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UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
__________________________________________
)
In the Matter of
)
)
Jason Scott, DVM,
)
)
Appellant.
)
__________________________________________)
Docket No. 9449
ADMINISTRATIVE LAW JUDGE DECISION
ON APPLICATION FOR REVIEW
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ i
TABLE OF ABBREVIATIONS .................................................................................... iii
I.
OVERVIEW OF THOROUGHBRED HORSERACING’S REGULATORY
STRUCTURE........................................................................................................ 2
II.
STATEMENT OF FACTS. ................................................................................... 4
A.
HIWU’s Search at Sunland Park. ............................................................ 6
B.
HIWU Charges Dr. Scott with Possession Violations............................. 8
C.
The Arbitrator’s Decision. ...................................................................... 10
III.
ISSUES ON REVIEW. ....................................................................................... 13
IV.
SCOPE OF REVIEW. ......................................................................................... 14
V.
ANALYSIS OF THE ISSUES. ........................................................................... 16
A.
HIWU’s Possession Charges. ................................................................. 16
1. AMP and Sarapin: What Are They? .............................................. 16
a.
AMP...................................................................................... 16
b.
Sarapin ................................................................................. 19
2. ADMC Rule Treatment of Sarapin and AMP: Is Each a
“Banned Substance”?...................................................................... 24
a.
Category S6: Sarapin........................................................... 25
b.
Category S0: AMP. .............................................................. 26
B.
Dr. Scott’s Compelling Justification Argument. ................................... 39
1. Dr. Scott’s Practice. ........................................................................ 40
2. Dr. Scott’s “Documentary” Proof. ................................................... 44
3. Assessment of Dr. Scott’s Data Extracts. ...................................... 52
4. Sarapin Use by Other Veterinarians. ............................................ 57
5. New Mexico Law and NMRC Enforcement................................... 60
a.
Racetrack Law and Regulation. .......................................... 61
i.
Compounded Substances. ......................................... 63
i
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C.
D.
E.
VI.
ii.
AMDUCA. ................................................................. 64
iii.
FDA Policy GFI #256. ............................................... 67
b.
NMRC Enforcement at Sunland Park. ............................... 71
c.
The Parties’ Post-Search “Evidence.” ................................. 76
DR. SCOTT’S JURISDICTIONAL OBJECTIONS FAIL. .................... 80
DR. SCOTT’S RULEMAKING ARGUMENTS ARE
MERITLESS. .......................................................................................... 86
1. The Possession Rule. ...................................................................... 88
2. The Compelling Justification Defense........................................... 91
3. The “WADA Alternative” Argument. ............................................ 92
4. The “Deceptive Baseline” Argument. ............................................ 93
5. The “Unexplained Deviations” Argument. .................................... 97
6. The “Covered Persons Effects” Argument. .................................... 98
Dr. Scott’s Public Nondelegation Argument Fails. ............................. 100
SANCTIONS..................................................................................................... 102
A.
The Ineligibility Period. ....................................................................... 104
B.
The “Backdate” Ruling. ........................................................................ 105
C.
The Fine Amount.................................................................................. 106
D.
Adjudication Costs................................................................................ 107
E.
Relief with Respect to the Sanctions Rulings. .................................... 108
1. Whether or Not to Remand to the Arbitrator. ............................ 108
2. Remand to the Arbitrator on the Ineligibility Period and Fine. 113
3. No Remand for the Backdating Ruling. ...................................... 115
F.
The Stay of Sanctions. .......................................................................... 117
VII. CONCLUSION. ................................................................................................ 117
ii
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TABLE OF ABBREVIATIONS
General
ADMC – Anti-Doping and Medication Control Program
AMDUCA – Animal Medicinal Drug Use Clarification Act of 1994
ARCI – Association of Racing Commissioners International
Authority – Horseracing Integrity and Safety Authority
HISA – Horseracing Integrity and Safety Act, 15 U.S.C. §§ 3051-60
HIWU – Horseracing Integrity & Welfare Unit
BVM – New Mexico Board of Veterinary Medicine
NMAC – New Mexico Administrative Code
NMRC – New Mexico Racing Commission
Review Proceeding
AB – Appeal Book
AuOBr. – Authority’s Opening Brief
AuPFOF – Authority’s Proposed Findings of Fact
AuPCOL – Authority’s Proposed Conclusions of Law
AuPO – Authority’s Proposed Order
SOBr. – Scott’s Opening Brief
SPFOF – Scott’s Proposed Findings of Fact
SPO – Scott’s Proposed Order
iii
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SRBr. – Scott’s Reply Brief
SRPFOF – Scott’s Reply to Authority’s Proposed Findings of Fact
SRPCOL – Scott’s Reply to Authority’s Proposed Conclusions of Law
Tr. – Transcript of July 22, 2026 Oral Argument Hearing
Other Cases
McCrosky
- Matter of McCrosky, No. 9448, 2026 WL 1633298 (FTC ALJ June 2, 2026)
Overly
- Matter of Overly, No. 9443, 2026 FTC LEXIS 61 (ALJ Jan. 27, 2026), vacated
and remanded, 2026 FTC LEXIS 64 (July 21, 2026)
Perez
-
Matter of Perez, No. 9420, 2024 FTC LEXIS 206 (ALJ Feb. 7, 2024)
Scott v. HISA
- Scott v. Horseracing Integrity & Safety Authority, No. 2:25-cv-632-SMD-GJF,
2025 WL 2987598 (D.N.M. Oct. 22, 2025)
Scott Order
- Matter of Scott, No. 9449, 2026 WL 2111924 (FTC ALJ July 16, 2026)
Shell II
- Matter of Shell, No. 9439, 2025 WL 1784696 (FTC ALJ Mar. 6, 2025)
iv
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This is a disciplinary case against a veterinarian, Dr. Jason Scott, who
possessed two allegedly Banned Substances on his veterinary SUV while at a
racetrack covered by the federal Horseracing Integrity and Safety Act (“HISA”). 1
The Possession charges were heard by an arbitrator who, after an evidentiary
hearing, found liability proven and awarded sanctions against Dr. Scott that
include:
(1) an 18-month period of Ineligibility, during which he may not provide
veterinary services at a racetrack subject to HISA; and
(2) a $25,000 monetary fine and $5,000 payment of adjudication costs.
As HISA authorizes, Dr. Scott seeks de novo review of the Arbitrator’s
decision and the sanctions imposed. 2 He seeks to overturn the disciplinary decision
for various reasons, the more significant of which are that: (1) his factual showing
satisfies the defense of “compelling justification,” which if proven negates otherwise
wrongful Possession of Banned Substances; and (2) in any event, there is no
jurisdiction over him under HISA or its implementing rules.
As set forth below, I hold that: (1) one of the Possession charges must be
affirmed, while the other is reversed; and (2) the sanctions the arbitrator awarded,
for the most part, must be set aside, and I am remanding them for further
consideration.
1 15 U.S.C. §§ 3051-60. Capitalized terms used, but not defined, in this Decision, are from ADMC
Rule 1020 of the Rules implementing HISA’s statutorily-prescribed anti-doping and medication
control program, discussed below. Other abbreviations are set forth in the Table of Abbreviations.
References to a “Rule” are to those promulgated under HISA, unless otherwise identified.
2
See 15 U.S.C. § 3058; FTC Rules 1.145-.148.
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I.
OVERVIEW OF THOROUGHBRED HORSERACING’S REGULATORY
STRUCTURE.
Congress enacted HISA in 2020 to provide national uniformity to safety and
substance control in the nation’s thoroughbred racing industry. Congress charged
the Horseracing Integrity and Safety Authority (the “Authority”), a private,
independent, self-regulatory, nonprofit corporation, with responsibility to “develop[]
and implement[] a horseracing anti-doping and medication control program”
throughout the United States. 3 The Authority promulgated, and the Federal Trade
Commission approved, regulatory rules creating the statutorily-required antidoping and medication control (“ADMC”) Program. HISA and its implementing
Rules apply to Covered Persons, which include Veterinarians who treat Covered
Horses, such as Dr. Scott. 4
Among other things, the ADMC Program Rules address: (1) the substances
that are banned outright or subject to threshold presence requirements, or are
regulated as controlled medications; and (2) the conduct constituting Anti-Doping
Rule Violations (“ADRVs”) and their corresponding sanctions. 5 Under the ADMC
Program, the more serious ADRVs involve Banned Substances, which are set out in
the Prohibited List issued by the Authority. Banned Substances are “prohibited at
all times” and “should never be in a horse’s system . . . as they serve no legitimate
3 15 U.S.C. § 3052(a).
4
See Rule 1020 (definition of Covered Person).
5
See generally ADMC Rule 3000 series.
2
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treatment purpose.” 6 The Horseracing Integrity and Welfare Unit (“HIWU”), with
whom the Authority has contracted, enforces the ADMC Program Rules. 7 HIWU
charges to adjudicate ADRVs are heard by an Internal Adjudication Panel, which
may, as here, consist of a single arbitrator. 8
ADMC Rule 3214(a) prohibits “Possession of a Banned Substance . . . unless
there is compelling justification for such Possession.” The Rule imposes strict
liability, regardless of knowledge or intent, absent an exception that is inapplicable
here. 9 The Rule, and its defense, are comparable to Article 2.6 of the Fédération
Équestre Internationale’s (“FEI’s”) Equine Anti-Doping and Controlled Medication
Regulations (“EADCM Regulations”). 10
6 Rule 3010(c).
7
See also Rules 1020 (definition of ADRV), 3111(a) (Prohibited Substances).
See 15 U.S.C. §§ 3054(e)(1)(B)-(E), 3055; Rules 3010(e)(1), 5720(a).
8 Rules 3360, 7020.
See Matter of Shell, No. 9439, 2025 WL 1784696, at *11, n.16
(FTC ALJ Mar. 6, 2025) (“Shell II”); HIWU v. Poole, JAMS Case No. 1501000576, at ¶¶ 7.7-.8 (Aug.
8, 2023), aff’d sub nom. Matter of Poole, No. 9417, 2023 WL 8435860 (FTC ALJ Nov. 13, 2023).
9 Rule 1020 (definition of Possession).
10 FEI EADCM Regulations at 6 (4th ed. effective Jan. 1, 2025) (Article 2.6, prohibiting possession,
“unless [the Person Responsible or their Support Personnel] demonstrate compelling justification”),
https://inside.fei.org/sites/default/files/EADCMRs%20Final%20Draft%20effective%201%20January%202025%20-%20clean.pdf.
3
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II.
STATEMENT OF FACTS. 11
Dr. Scott is a licensed veterinarian, with over two decades of experience
treating racehorses in New Mexico. 12 He practices “entirely from a mobile truck,
which permits [him] to treat equine athletes where they are housed, which may be a
racetrack, training facility, or farm.” 13 A majority of his practice treats quarter
horses, which are not Covered Horses under HISA, while the rest are Covered
Horses. 14 New Mexico’s Sunland Park racetrack is referred to as a “mixed meet”
track, which means it hosts races for non-Covered quarter horses, typically during
two consecutive days in the week, with Covered thoroughbred horses racing, again
typically, on two other consecutive days. 15
Although HISA does not currently cover quarter horse racing, a brief
description provides useful background. Quarter horse races “are decided over 220
11 Preliminarily, insofar as may be necessary, I over-rule Dr. Scott’s objections to the testimony of
Dr. Dionne Benson, HIWU’s expert, and to the limited parts of the testimony of Ismael Tréjo, the
New Mexico Racing Commission’s (“NMRC’s”) Executive Director, a witness called by HIWU. Scott
Ruling on Objections ¶¶ 23-26. Dr. Benson, a licensed veterinarian, has had varied and extensive
experience in equine health and welfare, and sport matters. See, e.g., AB 2051-61 (Benson CV),
5822-30, 5883-85 (Benson). She is qualified to testify as an expert on veterinary compounding laws,
as well as on the other matters as to which her testimony was adduced. For Mr. Tréjo, Dr. Scott’s
objection goes only to the weight of the evidence, not to its admissibility.
