July 7, 2022 
While their neighbors to the north spent the holiday weekend celebrating Canada Day and Americans the 246th anniversary of their nation’s Declaration of Independence, the greatest regulatory change in U.S. Thoroughbred racing history slipped along the rail and snuck across its much-anticipated finish line.
Senate Bill 4547 bears the dry legislative name the Horseracing Integrity and Safety Act of 2020,or HISA. It will change equine anti-doping medication policies and punishments, among other racing practices, and unites all 38 racing jurisdictions under a single federal regulatory authority for at least the next five years.
It is nothing less than the most historic legislative change in the governance of the sport since its introduction into the United States.
That is because the U.S. is governed by two sets of laws and regulations, federal and state. It is a compromise that has existed since the nation’s founding, one between those founders who favored a strong central government and those wanting each state to have the autonomy to govern its own citizens. Beginning with only 13 states, the practice now encompasses all 50.
A state’s authority to make laws and regulations means the posted speed limit in South Dakota is 70 miles per hour, but only 55 in Alaska; that 19 states permit the use of recreational marijuana while the remaining 31 currently prohibit it; that a 15-year-old can marry without parental consent in Mississippi, but not until 18 years of age in California and all other states except Nebraska (19).
The only way around these varying state laws and regulations is a federal law enacted by the Congress.
Horse racing’s 38 jurisdictions have been governed since its inception by similarly differing regulations. A medication authorized for use on race day in one jurisdiction is limited or prohibited in another; a jockey’s use of whips is controlled in some jurisdictions, now even at some racetracks, and permitted without limitation in others. Suspensions and financial punishments for violations can vary in a dizzying manner.
That began to change Jul. 1 when SB 4547 survived three court challenges brought to date and placed horseracing under federal regulatory authority with the implementation of HISA as federal law.
The HISA has trod a long, wearying path.
Attempts to introduce legislation to improve equine safety and regulate Thoroughbred racing have a long, frustrating history.
Legislation was first introduced in the Senate as S. 886, the Interstate Horseracing Improvement Act of 2011. The bill was specifically intended to amend the Interstate Horseracing Act of 1978 with the intent to “prohibit the use of performance-enhancing drugs in horseracing, and for other purposes.”
That bill, along with similar legislation introduced in 2014 and 2016, died in Committee because it lacked the necessary support of legislators from states that sponsor racing but are wary of government regulation. The sport provides jobs for their voting constituents, tax revenue for their states and profits from wagering and attendance for their industry stakeholders.
The times they are a’changin.
The bill that passed was introduced into both the House of Representatives and the Senate with fervent bi-partisan support. That effort was led by Rep. Paul Tonko (D-NY) and Andy Barr (R-KY) in the House, co-sponsors of previous similar bills that were unsuccessful, and then-Majority Leader Mitch McConnell (R-KY) in the Senate. The bill was cosponsored by Senators Kirsten Gillibrand (D-NY), and Martha McSally (R-AZ).
McConnell announced his support for the HISA at an August 31, 2020 press conference at Keeneland, the Kentucky site of that year’s Breeders’ Cup. His support was crucial. It led to a push for passage of the HISA by the Breeders’ Cup, by Keeneland and Churchill Downs, California’s Del Mar, The Jockey Club, the National Thoroughbred Racing Association, the New York Racing Association, and multiple racetrack owner The Stronach Group.
What changed?
Thoroughbred horseracing in the U.S. has been pressured to change for several years by animal advocate groups led by People for the Ethical Treatment of Animals, PETA, and Washington lobbyist Marty Irby’s Animal Welfare Action, AWA. PETA recognizes that the financial benefits of racing to its stakeholders make abolition of the sport a near-impossible task, instead siding with AWA in promoting change, particularly in the area of drug bans and medication regulation.
The efforts of those lobbying for change proved fruitless…
…until the 2018/19 Winter Meet at historic Santa Anita Park in Arcadia, CA, near Los Angeles. During that year’s meet, which began Dec. 26 and ended Jun. 23, a staggering 49 horses died from catastrophic breakdowns during training and racing, primarily on Santa Anita’s dirt track.
The resulting outcry from the public, even race fans, was so great it prompted calls for investigation by the U.S. Senate and eventual involvement by California Governor Gavin Newsom, casting a shadow on the future of racing at one of the sport’s most important and lucrative venues.
The meet was delayed several times that season while the track was examined by industry experts and soil scientists to determine if changing weather patterns were at fault. The track’s irrigation system was improved. The track was said to be in fine condition, not deemed responsible for the fatalities.
Some blamed the use of illegal drugs and questioned even legal medications like phenylbutazone, or Bute; also, the diuretic furosemide, commonly known by its trade name, Lasix, which is used to prevent bleeding resulting from micro-abrasions of the lungs.
The Los Angeles County District Attorney’s Office even conducted a formal investigation but found “insufficient evidence to prove criminal animal cruelty or other unlawful conduct under California law.”
Ultimately, no causal determination was made for the high number of deaths.
Still, the intense public pressure led to governmental action. Newsom appointed Greg Ferraro, former director of the Center for Equine Health at the University of California, Davis, to the California Horse Racing Board with the mandate to reduce horse injuries.
