Tanner says the USTA has also pitched the idea to state racing commissions in years past. None of those efforts have worked, obviously. “As to why no-effect thresholds have not been universally adopted,” Tanner told me, “that’s a question better directed to the regulatory bodies (FTC/HISA, state racing commissions) or advisory organizations like the ARCI.” So the USTA’s argument isn’t new. But asking the feds to fix a problem state regulators wouldn’t fix is a twist. The folks who are asking the FTC to embrace a radical approach to drug standards are the same folks who say the FTC has no jurisdiction over U.S. racing. It’s ironic, to put it nicely, that they want the feds to rescue them from overzealous contamination positives by state officials.

I checked in with Martin earlier this month. He’s saying pretty much the same things that he said in 2019. Responding to Tanner, Martin says: “He makes some interesting points and it certainly is a discussion worth having. This is a tough sport to regulate and change comes slowly. I am not sure my members are ready to embrace this, but that discussion has not yet happened. I do know this, these are not ‘one size fits all’ situations and regulators are well advised to consider mitigating circumstances before assessing a penalty. I also know adopting formal ‘thresholds’ can be an extremely costly project given the number of substances that a vet can legally use.”

More from Martin: “The ARCI has no recent request from the USTA to modify our recommended medication rules to ‘no-effect thresholds.’ … The advances in testing technology over the years have enabled the testing labs to see all sorts of things at minute levels and the question is does it mean anything. So the environmental contamination issue is one that everyone continues to wrestle with. The way to address this is to get all the labs on the same page as to the ‘point of regulatory action’ as ultimately every regulatory entity does want to be fair and there are some points at which a trace of something is meaningless.”

The FTC is now mulling over the request for ‘no-effect thresholds” and the response submitted by the Horseracing Integrity and Safety Authority, the federal regulators who enforce the new federal racing law. HISA has told the FTC that the proposed changes would be detrimental to the safety of horses and the integrity of racing. “The application of ‘no-effect thresholds’ to all Prohibited Substances … would not be consistent with best practice in anti-doping and medication control and would be contrary to horse welfare,” the feds argue. “In fact, adopting such thresholds would place US horse racing significantly behind international horse racing, international equestrian sport, and other sports in the global anti-doping movement.”

This is how the feds frame the issue in their formal filings. To them, it is not a “no harm, no foul” scenario. It “is incorrect that the imposition of concentration thresholds for all Prohibited Substances would avoid sanctioning participants for inadvertent conduct that would not benefit the horse,” the feds say. “Instead, the imposition of concentration thresholds would relax protections designed to protect horse welfare and the integrity of the sport by effectively establishing a tolerance for the use of all prohibited substances (including banned substances that should never be used on a horse as they serve no legitimate therapeutic purpose).”

“The relative amount of a substance found in a sample is not determinative of intent, why it was administered, or its effect on the horse,” HISA officials told me a week ago. “In fact, since banned substances should never be in a horse’s system, the presence of a banned substance at a low level may simply mean the administration took place further away in time.” The HISA folks say that “HBPA’s argument assumes low concentrations of ‘prohibited substances’ are indicative of innocent administration or lack of pharmacological effect. This is not supported by the science or the international anti-doping framework, which posits that thresholds should apply only for a limited number of ‘prohibited substances’ and for very specific reasons.”

The USTA and HBPA argue that their suggestion is a common-sense solution to a problem. That’s not how the feds see it: They told me: “Decades of experience in both human and equine anti-doping programs have informed HISA’s rules. The idea of no-effect thresholds has been uniformly rejected in every other major anti-doping program. The rules already appropriately provide for levels and nuances across substances, both in terms of testing and enforcement (sanctions). Additionally, adopting such thresholds would violate the Horseracing Integrity and Safety Act by making the program less stringent than the required baseline anti-doping rules.”