12 AB 5231, at ¶ 2 (Scott wit. stmt.), 6210-11, 6220-22 (Scott).
13
Id. 5231, at ¶ 3, 6210.
14
Id. 5231, at ¶ 4, 6226-27.
See AB 135 (Scott letter), 5199, at ¶ 15 (Scott pre-hearing brief listing race dates for quarter
horses in January and February 2025), 6313-14, 6283-84 (Scott). See, e.g., Sunland Park 2025 Stakes
Schedule, https://sunland-park.com/wp-content/uploads/2024/09/SunlandPark_StakesSchedule
_2025.pdf; 2026 Sunland Park Live Racing Schedule, https://sunland-park.com/wp-content/uploads/
2025/09/2026_HorseRacingCalendar.pdf.
15
4
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to 440 yards and raw explosive strength is the primary determinant of outcome.” 16
The sport is “demanding,” requiring the quarter horse to “run[] at their maximum
effort for the entirety of the race.” 17 This emphasis on short-term speed “creates
unusually strong incentives for muscle-enhancing drugs.” 18
While quarter horse races “lack the ebb-and-flow suspense of a longer
thoroughbred race, they make up for it in a pure adrenalin rush. The best quarter
horses can hit nearly 50 miles an hour.” 19 An investigative report, published before
Congress enacted HISA, found that, compared to thoroughbreds, “quarter horses
have a nearly 29 percent greater chance of breaking down or showing signs of
injury. . . . Breakdowns can be caused by a variety of factors, including poor track
surface and jockey mistakes. But drugs, often used to mask existing injuries, are
the prime suspect.” 20 Ismael Tréjo, NMRC Executive Director, testified here that
the State’s “catastrophic injury rate was 4.3, 4.5 per 1,000 starts,” while the
16 Miles Henry, Performance-Enhancing Drugs in Horse Racing: What Trainers Use and Why It
Matters, Horse Racing Sense (last updated July 28, 2026), https://horseracingsense.com/
performance-enhancing-drugs-in-horse-racing/#ped-history.
17 AB 5231, at ¶ 10 (Scott wit. stmt.).
18 Henry, Performance-Enhancing Drugs.
et al., Mangled Horses, Maimed Jockeys, NYTIMES (Mar. 24, 2012),
https://www.nytimes.com/2012/03/25/us/death-and-disarray-at-americas-racetracks.html. See also
Patrick Battuello, Juicing via Frogs, Horseracing Wrongs (Oct. 27, 2013) (“On a single day in May
2012, 8 New Mexico Quarter Horses tested positive for dermorphin,” known as “frog juice”),
https://horseracingwrongs.org/2013/10/27/juicing-via-frogs/.
19 Bogdanich,
20 Bogdanich,
et al., n.19, above.
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“national average is probably a hair below one per 1,000. So, we have a high rate of
catastrophic injuries with the quarter horses here in New Mexico.” 21
A.
HIWU’s Search at Sunland Park.
During a February 2025 search of Dr. Scott’s SUV at Sunland Park, HIWU
found two bottles of both: (1) Sarapin; and (2) adenosine monophosphate (“AMP”). 22
Briefly, Sarapin, an extract from Pitcher Plant, is said to reduce pain and
inflammation in the spine or back area of a horse, while AMP has been considered a
vasodilator, relaxing muscles to ease blood flow and reduce pain. 23 However, neither
substance is FDA-approved. 24 Under the ADMC Program Rules, Sarapin is
expressly identified as a category S6 Banned Substance. Although the ADMC Rules
do not similarly identify AMP, HIWU contends that it also is a Banned Substance
under category S0, a catch-all that covers medications that meet prescribed
criteria. 25
HIWU investigators found one Sarapin bottle, labeled Pitcher Plant, in the
cabinet in the rear cargo area of Dr. Scott’s SUV, and the other in a blue “tote” bag
21 AB 5757-58 (Tréjo).
See also Bogdanich (discussing breakdowns at New Mexico racetracks).
See generally AB 1970-72 (SUV search photos), 1996-2001, 2007-12 (Sarapin photos), 2018-23,
2029-34 (AMP photos), 5610, 5613-14, 5636-38 (Bennett), 6274-81 (Scott) (describing the search).
22
See AB 136-37 (Scott letter), 5264-65, at ¶¶ 25-27, 30-31 (Fenger Exp. Rep.), 5834-35 (Benson);
Shell II, 2025 WL 1784696, at *5.
23
24 AB 243-44, 245 at ¶¶ 15, 19 (Benson Exp. Rep.), 5517-18, at ¶¶ 36-38 (Benson Supp. Exp. Rep.),
5835, 5861-64, 5866-67, (Benson); AuPFOF ¶¶ 61-63.
25 Rules 4111 & 4117(a); AB 119 (EAD Notice); AB 5840 (Benson).
6
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located in the SUV’s folded down back seat. 26 Both AMP bottles were in the
cabinet. 27 The tote bag’s items included alcohol swabs and syringes: “If you had to
go in and treat an animal, he had the things that he needed to do an injection in
that tote.” 28
On the day of the search, only Covered Horses were racing. 29 Prior to the
search itself, Dr. Scott had treated at least one Covered Horse that day. 30 Dr. Scott
testified that the Sarapin in his tote “could possibly have been in the container”
when he took it to treat a Covered Horse. 31
Since AMP and Sarapin lack FDA approval, they can only be obtained in this
country as compounded substances. 32 “Compounding,” in this context, refers to
“combining, mixing, or altering ingredients to create a medication tailored to the
needs of an individual animal or a small group of animals. . . .” 33
26 AB 172 (Photos), 5636-37 (Bennett).
27
Id. 5637.
28
Id. 5638.
29
Id. 5643.
30
Id. 6275, 6313 (Scott).
31
Id. 6312-13.
32
Id. 5839-40, 5863-64 (Benson).
33 FDA, Animal Drug Compounding, https://www.fda.gov/animal-veterinary/unapproved-animal-
drugs/animal-drug-compounding. See also AB 4033 (Veterinary Compounding paper) (“Compounding
that is consistent with the FDA Extra-Label Drug Use regulations is the customized manipulation of
an approved drug(s) by a veterinarian, or by a pharmacist upon the prescription of a veterinarian, to
meet the needs of a particular patient.”).
7
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Currently, neither AMP nor Sarapin can be reliably identified in anti-doping
testing. 34 Therefore, it’s not possible “to separate what’s exogenously administered
or given to the horse versus what is endogenous or normally in the horse.” 35
Accordingly, the ADMC Rules “control [them] for possession”—by “controlling
access.” 36 The Authority thus contends that Veterinarians and other Covered
Persons are prohibited from having either substance while at racetracks covered by
HISA unless they can show a “compelling justification” for having the substance.
B.
HIWU Charges Dr. Scott with Possession Violations.
Following the search and seizure of the Sarapin and AMP bottles, HIWU
served Dr. Scott with its EAD Notice of two Possession ADRVs. 37 Dr. Scott
responded by letter to HIWU, explaining that Sunland Park was a mixed meet
racetrack and that his practice involved treating both thoroughbreds covered by
HISA and quarter horses that are not. 38 He further stated:
I am clearly aware that Sarapin is not to be administered to covered
thoroughbred horses and it is not my practice to administer Sarapin to
thoroughbreds in violation of HISA rules regarding banned substances, and I
have not.
....
34 AB 5830-31 (Benson).
See also Shell II, 2025 WL 1784696, at *5 (discussing Sarapin).
35 AB 5831, 5836-37, 5923-27, 5993-94 (Benson).
36
Id. 5931, 5969 (Benson). See also id. 1026, at ¶ 16 (Benson Supp. Exp. Rep.).
37
Id. 118, 119-20 (EAD Notice).
38
Id. 135 (Scott letter).
8
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In deference to HISA rules relating to treatment of covered thoroughbreds, I
do not treat thoroughbred race horses with Adenosine Phosphate [AMP]. 39
He further submitted two letters from the State’s Board of Veterinary Medicine
(“BVM”) to the NMRC, both of which expressed the view that New Mexico law
permitted veterinarians to “administer compounded drugs as well as allow[] the
practice of extra label use of drugs.” 40 Dr. Scott asked HIWU to appreciate his
position, bearing in mind “the lack of guidance to enable veterinarians with
practices similar to mine to follow in good faith,” while asserting his “best efforts to
properly, professionally, and ethically treat the horse population” entrusted to
him. 41
After reviewing Dr. Scott’s letter response, HIWU remained unconvinced and
issued its EAD Charge letter asserting two ADRVs for Possession of two Banned
Substances. 42 HIWU advised Dr. Scott that, “for each first-time Violation,” it would
seek “[a] period of Ineligibility of two years” and “fine of $25,000 USD and payment
of some or all of the adjudication costs. . . . [Y]our combined Period of Ineligibility
would be four (4) years, and the combined fine would be $50,000 USD.” 43
39
Id. 136, 137.
40
Id. 140 & 142 (2014 and 2025 BVM letters).
41
Id. 138 (Scott letter).
42
Id. 145 (EAD charge letter).
43
Id. 146 (emphasis in original).
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Shortly thereafter, Dr. Scott filed a federal suit in the District of New Mexico,
seeking a preliminary injunction against the HIWU proceeding, which the District
Court denied. 44 That case is pending, and being held in abeyance pending the
decision on this review. 45
C.
The Arbitrator’s Decision.
An arbitration proceeding was begun to adjudicate HIWU’s charges. 46 Prehearing proceedings included four motions in which Dr. Scott sought dismissal
based on: (1) alleged lack of arbitration subject matter jurisdiction; (2) the alleged
invalidity of the Possession Rule; (3) the alleged invalidity of Rule 4111, the basis
for the ADRV based on S0 categorization of AMP as a Banned Substance, and Rule
4117(e), listing Sarapin as a S6 Banned Substance; and (4) summary disposition for
lack of arbitration jurisdiction. 47 The Arbitrator denied all the motions without
prejudice to their reassertion at the arbitration hearing. 48 Insofar as issues from
these motions are now germane to this review proceeding, I discuss them below.
44
Scott v. Horseracing Integrity & Safety Authority, No. 2:25-cv-632-SMD-GJF, 2025 WL 2987598
45
Id., ECF No. 59 (Order Apr. 10, 2026).
(D.N.M. Oct. 22, 2025) (“Scott v. HISA”).
46 AB 7 (HIWU initiating letter), 46 (JAMS notice commencing arbitration).
Id. 2721 (Notice of Objections), 5058, 5115, 5138 (Scott Supporting Briefs), 5399 (Summary
Disposition Motion).
47
48
Id. 5410 (Order Denying Pre-Hearing Motions).
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At the arbitration hearing itself, witnesses for both sides, including experts,
testified, and documentary evidence was received. In his resulting decision, the
Arbitrator made the following award:
A period of ineligibility of eighteen (18) months from the date of the initial
inspection (February 13, 2025) for possession of two prohibited substances.
The 18 month period of ineligibility will expire on August 13, 2026.
A fine of $25,000 and a payment of $5,000 in adjudication costs based upon
all of the facts and evidence presented. 49
The reasoning underlying this sanctions award is opaque, however. For example:
•
A central focus of the parties’ evidentiary presentation was Dr. Scott’s
assertion that he satisfied Rule 3214(a)’s compelling justification defense.