Track owners, The Stronach Group, announced internal reforms at both its Santa Anita and Golden Gate Fields racing venues specifically directed at improving the health and safety of horses. It imposed the strict standards recommended by the International Federation of Horseracing Authorities. Those standards banned the use of race-day medications, including commonly used Lasix. Restrictions were imposed on jockeys’ use of whips. Improved imaging technology was installed to aid in diagnosing injuries at an earlier stage. Trainers would be compelled to participate in the mandatory postmortem review done whenever a horse dies in the state.
Kathy Guillermo, senior vice president of PETA, praised both the CHRB and the tracks for the changes. “There should be zero deaths,” she insisted. “But it was nevertheless amazing because, for the first time, the message got through.”
Ferraro said at the time “The deaths woke everybody up, including the governor.”
It also woke up usual opponents of government regulation like McConnell of Kentucky, where Thoroughbred racing is responsible for 60,000 direct and indirect jobs, and $5.2 billion dollars in economic impact annually for the state.
What the HISA does
The final version of the HISA was signed into law Dec. 27, 2020, by then-President Trump, perhaps intentionally attached as a rider to a bill providing popular COVID-19 government relief. It was made effective no later than Jul. 1, 2022.
Two lawsuits that challenged the law as unconstitutional were dismissed in March 2022 pending appeal. A final court challenge to issue a restraining order days before the law’s enactment was deferred.
The law’s stated purpose is broader than that of the failed bills that preceded it:
“To improve the integrity and safety of horseracing by requiring uniform safety and performance standards, including a horseracing anti-doping and medication control program and a racetrack safety program to be developed and enforced by an independent Horseracing Integrity and Safety Authority, [HISA] and for other purposes.”
The law places the HISA under the oversight of the FTC, the Federal Trade Commission. The Authority consists of a Chief Executive Officer and nine board members, five from outside the industry, or “independent,” four from industry stakeholders, all with experience in the areas in which regulations are to be established and enforced under the law.
As with other regulatory authorities, the HISA is to propose regulations, accept and respond to public comment prior to enactment.
Lisa Lazarus was tapped in February from the Morgan Sports Law Firm to serve as CEO of HISA. She previously worked at the Fédération Equestre Internationale (FEI) and for a decade on the labor relations counsel of the National Football League.
Interviewed on Lexington’s WKYT Jun. 30, Lazarus summarized racing’s problem and the reason for the new law:
“This industry has been operating the way it’s been operating for centuries. Horse racing is really the only sport [and] industry that doesn’t have one national governing body, one national uniform set of rules. I believe that’s incredibly important to make the sport safer and fairer, but also for the public image of the sport.”
At its inaugural meeting in May, the HISA board elected attorney Charles Sheeler as Chair. Sheeler served as lead counsel to Sen. George Mitchell in his investigation into the use of performance-enhancing substances in Major League Baseball, resulting in The Mitchell Report.
The law sets out three areas that will be the focus of HISA’s rulemaking:
- Implementation and enforcement of the horseracing anti-doping and medication control program;
- Creation and implementation of a racetrack safety program; and
- Measures to ensure the welfare and safety of horses, jockeys and racetrack personnel.
The HISA will have the same authority formerly held by those states that sponsor racing. That authority will remain in effect for five years after which time states would have to opt in to remain under HISA’s guidance.
Preliminary guidelines for the anti-doping and medication program already exist and will go into effect Jan. 1, 2023, if approved.
Seven rules immediately went into effect. They govern the use of whips in races, enhanced safety requirements for jockeys, other safety requirements and veterinary reporting obligations. All state-licensed racing personnel were obligated to register with HISA by Jul. 1.
Anticipated rules to some extent are expected to mirror those implemented at Santa Anita, which enjoyed its safest season this year, and at Golden Gate Fields. New Jersey’s Monmouth Park had already implemented restrictions on the use of whips.
The law states in its text that prohibited substances cannot be used within 48 hours of a horse’s scheduled race, but states can seek exemptions for a particular medication.
Interestingly, only one substance is stated in the law’s text as ineligible for exemption, and in only two circumstances. Furosemide—Lasix—cannot be exempted for two-year-olds nor exempted for horses running in stakes races.
The former prohibition is likely intended to avoid masking a possible genetic predisposition to bleeding. This would help prevent “bleeders” from becoming “breeders” and passing along the flawed gene.
The second prohibition is likely intended to assure bettors that horses are competing on a level playing field in major stakes races where the “handle”—the amount wagered—is often large and the race outcome can be suspect.
While the law is intended to apply to Thoroughbreds, states can also request other breeds be covered.
Save for the annual Triple Crown and Breeders’ Cup events, interest in live racing has waned since its most recent glory days in the 1970s. Fields are smaller, racetracks fewer. Iconic tracks like Hollywood Park and Arlington Park have closed. A leisurely day at the races with a beer and a hotdog has become less appealing to mobile, time-pressured, potential young fans. Public scrutiny has increased, particularly in the aftermath of recent substance-abuse scandals.
But even as these negative pressures weigh on live attendance, the “handle” consistently increases, due largely to remote betting online and visitors to casinos, “racinos” as they are called.
Motivated by money and tradition, no one associated with racing, in the industry or as a long-time fan, wants to see the sport shrivel further.
“This has to work,” concludes Lazarus. “This is horse racing’s moment in time. HISA cannot fail.”