The final word on the dispute goes to Ed Martin. “HISA is learning what state racing commissions already knew – it doesn’t matter what you do, somebody won’t like it. This industry is relatively small and differences of opinion as to how to tackle a matter will always exist. In the end, what matters is that everyone can put their approach on the table and have it considered even if it is not adopted. … It’s also why many regulatory agencies have relied on the collective wisdom of their colleagues. What I think is important is that everyone keeps talking to each other. There may never be a consensus, but in the end everyone is in that same boat and once a decision is made you go with it until new information comes forth to warrant a change…”

My readers, they write

My Keeping Pace column last week focused on the idea that the lawyers who are pushing anti-HISA lawsuits are steering the industry toward a model that has federal judges, not state or federal regulators, getting into the weeds of doping cases and other investigations. I think that’s a bad idea, for many reasons, and I think most horse people would agree. The more people who know something about horse racing decide legal conflicts about horse racing the better off horse racing will be. It’s hard to believe that is a controversial thing to think or say. But some Facebook followers of Paulick Report see it differently.

One Facebook reader wrote: “I’m not against implementing rules that make racing safer and more fair but it’s against the constitution to have an agency making rules and making adjudication without congressional approval and oversight. There’s too much agency power in the USA and it’s not constitutional.” Those are two sentences that could have been ripped from the pages of the appellate briefs filed by the conservative groups that are trying to neuter federal agencies one at a time. My response is: Congress delegated authority over horse racing to the FTC, a federal agency that has been protecting U.S. consumers for 70 years.

Another Facebook reader wrote. “Why don’t you post the FTC records reversing HISA rulings made by incompetent and uncredible stewards?” This reader must have missed a series of Keeping Pace columns I’ve written in the past few months that detail some of the FTC reversals we’ve seen in recent months. The reader sees these reversals as some sort of proof that the new federal regulatory system isn’t working. Others, like me, see these reversals as proof that there is stringent FTC oversight over the HISA Authority, a reality that undermines the “private actor” argument on which so much of the anti-HISA legal case is based.

Then there was the Facebook reader who took issue with my argument that there is no way that federal judges could ever have the level of expertise they would need to make informed decisions on thorny racing matters. The reader wrote: “The judges don’t need to know a filly from a colt, just the facts of the case. If a cheese maker files a lawsuit against a food company, the judge doesn’t need to know the several varieties of cheese or how it’s made, they need to know the law and how to apply it to the case.” Clearly, this Facebook correspondent isn’t the cheese maker in his own example; otherwise he’d want a judge with expertise about cheese.

Notes

Show me the money. Last month, federal racing regulators published a proposed change to how HISA is funded. Here’s how Frank Angst of Bloodhorse wrote it up in mid-September. ”The current formula factors both the number of starts for a jurisdiction and purses awarded in that jurisdiction. The new formula would eliminate the purse consideration from that equation and base assessments only on starts. The proposal would see this formula begin January 2026. Under the proposal, after approval of the HISA budget and taking into account other sources of revenue, HISA shall allocate the calculation due from each state proportionally by each state’s respective percentage of racing starts relative to all HISA jurisdictions.”

Last week, the FTC, which oversees HISA, announced that it is seeking public comments on HISA’s request by Nov. 6. The federal agency also announced that it will either approve or disprove HISA’s request by Dec. 23. Here’s how Chelsea Hackbarth of Paulick Report wrote it up: “Currently, HISA fees for each track are calculated by taking into account both the number of starts and the amount of the purses paid out; the new rule would change that calculation to base the fees strictly on the number of starts at each track. Each track in the United States would pay the same per-start fee, whether at the high-purse boutique meet of Kentucky Downs or day-to-day, year-round racing in smaller jurisdictions.”

Hackbarth’s story also gives us a sense of some of the absurdity and hypocrisy inherent in some of the knee-jerk opposition to the new federal racing integrity law. HISA is requesting to change its fee structure in part because of a legal challenge to it by, among others, the Ohio Horsemen’s Benevolent and Protective Association. These groups argue the HISA officials cannot, by law, consider purses when establishing fees. Yet, as Hackbarth points out, the same Ohio HBPA is challenging HISA’s proposal to do away with considering purses when establishing fees. Got that? The Ohio horsemen say that HISA cannot use purses and cannot stop using purses.