The Arbitrator recognized the issue and, by awarding sanctions, implicitly
found Dr. Scott’s evidence insufficient. But the Arbitrator did not explain why
Dr. Scott’s proof fell short. 50
•
Rule 3223(b) provides that, for a first offense Possession ADRV, the
period of Ineligibility is “2 years.” The two-year period can be eliminated if No
Fault or Negligence (“NF”) is shown, or reduced based on proof of No
Significant Fault or Negligence (“NSF”). 51 Dr. Scott argued to the Arbitrator
that both defenses applied. 52 However, in awarding 18 months Ineligibility,
49
Id. 7678 (Final Decision).
50
See id. at 7651-52, at ¶¶ 2.43-.51 (“Dr. Scott’s Asserted Compelling Justification at the Hearing”).
51 Rules 3224(a) and 3225(a).
52 See AB 7202, 7204, at ¶ 8, 7212-14, at ¶¶ C.1-17 (Proposed Disposition C, based on NF), 7214-17,
at ¶¶ D.1-10 (Proposed Disposition D, based on NSF).
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the Arbitrator did not mention either one, nor provide any explanation that
accounts for the six-month Ineligibility reduction. Application of Dr. Scott’s
compelling justification evidence cannot be an answer because that defense,
“an exception” to Rule 3214(a), excuses Possession entirely. 53 It does not
mitigate the severity of otherwise appropriate sanctions, a mission that the
NSF defense performs.
•
The Arbitrator recognized that HIWU charged two ADRVs, one for
Possession of Sarapin and the second for AMP. 54 Sanctions for each proven
ADRV could have been awarded, and consecutive Ineligibility periods and
aggregated fines were arguably appropriate under Matter of Overly, 55 a
decision that HIWU submitted. However, the Arbitrator awarded only a
single set of sanctions. There is no explanation for that determination.
On this review, the Authority argues that the Arbitrator’s sanctions award is
erroneous. 56 It contends that:
1. A 24-month period of Ineligibility should be awarded for each of the
two Possession ADRVs, with the two periods running consecutively for a total
of 48 months’ Ineligibility.
53
See Scott v. HISA, 2025 WL 2987598, at *7; Shell II, 2025 WL 1784696, at *12.
See also id. 7676 (“Dr. Scott had two prohibited substances at a Covered
Racetrack on a day covered Thoroughbreds were running.”).
54 AB 7651, at ¶ 2.41.
55 No. 9443, 2026 FTC LEXIS 61, at *3-4 (ALJ Jan. 27, 2026),
LEXIS 64 (July 21, 2026).
56 AuPCOL ¶¶ 13-18,, 20.a & b; AuOBr. at 15, 22-23, 27.
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2. Backdating the Ineligibility’s start date to the date of HIWU’s
search was erroneous. Although Rule 3223(c) authorizes backdating
Ineligibility under prescribed circumstances, Dr. Scott never met the Rule’s
required elements.
3. Like Ineligibility, individual fines should have been awarded for
each violation. Although the fine amount is discretionary—“up to” a $25,000
maximum—two fines of $25,000 each, or $50,000, should have been awarded.
By motion at the time of the merits briefing of this review, Dr. Scott argued,
however, that, because the Authority’s objections, if found meritorious, would
require an upward sanctions adjustment, I lacked jurisdiction to rule on them. I
rejected Dr. Scott’s argument and denied his motion, while writing in pertinent part
that:
I am not . . . deciding whether the Authority prevails on the upward sanctions
adjustments it has asserted. Nor am I deciding the appropriate relief if I were
to rule in the Authority’s favor. These matters will be handled in the merits
decision. 57
Accordingly, these reserved issues are resolved in this decision.
III.
ISSUES ON REVIEW.
Below, I will discuss the following issues:
57
Matter of Scott, No. 9449, 2026 WL 2111924, at *2 (FTC ALJ July 16, 2026) (“Scott Order”).
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1. Did HIWU prove the two ADRVs charged? This requires discussing: (a) the
nature of AMP and Sarapin; (b) their treatment under the ADMC Program; (c) their
use by Dr. Scott; and (d) HIWU’s contention that both are Banned Substances.
2. Did Dr. Scott prove he had a compelling justification for Possession of
either Sarapin or AMP at the time HIWU searched his SUV?
3. In view of Dr. Scott’s practice treating non-Covered quarter horses, was
there jurisdiction under HISA for HIWU to charge Possession ADRVs against him
and to require that he prove, as a defense, compelling justification?
4. Did Dr. Scott demonstrate that Rule 3214(a), covering Possession, was not
properly approved by the FTC?
5. Does HISA violate the public non-delegation doctrine?
6. What relief, if any, with respect to sanctions should be ordered?
IV.
SCOPE OF REVIEW.
HISA-imposed sanctions for ADRVs, arising as here from an arbitration, are
reviewable by an FTC Administrative Law Judge (“ALJ”), and thereafter by the
Commission itself on a discretionary basis. 58 The ALJ reviews:
“whether—
(i) a person has engaged in such acts or practices, or has omitted such acts or
practices, as the Authority has found the person to have engaged in or
omitted;
58 15 U.S.C. §§ 3058(b)-(c); FTC Rules 1.146-.147.
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(ii) such acts, practices, or omissions are in violation of this [chapter] or the
anti-doping and medication control or racetrack safety rules approved by the
Commission; or
(iii) the final civil sanction of the Authority was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 59
The ALJ’s review of the Arbitrator’s decision is de novo, which means that
“the [ALJ] does not defer to the [Arbitrator’s] ruling but freely considers the matter
anew, as if no decision had been rendered below.” 60 The ALJ must determine the
merits of the charged ADRVs, and whether the sanctions the Authority imposed
were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 61 In exercising review authority, the ALJ may “affirm, reverse, modify,
set aside, or remand for further proceedings, in whole or in part” and “make any
finding or conclusion that, in [their] judgment . . . is proper and based on the
record.” 62
59 15 U.S.C. § 3058(b)(2)(A).
See also FTC Rule 1.146(b)(1)-(3).
Bartolome v. Sessions, 904 F.3d 803, 812 (9th Cir. 2018) (construing de novo review by an
immigration judge). See also Harris v. Lincoln Nat’l Life Ins. Co., 42 F.4th 1292, 1295 (11th Cir.
2022) (“De novo means . . . a fresh, independent determination of the ‘matter’”) (quoting with
approval Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987)); Reyes-Colón v. United States,
974 F.3d 56, 60 (1st Cir. 2020) (“review . . . de novo . . . is a legalistic way of saying we critique the
judge’s decision without giving any deference to his views”); Amparan v. Lake Powell Car Rental
Cos., 882 F.3d 943, 947 (10th Cir. 2018) (“[A] district court’s grant of summary judgment [is
reviewed] de novo,” and “[i]n so doing, we need not defer to factual findings rendered by the district
court.”) (internal quotation marks omitted); Aquarius Marine Co. v. Pena, 64 F.3d 82, 87 (2d Cir.
1995) (on de novo review, the appellate court “give[s] no deference to the lower court”).
60
61 15 U.S.C. § 3058(b)(2)(A)(iii); FTC Rule 1.146(b)(1)-(3).
62 15 U.S.C. § 3058(b)(3)(A)(ii)-(iii); FTC Rule 1.146(d)(3).
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V.
ANALYSIS OF THE ISSUES.
The crux of this case is whether HIWU proved the two Possession ADRVs
charged, and if it did, whether Dr. Scott demonstrated compelling justification as a
defense. Other issues Dr. Scott has raised are mostly distractions. Accordingly, I
begin with discussion of HIWU’s Possession charges and Dr. Scott’s contention that
he has satisfied Rule 3214(a)’s compelling justification defense. After that, I address
the other defenses Dr. Scott raises.
A.
HIWU’s Possession Charges.
1.
AMP and Sarapin: What Are They?
a.
AMP
AMP was initially marketed as a vasodilator with anti-inflammatory
effects. 63 Some have also suggested that “it creates energy and energy is a currency
for race horses. . . . [B]ut we don’t know that.” 64 However, in 1973, the FDA found
that AMP was “neither safe nor effective for its intended uses” and directed its
“removal . . . from the market.” 65 The FDA has stated publicly that AMP is
63 AB 2043, at ¶ 19 (Benson Exp. Rep.), 5834-35 (Benson).
64
Id. 5970 (Benson). See also id. 2043, at ¶ 19 (Benson Exp. Rep.), 5964 (Benson).
Id. 268-69 (FDA Briefing Document). See id. 269 (clarifying that removal applies to “mono-, di- and
tri- phosphate. . . .”), 322, at ¶ 6 (2015 FDA review memo summarizing evaluation), 5843-44
(Benson).
65
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“basically like giving a placebo. . . .” 66 Dr. Dionne Benson, HIWU’s expert, explained
further:
[W]hat [the FDA] said is the benefit of using AMP was so low because it had
such a short half-life when given intramuscularly, that it was outweighed by
the risk, because if it got injected by accident, aiming for an artery, it could
potentially be very much like adenosine, which you only get in a hospital
setting. 67
More specifically, if “accidentally given intravenously,” AMP could lead to
“potentially fatal cardiac dysrhythmias and bronchospasm [heartbeat irregularity
and contraction of the bronchial tubes].” 68 As Wedgewood Pharmacy, a
manufacturer, wrote in nominating AMP for addition to the FDA’s List of Bulk
Drug Substances for Compounding: “Accidental injection into the vein may result in
rapid decrease in blood pressure, resulting in death.” 69 The FDA denied
Wedgewood’s nomination:
The nomination did not contain sufficient information to establish that
urgent treatment with a drug compounded from adenosine monophosphate
66
Id. 343 (Pharmacy Advisory Committee proceedings). See also id. 2043, at ¶¶ 19, 20 (Benson Exp.
Rep.), 5834-35, 7483 (Benson).
67
Id. 5838 (Benson).
68
Id. 2043, at ¶ 20 (Benson Exp. Rep.).
Id. 7383 (Wedgewood AMP nomination to the bulk drug list). See also id. 2095 (FDA Advisory
Committee proceeding) (The substance “does have severe side effects if not used properly. . . .”); Ceva
Austl., AMP 5 Injection, https://www.ceva.com.au/Products/Products-list/AMP-5-Injection (“AMP-5
must ONLY be administered by intramuscular injection, or paste formulation. Do not administer
AMP-5 injection by the intravenous route under any circumstances. This may lead to a profound
rapid drop in blood pressure, with collapse, and even death.”) (capitalization in original).
69
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BDS is necessary to avoid animal suffering or death, or to protect public
safety. 70
With the FDA’s 1973 removal directive, AMP ceased to be marketed in the
United States. 71 And because AMP is not FDA-approved, “you don’t have
information on safety, stability, efficacy, purity,” while the risks remain. 72
Currently “[t]here are no FDA approved veterinary manufactured products
containing [AMP] as a sole active ingredient available in the United States.” 73
Dr. Scott uses AMP as a prophylactic to treat the risk that a quarter horse
patient may experience “exertional rhabdomyolysis”—the breakdown of muscle
tissue from extreme physical exertion—which manifests itself in cramping, referred
to as “tying up.” 74 The condition can be “life-threatening for a horse.” 75 He therefore
testified, “[o]bviously” he had to have AMP on his SUV when he was at a racetrack:
“how could you treat a quarter horse if you didn’t have the medication available?” 76
Scientific literature supporting AMP’s use for tying up does not exist, while
70 FDA, Bulk Drug Substances Reviewed and Not Listed, https://www.fda.gov/animal-
veterinary/animal-drug-compounding/bulk-drug-substances-reviewed-and-not-listed; AB 7381
(Wedgewood AMP nomination), 7359 (Bulk Substances Currently Under Review).
See also id. 2084 (FDA Review
Document) (“FDA has never approved an NDA or ANDA containing any adenosine phosphate.”).
71 AB 2043, at ¶ 19 (Benson exp. report), 5843-44 (Benson).
72 AB 5839 (Benson).
73
Id. 7382 (Wedgewood AMP nomination).
74
Id. 5231-32, ¶¶ 10-12 (Scott wit. stmt.), 5264, at ¶¶ 26-27 (Fenger Exp. Rep.), 6317-18 (Scott).
Id. 6082 (Fenger). See also Matter of Kriple, No. 9446, 2026 FTC LEXIS 25 (ALJ Mar. 4, 2026)
(disciplinary proceeding against a trainer whose horse died from tying up).
75
76 AB 6240-41 (Scott).
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alternative treatments are available. 77 Nevertheless, despite AMP’s risks and its
characterization as a placebo, the substance’s use at racetracks seemingly persists,
Mr. Tréjo testified, “to stave off fatigue.” 78
Since AMP is not FDA-approved, it can be obtained in the United States only
as a compounded substance. 79 The bottle label on the AMP found on Dr. Scott’s SUV
states “Manufactured by Equine Pharmaco, Inc., Seattle, WA 98107.” 80
b.
Sarapin
Dr. Scott’s expert, Dr. Clare Fenger, maintains that Sarapin “mitigates the
sensation of pain transmission to the central nervous system for lumbar facet [lower
back] pain in humans. Sarapin [is used] for similar purposes in horses, including
impingement of dorsal spinous processes [mid-spinal vertebrae rubbing], articular
facet arthritis [inflammation and degeneration of spinal joints] and sacroiliac
arthritis [inflammation at the hip/leg joint].” 81 By mitigating pain, Sarapin can be
77
Id. 2044, at ¶¶ 24-25 (Benson Exp. Rep.).
78
Id. 5764 (Tréjo).
79
Id. 5839 (Benson).
80
Id. 220-22 (Photos).
See also Shell II, 2025 WL 1784696, at *5
(Sarapin “is an herbal analgesic that reduces inflammation and relieves pain.”).
81 AB 5265, at ¶ 30 (Fenger Exp. Rep.) (footnotes omitted).
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used in horses to treat such chronic conditions as “lameness or poor performance.” 82
Its use “is not limited to emergencies.” 83
Sarapin was marketed in the United States until 2016, but “it was never in
the FDA-approved list. It was just merely grandfathered in, and once [the
manufacturer, High Chemical] stopped making the actual label drug, the only way
you can get it is compounding.” 84 “Grandfathering” refers to exempting pre-existing
substances not subject to regulation from restrictions taking effect upon the FDA’s
enactment or amendment. 85
Dr. Scott uses Sarapin, “alone or in combination with other drugs,” to treat
back pain or back bone tissue inflammation. 86 He considers it “a helpful alternative
to anti-inflammatory medications to treat osseus [spinal bone] and soft-tissue issues
82 Leanda Livesey, et al., The efficacy of injecting a distillate of the pitcher plant (Sarraceniaceae)
adjacent to the palmar digital nerves of horses to ameliorate lameness caused by digital pain, 133 J.
EQUINE VET. SCIENCE 1 (2024).
83
Shell II, 2025 WL 1784696, at *5, 46.
See also id. 5197, at ¶ 4 (Scott pre-hearing brief) (“After [sarapin] was
discontinued, it became available in a compounded formulation.”) (footnote omitted), 5520, at ¶ 44
(Benson Supp. Exp. Rep.); National Drug Codes (“NDC”) 10541-0012, https://ndclist.com/ndc/105410012 (High Chemical sold a Sarapin product during the period “1-31-1935” to “6-10-2016,” and it was
“primarily utilized in pharmaceutical processing or compounding.”); SRPFOF ¶ 61.
84 AB 5864 (Benson).
See, e.g., Charles F. Hagan, Grandfather Protections Under the Drug Amendments of 1962, 19
FOOD DRUG COSM. L.J. 119, 122 (1964); Compounding Today, International Journal of
Pharmaceutical Compounding, https://compoundingtoday.com/Compliance/FDAPre1938Drugs.cfm
(“Technically, these products have never been approved by the FDA and do not appear in the ‘Orange
Book’ because they are not approved drug products with therapeutic equivalence evaluations.”);
AB 5866-67 (Benson).
85
See also id. 5265, at ¶ 30 (Fenger Exp. Rep.) (describing back or spinal
conditions), 5871 (Benson) (use for “back injuries, back arthritis”).
86 AB 136 (Scott letter).
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during training.” 87 Dr. Scott’s routine, pre-race protocol involves injecting quarter
horses with Sarapin at 48 hours before their race, along with AMP 24 hours
beforehand. 88
While Dr. Scott maintains he injects Sarapin as a prophylactic measure, he
offered no testimony or other evidence that demonstrates Sarapin, if routinely
injected, has any preventative impact on the conditions he identified as indicating
its use. 89 Although Dr. Scott argued the two Banned Substances together as part of
his pre-race protocol, unlike AMP, there is no evidence that connects Sarapin to
tying up. 90 By contrast, his witness statement explicitly does so for AMP: “In my
experience, I have found the use of adenosine monophosphate [AMP] to be an
efficacious prophylactic and acute remedy to treat rhabdomyolysis in Quarter
Horses.” 91 Dr. Scott said nothing similar about Sarapin, however. 92
87 AB 5232, at ¶ 18 (Scott wit. stmt.).
See also SOBr. at 3; AB 5233, at ¶¶ 21-23 (Scott wit. stmt.), 5238-UN (Horses 1-3)
(data extracts), 5590 (Scott closing).
88 SPFOF ¶ 3.
See, e.g., AB 5590 (Scott opening) (“[T]he objective of these protocols is to prevent the development
of a medical condition. That’s what prophylactic treatment is.”).
89
Compare AB 7169-70 (Scott post-hearing brief) (“Dr. Scott presented overwhelming evidence that
the seized medications were part of a pre-race treatment protocol for Quarter Horses . . . stabled at
Sunland Park. . . . Dr. Scott explained his reasoning and his belief in the need for prophylactic
treatment of Quarter Horses before a race.”), 5590 (Scott opening) (Dr. Scott’s “protocol included the
use of Sarapin 48 hours out and the use of AMP 24 hours out.”), with AB 5232, at ¶¶ 12, 15-17
(Scott wit. stmt.) (discussing AMP and tying up), 6317-18, 6320-21 (Scott) (discussing tying up only
with reference to AMP).
90
91 AB 5232, at ¶ 12 (Scott wit. stmt.).
See id. at ¶ 18 (“I have also found, in my clinical judgment, that Sarapin is a helpful alternative to
anti-inflammatory medications to treat osseus and soft-tissue issues during training.”).
92
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Dr. Fenger testified at length concerning tying up and developing treatment
to protect against its risk. 93 But she never included Sarapin in that discussion. She
also did not express any opinion on what conditions, if any, Sarapin might prevent,
if injected routinely.
Dr. Fenger maintains that Sarapin “does not cause a ‘blocking’ or anesthetic
effect, and therefore does not risk ‘numbing’ of extremities such as occurs with local
anesthetics.” 94 Dr. Benson, concurred in part, testifying that Sarapin “doesn’t have
the same effect of blocking that, for example, a lidocaine or an FDA approved drug
would have.” 95 She added, however, “we don’t know exactly what it is used or why it
is used in the way that it’s used, . . . .” 96
A trade report Dr. Scott introduced states: “The stuff doesn’t work. . . .
Multiple laboratory studies . . . have shown that Sarapin has absolutely no effect on
mitigating pain, in either horses or humans.” 97 The report also quotes Dr. Benson:
Benson . . .said that trainers often ask for race day treatments that the
veterinarian knows will have no impact on the horse’s physiology or
performance. The veterinarian gets to bill for the administration of the
substance—often under the table—and no one gets caught. Meanwhile, the
See also id. 5264-65, at ¶¶ 26-29 & 5268, at
¶¶ 52-53 (Fenger Exp. Rep.) (no discussion of using Sarapin to prevent or treat tying up).
93 AB 6077-87, 6154-57, 6187-88, 6190-91 (Fenger).
94 AB 5265, at ¶ 31 (Fenger Expert Rep.), 6096 (Fenger).
95
Id. 5865 (Benson).
96
Id.
See also id. at 5519, at ¶ 40 (Benson Exp. Rep.) (“Arguably,
Pitcher Plant is not an approved human or animal drug because it has no efficacy as a treatment.”)
(footnote omitted).
97 AB 5325 (Daily Racing Form report).
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trainer doesn’t want to give up on something that competitors might also be
using, so the cycle repeats itself.
We used to say those things were for the trainer, not for the horse, Benson
said. 98
Yet, Sarapin is “not at all” innocuous. 99 It “is marketed as a pain block.” 100
So, while experts can parse the substance at a scientific level—such as whether its
effect reaches “extremities” or improves horse performance—it’s reasonable to infer
that individuals such as trainers and owners may not make those distinctions. 101
Their belief, perhaps erroneous, that Sarapin can somehow shave a fraction of
second in a race may be enough. As NMRC Executive Director Tréjo testified:
[F]rom my understanding, pitcher plant [Sarapin] is a blocking agent, and
that could lead to a horse not feeling the injury that he may have just to get a
race out of the horse. So they may be running very numb ignoring the pain
that they really had prior to the administration of this drug. 102
Thus, Sarapin has captured regulatory attention. 103 As noted, it is expressly
prohibited under ADMC Rule 4117(e), and, Executive Director Tréjo’s asserts,
barred by NRMC Rules as well, absent compliance with regulatory conditions. 104
98 AB 5325 (Daily Racing Form report).
99
Id. 5865 (Benson).
100
Id. 5325 (Daily Racing Form report).
See AB 5265, at ¶ 31 (Fenger Exp. Rep.), 6096 (Fenger) (in “backside racetrack commentary,
[Sarapin] got the name of being a block. . . .”), 5970-71 (Benson) (not aware that Sarapin affects
performance), 6096-97 (Fenger) (Sarapin does not affect racing performance).
101
102 AB 5758 (Tréjo).
103
Id. 6096 (Fenger).
Id. 1959 (Tréjo letter), 5766, 5802-03 (Tréjo) (under the compound substance rules, Sarapin is
prohibited). See New Mexico Administrative Code (“NMAC”) § 15.2.6.8(B)(10), pp. 25-26, below.
104
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Nevertheless, where the trainer agrees, Dr. Scott asserts that, for decades, his prerace protocol has included injecting Sarapin two days before a horse’s race. 105
There are alternative FDA and HISA-approved products: “Neuropathic pain
control in horses is better accomplished through FDA approved substances such as
gabapentin, lidocaine, and/or ketamine,” each of which is a “controlled substances
allowed to be used and possessed by veterinarians under HISA.” 106
2.
ADMC Rule Treatment of Sarapin and AMP: Is Each a
“Banned Substance”?
Under the ADMC Program Rules, Banned Substances are “prohibited at all
times” and “should never be in a horse’s system.” 107 Rules 4111 through 4117
further group Banned Substances into categories, designated S0 through S6.
Subject to FTC approval, the Authority is empowered to revisit classification
decisions, and it has done so from time to time. 108
105 See, e.g., AB 5233, at ¶¶ 21-23 (Scott wit. stmt.), 5238-UN (Horses 1-3) (data extracts). See also
id. 5509, at ¶ 4 (Benson Supp. Exp. Rep.), 5908-09 (Benson), 5590 (Scott closing).
106 AB 5519, at ¶ 40 (Benson Supp. Exp. Rep.) (footnotes omitted).
1784696, at *5.
107 Rule 3010(c).
See also Shell II, 2025 WL
See also Rules 3111(a) (Prohibited Substances) & 4010-4117 (Banned Substances);
88 Fed. Reg. 5124 (Jan. 26, 2023) (Appendix 1 to Rule Series 4000: Technical Document—Prohibited
Substances). Strictly speaking, the Prohibited List also includes Banned Methods. However, this
branch of the Prohibited List is not implicated in this case.
See, e.g., 15 U.S.C. §§ 3053(c)(2), 3055(c)(5), (e) and (g)(3); Press Release, HISA Seeks Public
Comment on Proposed Anti-Doping and Medication Control Rule Modifications (Nov. 18, 2025)
(including “[c]reation of a Class D Controlled Medication category,” and “[r]eclassification of certain
Banned Substances”); Press Release, Enforcement of Rule Modification Regarding Iron Dextran
Begins December 27, 2023 (Nov. 28, 2023) (announcing a pre-enforcement “educational period” after
the FTC’s “approval to add iron dextran to the Banned Substances list”).
108
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a.
Category S6: Sarapin.
Rule 4117, which covers S6 Miscellaneous Substances, provides that “[t]he
following substances . . . are prohibited at all times . . . (e) pitcher plant extract
(Sarapin). . . .” There is no dispute that HIWU seized Sarapin during its search of
Dr. Scott’s SUV at Sunland Park. 109 However, Dr. Scott asserts such factual
propositions as: (1) Sarapin has “been used as routine pre-race medications for over
four decades by virtually all racetrack veterinarians in New Mexico”; (2) “Sarapin is
a naturally occurring (endogenous) substance used as an adjunct to NSAIDs
[nonsteroidal anti-inflammatory drugs] and can serve the same purposes as
NSAIDs”; (3) Sarapin lacks “the capacity to change the normal physiological
performance of a racehorse”; and (4) NMRC “never treated . . . Sarapin as [a]
‘prohibited substance[]’ or restricted a veterinarian’s possession or use” of it. 110
Insofar as Dr. Scott offers this and similar evidence to challenge Sarapin’s
classification as an S6 Banned Substance, that ship has sailed. None of the facts is
relevant. Rule 3113, which I will refer to as an “incontestability” provision, provides
that the Authority’s decision to classify a substance as a Prohibited Substance is
“final” and not “subject to any challenge by any Covered Person. . . .” 111 “If [Dr. Scott
is] unhappy with the contents of the Prohibited List, [he] must persuade [the
109 SRPFOF ¶ 14.
See also SOBr., at 3-4, 5, 9; AB 136 (Scott letter), 5595 (Scott opening),
6232-33 (Scott), 6432-33, 6432 (Scott closing).
110 SPFOF ¶¶ 8, 10, 12, 16.
111 Rule 3113.
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Authority] to change the list. It is not within the jurisdiction of this [Court] to make
that decision.” 112
HIWU has shown, prima facie, a Rule 3214(a) Possession ADRV. AMP’s
classification as an S0 Banned Substance is not so straightforward, however.
b.
Category S0: AMP.
AMP is not expressly listed as banned, but—the Authority contends—instead
falls within Rule 4111’s S0 category. A “catch-all,” the S0 category is designed to
reach substances not otherwise expressly covered in the other Banned Substance
categories. Under Rule 4111, the S0 category reaches:
Any pharmacological substance that (i) is not addressed by Rules 4112
through 4117, (ii) has no current approval by any governmental regulatory
health authority for veterinary or human use, and (iii) is not universally
recognized by veterinary regulatory authorities as a valid veterinary use, is
prohibited at all times.
An S0 approach is commonplace in equine regulation and in sports law anti-doping
codes generally. 113 As Dr. Benson testified: “[I]t is impossible to categorize every
WADA v. USADA, CAS OG 06/001, at ¶ 17 (Feb. 10, 2006). See also WADA v. de Oliveira, CAS
2010/A/2307, at ¶ 123 (Sept. 14, 2011) (“The Panel is bound by . . . the fact that cocaine was included
in the Prohibited List. . . . [I]t cannot re-classify cocaine as a ‘specified substance’. . . regardless of . . .
whether it has performance-enhancing effects.”) (citations omitted); FINA v. Kreuzmann, CAS
2005/A/921, at ¶ 32 (Jan. 18, 2006) (Since the substance is on the Prohibited List, there is “no room
for a counter-analysis to determine whether a substance was effectively used as a masking agent or
not.”). Cf. United States v. Amalfi, 47 F.4th 114, 124-25 (2d Cir. 2022) (rejecting a constitutional
challenge to including marijuana as a Schedule I drug).
112
113
See AB 3401 (ARCI guidelines), 3749, at ¶¶ 5 & 6 (Comparable BHA Rule), 3850 (WADA Code).
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substance. . . . There are more substances than we could ever do, and they’re always
coming up with new substances. So you have this kind of catch all.” 114
The Panel in Carter v. IOC 115 similarly wrote: “There is a great number of
stimulants, and they cannot all be listed by name. Therefore, the list of prohibited
stimulants provides a list of named stimulants, which are typically the ones often
detected, as well as a ‘hold all basket’.” The “basket” also recognizes that “the dopers
are always one step ahead of the regulators,” who, together with “the chemists are
forced to play catch-up, developing tests to detect whatever new drugs start to show
up at racetracks.” 116
Rule 4111, however, also has carve-out language, which applies even though
a substance would otherwise be barred under the Rule’s three-factor analysis:
For the avoidance of doubt, compounded products compliant with the Animal
Medicinal Drug Use Clarification Act (AMDUCA) and the FDA Guidance for
Industry (GFI) #256 (also known as Compounding Animal Drugs from Bulk
Drug Substances) are not prohibited under this section S0.
Unlike Sarapin, Rule 3113’s incontestability provision does not apply to AMP.
Rule 4111’s S0 category ban requires that specific criteria be met, and even if they
are, the carve-out can negate banned status. Thus, both the applicability of Rule
114 AB 5840-41 (Benson).
See generally Matter of Shell, No. 9435, 2024 WL
5078311, at *18-19 (FTC ALJ Oct. 31, 2024) (“Shell I”) (discussing authorities).
115 CAS 2017/A/4984, at ¶ 152 (May 31, 2018).
See also Battuello, n.19, above (“[B]ad trainers
will inject practically any substance to make their horses move faster. Cobra venom, cocaine, Viagra,
[and] . . . dermorphin, but owing to its amphibian origin, ‘frog juice’”; also reporting that “[o]n a
single day in May 2012, 8 New Mexico Quarter Horses tested positive for dermorphin. . . .”).
116 Milton C. Toby, UNNATURAL ABILITY 181 (2023).
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4111’s criteria for coverage, and that of the carve-out for exclusion, must be proven.
Otherwise, Rule 4111 could be vulnerable to invalidation under the fair notice
requirement of due process. 117
Williams v. IOC 118 is instructive. Williams tested positive for isometheptene,
a substance not expressly covered in the International Olympic Committee’s
Prohibited List. 119 The IOC, however, sought: (1) to include isometheptene under its
own catch-all language, applicable to any substance “with similar chemical
structure or similar pharmacological effect(s)” to those expressly listed on its
Prohibited List; and (2) to assert its own incontestability rule, providing that
substances “on the Prohibited List . . . shall not be subject to challenge by an
Athlete. . . .” 120 The Panel rejected the IOC’s argument based on the incontestability
provision: “the wording of section 4.2 of the IOC Rules [the catch-all language] does
not lend itself to an interpretation which exempts from challenge the classification
of a substance as ‘similar’ to listed substances. . . .” 121 Instead, similarity was an
117 HISA and FTC Rules require due process in de novo review proceedings. See 15 U.S.C. §§ 3057(c)(3),
3058(b)(2)(B) (importing Administrative Procedure Act requirements in 5 U.S.C. § 556); HISA Rule 3122(e); FTC
Rule 1.146(c)(1)(ii).
118 CAS 2004/A/726 (Oct. 19, 2005).
119
Id. at ¶¶ 5-6 (italicization omitted).
Id. at ¶¶ 5, 8 (quoting the Prohibited List language and the incontestability language,
respectively) (italicization omitted).
120
121
Id. at ¶¶ 10, 11.
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issue of fact, which the Panel had to resolve in the case at hand, with the burden of
proof on the IOC. 122
So too here: for AMP to be prohibited under the S0 classification, HIWU and
on review the Authority have the burden of showing it meets all three requirements
in Rule 4111. 123 AMP must: (1) not otherwise be “addressed” in Rules 4112-17; (2)
have “no current approval by any governmental regulatory health authority for
veterinary or human use”; and (3) “not [be] universally recognized by veterinary
regulatory authorities as a valid veterinary use.” 124 If this burden is satisfied,
Dr. Scott has the burden of showing that the carve-out, an exception, applies to
AMP, thereby rendering it not a Banned Substance; Dr. Scott’s assertion to the
contrary is without merit. 125
Rule 4111’s first requirement is not in controversy. Rules 4112-17 do not
expressly cover AMP. However, the other two requirements are disputed.
The Authority contends that requirement (ii) should be read to imply no
approval by the FDA, or perhaps by any other government regulatory health
122
Id. at ¶ 34.
See id. at ¶¶ 31, 34, 40 (The regulator had the burden of proving the catch-all’s applicability);
Tr. at 17 (Counsel for the Authority conceding its burden).
123
124 Rule 4111.
See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948)
(“[T]he burden of proving justification or exemption under a special exception to the prohibitions of a
statute generally rests on one who claims its benefits. . . .”); United States v. Regenerative Sciences,
LLC, 741 F.3d 1314, 1322 (D.C. Cir. 2014) (In an enforcement action, the defendant had the burden
of demonstrating the applicability of an exemption under stem cell research regulations.) (citing
authorities).
125 Tr. 35-36 (Counsel for Dr. Scott).
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authority in the United States: “it’s the Authority’s position that we would look to
U.S. law for determining whether and how to interpret . . . a U.S. federal
regulation.” 126 On the other hand, Dr. Scott argues that the “any” language in
requirement (ii) means that a government regulatory health authority somewhere
has approved AMP for veterinary or human use, then AMP cannot be an S0 Banned
Substance:
[T]he lack of FDA approval can’t prohibit its use, can’t disqualify it from use.
There was a decision made that instead of referencing that it’s not approved
by the FDA in S0, they said “any” governmental regulatory authority.
....
If [the Authority] intended “any” to mean just the one agency, that’s
what they should have said. But they didn’t. They said “any.” And . . .
to give effect to the word “any,” it has to have a reach beyond the
United States. 127
To support his construction of Rule 4111, Dr. Scott submitted a document,
apparently from the Australian Pesticides and Veterinary Medicines Authority,
126 Tr. 18 (Counsel for the Authority).
See also AB 6001 (Benson) (“I think when you’re interpreting
laws in the US, we’re not going to follow Australian laws, but that’s me.”), 6400-01 (HIWU closing)
(“When they’re wondering whether any governmental regulatory Health Authority has approved it,
they're not caring whether it was approved in Morocco or Australia or China. This is clearly
designed, and any reasonable interpretation of it is designed to address the fact that no
governmental authority here in the United States has approved it. . . .”); AuPFOF ¶ 25 (“[N]o . . .
governmental authority in the United States has approved AMP for veterinary or human use.”)
(footnote omitted).
See also AB 5591 (Scott closing) (Requirement (ii) “says any
. . . . Not the FDA. . . .”); SRPCOL ¶ 6 (denying that AMP is an S0 Banned Substance).
127 Tr. 34, 35 (Counsel for Dr. Scott).
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reciting a 1998 registration for AMP issued to CEVA Animal Health Pty Ltd. 128
CEVA has a public presence, which includes a website for “AMP 5 Injection.” 129 This
Australian government regulatory action, Dr. Scott argues, prevents AMP from
meeting requirement (ii). 130
Dr. Scott also introduced evidence that the New Mexico BVM and the NMRC,
in effect, acquiesced for years in veterinary use of AMP. 131 However, there is no
evidence of the BVM’s actual approval of AMP. Therefore, these facts fail to refute
requirement (ii)’s applicability.
Dr. Scott further established that, in April 2024, Wedgewood nominated AMP
to the FDA’s list of bulk drugs, a request the FDA rejected in August 2025. 132
Strictly speaking, with the nomination pending, AMP could be used “until the FDA
has made a decision on whether they will allow it to [be] use[d] permanently as a
compounded bulk drug.” 133 And HIWU seized Dr. Scott’s AMP during the time that
AMP’s use was permitted. However, this temporary condition, subsequently
128 AB 7404, 7454, 7455 (Approval documents).
129 https://www.ceva.com.au/Products/Products-list/AMP-5-Injection.
130
See, e.g., Tr. 29-30 (Counsel for Dr. Scott).
See, e.g., AB 140 (BVM 2014 letter), 5236 (List of compounded substances), 6232-33, 6241-45,
6253-56 (Scott), 7274, ¶¶ 3-4 (Pickard letter).
131
132 AB 7382 (Wedgewood AMP nomination); FDA, Bulk Drug Substances Reviewed and Not Listed,
n.70, above.
See generally FDA, Bulk Drug Substances Used in Compounding Under
Section 503A of the FD&C Act, https://www.fda.gov/drugs/human-drug-compounding/bulk-drugsubstances-used-compounding-under-section-503a-fdc-act.
133 AB 5829 (Benson).
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inoperative, seems to me too slender a reed to find regulatory “approval” for
requirement (ii) purposes. 134
Analysis under requirement (ii) thus turns on the Australian approval. On
balance, I agree with Dr. Scott’s position.
First, “[w]hen interpreting a statute, we begin with the text.” 135 For a
substance to be banned under the S0 category, requirement (ii) mandates that there
be “no current approval by any governmental regulatory health authority for
veterinary or human use. . . .” 136 The requirement is unambiguous. As the Supreme
Court said in United States v. Gonzales, “the word ‘any’ has an expansive meaning,
that is, ‘one or some indiscriminately of whatever kind’. . . .” 137 The Authority “did
not add any language limiting the breadth of that word. . . .” 138 The Authority
reinforced the lack of limitation when it used the word “no”—here, meaning “none,”
or “not any”—to modify the “approval” the absence of which would have to be
met. 139
134 At oral argument of this point, counsel for Dr. Scott stated that “[t]here were several applications
for AMP under that [FDA] docket number” for Wedgewood—“about a hundred applications for
AMP”—but counsel “didn’t think . . . it was necessary” to offer them as evidence. Tr. 23-24, 25. Since
this alleged material is not in evidence, I give no weight to counsel’s assertion.
135
Lackey v. Stinnie, 604 U.S. 192, 199 (2025).
136 Rule 4111.
137 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)).
138
Id. at 5.
See, e.g., Merriam-Webster Dictionary/Thesaurus (“none” as a synonym), https://www.merriamwebster.com/thesaurus/no; https://dictionary.cambridge.org/dictionary/english/no.
139
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Thus, requirement (ii) simply cannot be construed to mean “no FDA
approval,” or “no approval in the United States.” And here, there is veterinary
regulatory approval in Australia.
Second, were there any claimed ambiguity, the Authority is the drafter of the
ADMC Rules. Therefore, requirement (ii) should generally be construed against the
Authority. 140 Significantly, when the Authority drafted and proposed the ADMC
Rules, the very scenario here—approval by a single non-U.S. governmental
veterinary authority—was not an unknown unknown. Rather, it was relatively
foreseeable given the sheer number of global governmental bodies. Indeed, during
the FTC approval proceedings, the Authority said that the S0 “designation can be
revised based on [a substance’s] evolving use as recognized by international
regulators, colleges of veterinary medicine, and individual Board-Certified
specialists.” 141
Further, in proposing the ADMC Rules, the Authority reviewed the
Association of Racing Commissioners International’s (“ARCI’s”) “standards and
protocols in its the Model Rule of Racing. . . .” 142 The 2022 version of the ARCI Rules
included an S0 designation in the group’s Prohibited Substances, which covered:
Cf., e.g., United States v. Seckinger, 397 U.S. 203, 210 (1970) (discussing “the general maxim that
a contract should be construed most strongly against the drafter”); Town of Vinton v. Indian Harbor
Ins. Co., 161 F.4th 282, 287 (5th Cir. 2025) (“[A]ny textual ambiguity in a contract is generally
construed against the drafter.”).
140
141 AB 5018 (Authority response to comments) (emphasis added).
Order).
142 88 Fed. Reg. 5073.
33
See also id. at 2761 (FTC Approval
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“[a]ny pharmacologic substance that is not approved by any governmental
regulatory health authority for human or veterinary use within the jurisdiction.
. . .” 143
The Authority’s rule-approval comment and the ARCI’s S0 counterpart
description not only suggest that the risk of non-U.S. approval was foreseeable, but
also that the Authority declined to adopt “FDA” or other limiting language when it
proposed ADMC Rule 4111. Dr. Scott’s argument—“You have to presume that
decision [not to limit the Rule’s language] was deliberate”—is well-grounded. 144
Third, under the principle of lenity in construing statutes that carry a
penalty—such as the Ineligibility or fine that Dr. Scott faces—doubt generally
should be resolved in favor of, not against, those subject to sanction. 145 This
common law principle is also in sports law. As the Panel wrote in Omeragik v.
FFM, 146 sports law “offences . . . must be clearly and previously defined by law and
143 AB 3401 (ARCI Rules, Annex I) (emphasis added).
144 Tr. 35 (Counsel for Dr. Scott).
145
See Bittner v. United States, 598 U.S. 85, 101, 103 (2023) (“[T]he rule of lenity”—construing
“statutes imposing penalties . . . strictly . . . in favor of individuals”—“not to mention a dose of
common sense, favors a strict construction” in a civil action involving penalties under the Bank
Secrecy Act) (citing authorities; plurality opinion by Gorsuch, J. joined by Jackson, J.); United States
v. Thompson/Center Arms Co., 504 U.S. 505, 517-18 (1992) (applying the rule of lenity in a civil tax
case for penalties); Doe v. Eating Recovery Ctr. LLC, 806 F. Supp. 3d 1109, 1118 (N.D. Cal. 2025) (“A
similar principle applies to civil statutes that impose punitive civil penalties.”).
See also BC Arsenal v. RBF, CAS
2019/A/6636, at ¶ 139 (August 3, 2020) (“[I]nconsistencies/ambiguities in the rules must be construed
against the legislator. . . . .”) (citing authorities).
146 CAS 2011/A/2670, at ¶ 8.13 (Jan. 25, 2013) (emphasis added).
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must preclude the ‘adjustment’ of existing rules to enable an application of them to
situations or conduct that the legislator did not clearly intend to penalize.”
I reach the conclusion that the Authority has failed to satisfy requirement (ii)
with reluctance, as an array of facts otherwise tip against permitting AMP at
racetracks subject to HISA.
•
The FDA directed AMP’s removal from the market 50+ years ago. The FDA
not only concluded that AMP lacks therapeutic effect, but also there are
potentially fatal risks associated with the substance’s incorrect use. So, this
is not an emerging substance that medical and scientific communities haven’t
fully vetted. Moreover, in its recent 2025 action, the FDA rejected
Wedgewood’s nomination to add AMP to the Bulk Drug List.
•
There is no evidence Dr. Scott knew about, much less relied on, approval in
Australia in using AMP as part of his alleged practice. To the contrary, the
bottle label on the AMP found on Dr. Scott’s SUV states “Manufactured by
Equine Pharmaco, Inc., Seattle, WA 98107.” 147 Thus, the AMP seized from
Dr. Scott “is not the same product” as that manufactured by CEVA, although
it has the “same formulation.” 148
•
There is no evidence of Equine Pharmaco’s bonafides as a responsible product
supplier. Dr. Scott testified that he has never called the company, and his
147 AB 222 (Photo).
148
Id. 6002-03 (Benson).
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counsel admitted “we just didn’t look into that. . . .[I]t wasn’t really
important, in our view. . . .” 149 The company is not included in the FDA’s
database for registered drug establishments. 150 Nor have my own searches of
Washington State government websites for business registration turned up
any information for the company.
•
Moreover, if Washington State is the source of the product and it is shipped
outside that State, thereby enabling Dr. Scott to receive AMP in New Mexico,
the product’s distribution could well violate federal law, absent compounding
in compliance with GFI #256. 151 Receipt via importation from abroad would
be equally problematic. 152
•
Alternatives to AMP to address tying up exist and include “FDA-approved
tranquilizers and non-steroidal anti-inflammatories combined with fluid
149 Conference audio at 5:47-55 (Nov. 20, 2025) (not transcribed at AB 6345 (Scott)); Tr. 27 (Counsel
for Dr. Scott). See also AB 6247 (Scott) (admitting he did not have “any direct contact with the
manufacturer”).
See FDA, Drug Establishments Current Registration Site (Aug. 2026), https://www.accessdata.fda
.gov/scripts/cder/drls/.
150
151 See 21 U.S.C. §§ 331(d), 351(a)(5), 355(a), 360(a)(1); AB 5342 (GFI #256) (“[D]rugs compounded
from bulk drug substances violate the FD&C Act because they are not approved or indexed, are not
made according to CGMP, and cannot satisfy the FD&C Act’s adequate directions for use provision
(which requires, among other things, that a prescription drug have FDA-approved labeling).
However, FDA has generally refrained from taking enforcement action against animal drugs
compounded from bulk drug substances under certain circumstances when no other medically
appropriate treatment options exist.”), 5835, 5994, 5995-96 (Benson).
See, e.g., In re Canadian Import Antitrust Litig., 470 F.3d 785, 790 (8th Cir. 2006) (“This closed
system ensures that approved prescription drugs are subject to FDA oversight and are continuously
under the custody of a U.S. manufacturer or authorized distributor, thus helping to ensure that the
quality of drugs used by American consumers is consistent and predictable.”) (internal quotation
marks omitted).
152
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therapy. . . . Preventative medications can include FDA-approved
medications such as phenytoin and dantrolene.” 153
•
If AMP were injected into a Covered Horse, there presently is no known test
to detect its presence. 154
Even putting facts aside, significant policy considerations also counsel
against ruling that S0 category coverage must be rejected whenever approval by a
single governmental regulatory body, somewhere, can be found. That means that
Rule 4111 invites a race to the bottom: S0 categorization can depend on the action
by a risk-tolerant regulatory body—or worse still, a corrupt one. That would run
counter to Congress’s objective to elevate national standards of safety and welfare
in thoroughbred horseracing. More generally and equally important, since federal
law prohibits interstate sale and importation of non-FDA approved drugs, the more
likely it is that a relevant non-U.S. regulatory approval exists, the greater the
opportunities for thoroughbred racing participants to attempt to circumvent federal
law.
See also id. 5873
(Benson) (“You could use Acepromazine, Dantrolene. . . . [B]ut a lot of it comes down to changing how
you’re feeding the horse, changing how you’re training the horse, changing how you’re managing the
horse to start.”) (emphasis omitted), 6018 (“At our race tracks, we treat horses with dantrolene.”);
6077-80, 6083 (Fenger) (agreeing that dantrolene was “absolutely . . . effective medication for
prophylactic treatment . . . in Standardbreds and Thoroughbreds,” although she did not know about
quarter horses, which, she testified are more prone to tying up during or shortly after racing).
153 AB 2044, at ¶ 25 (Benson Exp. Rep.) (footnotes citing authorities omitted).
154
Id. 5831, 5836-37, 5923-27, 5993 (Benson).
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I am also mindful that my ruling may have effects beyond this case. However,
if the Authority considers this result unsatisfactory, it is authorized to propose
modification of Rule 4111 to the FTC for approval. 155
For these reasons, I hold that HIWU failed to establish that requirement (ii)
in Rule 4111 applies to AMP. 156 Because the S0 categorization directs that all three
requirements must apply, there is no need to consider requirement (iii)’s
applicability. There also is no need to consider, for purposes of S0 classification,
whether AMP meets either of the AMDUCA or GFI #256 carve-outs.
The Arbitrator’s decision states that “Dr. Scott had two prohibited substances
at a Covered Racetrack on a day covered Thoroughbreds were running.” 157 The
Arbitrator, however, did not analyze whether AMP met the requirements of Rule
4111. To the extent that the Arbitrator implicitly held that it does, the decision is
arbitrary, capricious, and not in accordance with law, and will be reversed.
*
*
*
In consequence, HIWU proved Dr. Scott’s Possession in violation of Rule
3214(a) only for Sarapin—subject, of course, to the Rule’s compelling justification
155
See 15 U.S.C. § 3053(a) & (c) (recognizing proposed rule modifications).
156 Rule 3121(a) provides, in pertinent part, that “The Agency [HIWU] shall have the burden of
establishing that a violation of the Protocol has occurred to the comfortable satisfaction of the
hearing panel. . . .” (emphasis added). I refrain from deciding whether this heightened burden of
proof applies to demonstrating the applicability of Rule 4111 S0 categorization. Even assuming, for
argument’s sake, that a lesser burden applies, HIWU has not met it.
157 AB 7676 (Final Decision).
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defense. I turn, next, to this defense, limiting discussion, insofar as feasible, only to
Dr. Scott’s Possession of Sarapin.
B.
Dr. Scott’s Compelling Justification Argument.
Rule 3214(a)’s “compelling justification” defense, and the case law construing
it, recognize that, to be “compelling,” the “justification” must be “powerful and
convincing.” 158 As an exception to the prohibition against Possession, the defense
should “be interpreted restrictively.” 159 The District Court in Dr. Scott’s own case
wrote that “the scenarios where the ‘compelling justification’ exemption applies will
be a small minority.” 160 Dr. Scott has the burden of showing compelling justification
by a preponderance of the evidence.” 161
Compelling justification is, necessarily, “fact-driven and thus case-specific.” 162
But neither having a veterinarian practice that includes non-Covered Horses, nor
practice convenience, standing alone, establish compelling justification. 163 Instead,
Dr. Scott must “demonstrate, through veterinarian practice records or other
158 Shell II, 2025 WL 1784696, at *11. See also id. at 17 (the proof must be “strong”); Klein v. ASADA,
CAS A4/2016, at ¶ 128 (May 25, 2017) (“[T]he word ‘compelling’ qualifies the word ‘justification’” and
“must be given its ordinary natural meaning of forcing, driving or constraining. . . . As a matter of
language the two words in combination set the bar at a substantial height for the Athlete to clear.”).
159
Shell II, 2025 WL 1784696, at *12 (internal quotation marks omitted).
160
Scott v. HISA, 2025 WL 2987598, at *7.
161 Rule 3121(b).
162
Shell II, 2025 WL 1784696, at *12.
See Matter of McCrosky, No. 9448, 2026 WL 1633298, at *8-11 (FTC ALJ June 2, 2026); Shell II,
2025 WL 1784696, at *14-17; Overly, 2026 FTC LEXIS 61, at *49-52, 58-60, vacated and remanded
on other grounds, 2026 FTC LEXIS 64.
163
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evidence,” that his practice “require[d] him to keep Banned Substances” on his SUV
when HIWU searched it in February 2025. 164
Dr. Scott argues that he has satisfied this defense based on proof of: (1) his
routine use of Sarapin as part of his pre-race protocol for quarter horses, a practice
that he contends his documentary proof corroborates; (2) additional evidence
regarding racetrack veterinary practice generally in New Mexico; (3) Sarapin’s
treatment under New Mexico law, specifically, an alleged claimed absence of
prohibition of possession; and (4) the NMRC’s similarly-alleged lack of enforcement
of any prohibition.
I consider these categories of Dr. Scott’s proof.
1.
Dr. Scott’s Practice.
Sarapin’s classification as a Banned Substance under the ADMC Rules is
explicit, and Dr. Scott admittedly was “clearly aware Sarapin [was] not to be
administered to covered thoroughbred horses” that were subject to HISA. 165
However long-standing his treatment protocol of injecting quarter horses 48 hours
before their races may have been, the ADMC Rules that took effect in May 2023
marked a point of change in thoroughbred racing. 166 Attuned to the likely change,
Dr. Scott himself urged the FTC to reject the proposed Rules. 167
164
Shell II, 2025 WL 1784696, at *17.
165 AB 136 (Scott letter).
166
See id. 6297-98 (Scott).
167
Id. 7086 (Scott comment).
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Sunland Park, a mixed meet track, hosts Covered Horse races, often, in the
two-day period before non-Covered quarter horses race—in other words, on the very
days Dr. Scott gives his Sarapin injections. 168 Despite practicing at this mixed
track, Dr. Scott offered no evidence that he took stock of his pre-ADMC practices to
assess whether adjustments might be prudent to accommodate the new regulation
prohibiting Possession. The ADMC Rule’s prohibition was, however, unlike what
Dr. Scott understood to be New Mexico racetrack law, which exempts track
veterinarians from certain possession rules. 169 Yet, there is no evidence that
Dr. Scott considered, much less made, any practice change that might have helped
him distinguish his use and Possession of Banned Substances to treat quarter
horses, and not Covered Horses, if an issue arose. However, after HIWU’s 2025
search, Dr. Scott implemented “a different pre-race routine that does not involve the
use of [Sarapin].” 170
Dr. Scott testified that, on the day of HIWU’s search, he intended, as his
“routine pre-race [treatment] protocol,” to administer Sarapin to eight identified
quarter horses that were each “scheduled to race” within the next two days. 171
Because the injections were preventative, Dr. Scott admits he did not need Sarapin
See AB 6313-14 (Scott). See generally id. 5199, at ¶¶ 15, 16 (Scott pre-hearing brief) (listing
quarter horse race days, mostly Saturdays and Sundays, in January and February 2025).
168
Compare NMAC § 15.2.6.8(B)(4) (excluding licensed veterinarians from possession restrictions) &
AB 140 (BVM 2014 letter), 6256-58, 6264-65 (Scott) with ADMC Rule 3214(a).
169
170 SRAuPFOF ¶ 47.
171 AB 7222, 7224-25, at ¶¶ 7, 31 (Scott wit. stmt.), 7187, at ¶2.b (Scott proposed findings of fact).
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that day to “save a horse’s life.” 172 The Authority contends this is dispositive.
“[C]ompelling justification,” it maintains “cannot be established by the desire to use
Banned Substances for non-exigent, routine, pre-race administration in nonCovered Horses.” 173 That, the Authority further argues, would be “an exception that
would swallow the rule [against Possession]. . . . [I]f accepted, veterinarians could
carry Banned Substances with impunity at a Covered Racetrack by simply claiming
it was routine to give those Banned Substances to non-Covered Horses.” 174
But the Authority over-states. Whether the possessed Banned Substance may
be used in non-exigent circumstances is simply one fact in the constellation of facts
that informs compelling justification analysis. Here, for example, evidence was
offered that prophylactic pre-race injection of AMP arguably can mitigate the risk of
a quarter horse tying up—a potentially life-threatening condition. 175 Having AMP
on hand in case that emergency materializes during or on conclusion of a quarter
horse race is one thing. 176 For Sarapin, however, Dr. Scott offered no comparable
172
Id. 6318 (Scott).
See also AuOBr. at 17-18 (“Generally, those [exceptional] scenarios will involve
emergency situations.”) (footnote omitted).
173 AuPCOL ¶ 9.
174 AuOBr. at 19.
See pp. 16-19, above; AB 136, 137 (Scott letter) (AMP is a “necessary and effective” treatment for
tying up, and Dr. Scott keeps it on his SUV “for exigency treatment of quarter horses), 5213, at ¶ 55
(Scott pre-hearing brief).
175
See AB 6077-80, 6143 (Fenger) (describing differences in tying up for quarter horses compared to
thoroughbreds).
176
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proof, and, while not dispositive, that weighs against his compelling justification
argument.
In the little that Dr. Scott has said about his Sarapin treatments, he
admitted to using it “alone or in combination with other drugs. . . .” 177 He
admits that, in allegedly reducing pain, Sarapin can be “an adjunct to NSAIDs [nonsteroidal anti-inflammatory drugs] and can serve the same purposes as NSAIDs.” 178
Restrictions on use of NSAIDs can be “important to prevent injury to a horse that is
enabled to perform because of . . . drug-induced pain relief when it otherwise could
not.” 179
One such NSAID is bute, which—for Covered Horses—is a Controlled
Medication under the ADMC Program, and may be given 48 hours before a race—
the same pre-race period Dr. Scott assertedly uses for Sarapin. 180 Dr. Scott has
himself used bute “together” with Sarapin.” 181 And he introduced data entries
showing that, during January and February 2025, he injected 17 quarter horses
with bute—as well as robaxin, a muscle relaxant and also a Controlled
177
Id. 136 (Scott letter).
178 SPFOF ¶ 10.
See also AB 7187, at ¶ 2.e (Scott proposed findings of fact in the arbitration).
179 AB 4056-57 (Keegan
et al. paper).
See AB 6304-05 (“phenylbutazone” = “bute”), 6311-12 (Scott), 6408-10 (HIWU closing); 88 Fed.
Reg. 5139, 5143, 5152 (Appendix 1 to Rule Series 4000).
180
181 AB 6311-12 (Scott).
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Medication—seemingly in violation of an NMRC Rule. 182 Dr. Scott attributed the
entries to “mistakes. Clerical.” 183
From the limited evidence, a permissible—but by no means necessary—
inference is that Dr. Scott routinely uses Sarapin as an anti-inflammatory, painrelieving treatment, with, or perhaps as an alternative to, bute. His veterinary
practice records should help illuminate both: (1) how “routine” his injections of both
Sarapin and bute together are; and (2) whether, contrary to his denial, Dr. Scott
injects not only quarter horses with Sarapin, but also Covered Horses. Therefore, I
next consider the documentary evidence Dr. Scott offered to support his compelling
justification defense.
2.
Dr. Scott’s “Documentary” Proof.
Where, as here, a Veterinarian contends that a non-Covered Horse practice
provides compelling justification, medical records should be highly probative. Thus,
in Shell II, where Dr. Shell raised this defense, the arbitrator wrote:
Dr. Shell has made the nature of his practice relevant, and has placed at
issue whether he had a noncovered horse practice that required the carrying
of the Targeted Banned Substances. . . . Dr. Shell opened the door to this line
of inquiry by raising the defense that the Targeted Banned Substances were
only used in non-covered horses. Accordingly, Dr. Shell has the burden of
supporting that defense with his veterinary records for covered and noncovered horses. As such, the complete veterinary medical records for all
Id. 5238-43 (extracts with phenylbutazone (bute) and robaxin entries); NMAC § 15.2.6.9.N(1) &
(2); 88 Fed. Reg. 5146 (Appendix 1 to Rule Series 4000). See also AB 7126 (ARCI NSAID guidelines).
182
183 AB 6309 (Scott).
See generally id. 6305-11, 6346.
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horses in his practice from the implementation of HIWU’s regulations until
he was charged are relevant and material to the defense. 184
Despite this pre-hearing ruling, instead of introducing “complete veterinary
records” at the hearing itself, Dr. Shell produced what he called “cliff notes,” some
with “clerical or scrivener’s” errors. 185 On review, I held that “the mostly billing
records offered are too incomplete and too riddled with claimed errors to find
Dr. Shell to have discharged his burden of proof.” 186
Against the backdrop of the Shell decision, I consider the documentary
evidence Dr. Scott introduced to corroborate his asserted treatment protocol.
Procedural Order No. 1 set forth the date on which he was required to submit to the
Arbitrator and provide to HIWU his hearing exhibits. 187 He should have at his
disposal a body of documents that, either individually or in summary form, detail
his multi-year, routine use of Sarapin on only non-Covered quarter horses.
Yet, his documentary practice information covers 46 quarter horses, handled
by four trainers, during the January-February 2025 period. 188 This material shows
184 2025 WL 1784696, at *7 (quoting
HIWU v. Shell, JAMS Case No. 1501000653, Discovery Order
No. 1 (Jan. 16, 2024) (emphasis added).
185 2025 WL 1784696, at *23.
186
Id.
See also id. 2712-13 (Procedural Order No. 3) (providing the re-scheduled date),
5228-29 (Dr. Scott’s witness and exhibit list).
187 AB 105, at ¶ 1.b.
188 The records identify the horses numerically from 1 through 49, but the data for three horses
purports to reflect treatment in different months, thus resulting in 46 “unique” horses. See Horse 37
and Horse 45 (AB 5249 & 5252), Horse 39 and Horse 47 (AB 5249 & 5252), and Horse 44 and Horse
48 (AB 5250 & 5253).
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Sarapin injections, typically two days before race dates, along with post-race
treatments and a small number of other substances administered. 189 This is the
only non-testimonial practice evidence that Dr. Scott offered as probative of his
compelling justification defense relating to Sarapin.
Although during the arbitration hearing, the parties referred to these
documents as “invoices,” they are not that at all. 190 They simply set forth extracts of
entries, seemingly from invoices themselves, identified by number and date in this
“prepared-for-litigation” exhibit. As Dr. Scott explained in his witness statement:
“Using my billing software, I have generated a summary of the treatments provided
to horses on this protocol, which is attached. . . .” 191 The extracts apparently come
from billing records that Dr. Scott never produced or made available for inspection
and that, one would expect, are themselves populated from his veterinary medical
records.
NMAC § 16.25.9.21 is titled “Minimum Standards for Veterinary Medicine
Practitioners – Record Keeping.” The Code provision requires licensed veterinarians
to “prepare” “client record[s] . . . which shall contain the following information:
(1) name, address, and phone number of the animal's owner or agent; and
(2) name or identity of animal(s), including species, breed, age, sex, weight,
and color where appropriate
189 AB 5238-54 (data extracts).
See AB 7229-45 (Scott production), 7247-48 (summary list), 5868-69 (Benson), 6406-08 (HIWU
closing).
190
191 AB 5233, at ¶ 25 (Scott wit. stmt.).
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(3) The medical record shall contain:
(a) a history of pertinent information as it pertains to the animal’s
medical status;
(b) notation of the physical examination findings;
(c) treatment or intended treatment plans or both, including
medications, medication strengths and amounts administered, dispensed or
prescribed and frequency of use as well as method of administration
including those medications used for sedation, induction and maintenance of
anesthesia;
(d) data and interpretation(s) of diagnostic procedures including but
not limited to radiographs, laboratory, ultrasound and ECG;
(e) a diagnosis or tentative diagnosis;
(f) when pertinent, a prognosis;
(g) progress notes and disposition of the case;
(h) beginning and ending dates of custody of the animal with daily
notations;
(i) in the case of vaccination clinics, a certificate including the
information required by Subsections (1) and (2) above may serve as the
medical record;
(j) name or initials of the veterinarian responsible for entries; and
(k) name or initials of all ancillary and authorized individuals
responsible for entries.
NMRC regulations also include recordkeeping and submission requirements:
Every veterinarian who treats a race horse at any location under the
jurisdiction of the commission shall, in writing on a form approved by the
commission, report to the official veterinarian the name of the horse treated,
any medication, drug or substance administered or prescribed or
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administered, the name of the trainer of the horse, the date and time of
treatment and any other information requested by the official veterinarian. 192
Yet, when asked about his medical records, Dr. Scott testified as follows:
Q [counsel for HIWU]: Do you keep medical records, Dr. Scott? Something
other than invoices.
A: I use the invoices as medical records. 193
I will assume, for argument’s sake (and lawfulness aside), that a veterinarian might
“relax” their compliance with NMAC’s requirements where treatment is, for
example, routinized. 194 But as I wrote in McCrosky in response to similar
testimony: “It strains credulity for Dr. McCrosky to claim he keeps no veterinary
records at all for his own horses.” 195 It similarly strains credulity for Dr. Scott to
claim that, other than invoices—themselves not produced—he keeps no medical
veterinary records in his entire practice for any of the horses he treats. Bills
commonly are prepared monthly, and their explanatory entries must come from
some source; Dr. Scott can’t possibly keep all the necessary names, dates, and
treatment information in his head. 196
192 NMAC § 15.2.6.8(D)(1).
193 AB 6318-19 (Scott).
See id. 6072-73 (Fenger) (Although a billing record can serve as a medical record, “it should
include the relevant information,” such as the condition observed or otherwise diagnosed, with “a
comment . . . [that] can be very brief, but most medical record programs give you the ability to write
something in if there is something to say.”).
194
195
McCrosky, 2026 WL 1633298, at *18.
See, e.g., AB 5238-40, 5244-46, 5249-50 (referring to differently numbered “Jan-31-25” invoices),
5242-43, 5247-48, 5252-53 (referring to multiple “Feb-28-25” invoices).
196
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Equally important, after Rules implementing HISA became effective in 2022,
Veterinarians treating Covered Horses became similarly obligated to maintain and
upload to an Authority-created web portal within 24 hours medical record
information comparable to that called for under New Mexico law. 197 For Covered
Horses in his practice, Dr. Scott testified that his billing agent handles the required
upload to the Authority’s portal and, so far as he knows, he is “fully compliant” with
the HISA reporting requirements. 198
Dr. Scott’s billing agent has to get the treatment information that it uploads
for Covered Horses from some source—presumably either a document or an
individual communicating with the billing agent based on a document. It is
reasonable to infer that there is also available source material for non-Covered
quarter horses. But Dr. Scott never offered any such documents.
Shown the series of invoice extracts that Dr. Scott did provide, Dr. Benson,
gave this testimony:
Q [counsel for HIWU]: Are these medical records?
A: No. 199
See generally AB 5319 (HISA 2024 Handbook covering treatment recording
options); Matter of Galvin, No. 9445, 2026 FTC LEXIS 31, at *2, 69-70 (ALJ Mar. 19, 2026), app. for
review, 2026 WL 1456131 (FTC Apr. 20, 2026).
197 HISA Rule 2251(b).
See also id. 5198, at ¶ 10 (Scott pre-hearing brief) (“Dr. Scott uploads his
treatments [of] Covered Horses through the HIWU veterinarian portal.”).
198 AB 6269-70 (Scott).
199 AB 5869 (Benson).
See generally id. 5509-11, at ¶¶ 4-9 (Benson Supp. Exp. Rep.).
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Explaining the difference between billing entries and medical records, Dr. Benson
continued:
[T]he whole point of a medical record is you should be able to understand why
the horse was given the sarapin. This [the invoice extract] is more like just
the conclusion. So, what was the diagnosis? What were the symptoms? What
was the objective . . . what were the objective findings? Were there
radiographs that they felt at the back to find out that the horse had arthritis
or something that they wanted to treat with Sarapin, and whether we can
argue whether it’s effective, you know, at least they had a medical basis for
using the treatment. . . . We don’t even really know the breed of the horse
technically. 200
Dr. Benson added that the invoice extracts lack sufficient information to
determine whether Sarapin should have been administered, and if so, for what
purpose:
[T]he only indication I can see is that the horses were entered to race, and
that’s not a medical diagnosis.
....
[E]ven if it is preventative, you have to have a reason. What are you
preventing? Where is the history of having needed to prevent? . . . Dr. Fenger
[Dr. Scott’s expert] in her expert report said Sarapin was used for back
injuries, back arthritis, and so you’ve got a bunch of horses that both have
back arthritis and tie up. Now, certainly those two can look alike, but you
don’t know which one is which, so it’s almost impossible to tell from these
while you’re doing one or both.” 201
Similarly asked about the billing extracts, Dr. Fenger, testified:
Q [counsel for Dr. Scott]: Are billing records medical records?
200 AB 5869-70 (Benson).
201
Id. 5870-71.
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A: In many cases, they are. A lot of veterinary practices, the billing records
serve as their medical records.
....
If a billing record is used as a medical record, then it should include the
relevant information. So I’ve seen, for example, billing records . . . I mean,
almost all veterinary programs . . . give you a spot where you can put
something so like radiographs left front ankle, for example. So I already
know that there’s . . . the horse has indicated something. . . . And then there
may be a comment, clean, NSF [no significant findings]. So they can be very
brief, but most medical record programs give you the ability to write
something in if there’s something to say.
Dr. Fenger agreed in some circumstances, “there might not be something to
say,” but then used as an example a case involving estrone sulfate:
[A]s a veterinarian familiar with racetrack practice, I know exactly what the
estrone was for. So the issue being, it’s repeatedly included in the records,
estrone, estrone, estrone. And what that tells me is this horse is bleeding
through Lasix. . . . I know that at some point in this horse’s history, it has
bled through Lasix. So that is one example of something where I can infer the
history, the medical, the finding. Now, the horse may not ever be scoped
again to tell whether it’s working or not . . . a follow-up wouldn’t necessarily
be required. . . . But I can infer from the record that the horse did indeed
bleed through Lasix and require estrone. 202
This case, however, is not about records kept for estrone, used to treat a
recognized recurring condition. According to Dr. Scott himself, Sarapin is used to
reduce inflammation and pain in spinal and soft tissue. Dr. Fenger never expressed
an opinion on whether the limited injection extracts Dr. Scott produced support his
Sarapin treatment regime.
202
Id. 6072-75 (Fenger).
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3.
Assessment of Dr. Scott’s Data Extracts.
Dr. Scott’s data extracts—the only non-testimonial evidence that Dr. Scott
offered to corroborate his asserted practice protocol—barely rise to the “cliff notes”
level of those in Dr. Shell’s case. And, just as errors in Dr. Shell’s records rendered
them unreliable, so too here Dr. Scott’s extracts fare no better. I noted earlier that
Dr. Scott seemingly injected 17 horses with bute and robaxin—data extracts that
Dr. Scott says are “mistakes. Clerical. . . . wrong date.” 203 But all 17 quarter horses
had the same trainer, thus raising the question whether the claimed “error” was in
disclosing in this case the injection data from Dr. Scott’s records, and not in
memorializing the date the injections were in fact given. In addition, the extracts
for Horse 47 reflect two Sarapin and two AMP injections on January 30 and 31,
2025, respectively. 204 Again, Dr. Scott says “[t]hat is most likely clerical error.” 205
These are but the tip of the iceberg, however.
Dr. Scott’s data extracts can also be compared to public Equibase racing data
for each quarter horse. 206
203
Id. 6309, 6310 (Scott).
204
Id. 7243 (Scott invoice).
205
Id. 6338 (Scott).
See Rule 1020 (definition) (recognizing Equibase as “the official database for Thoroughbred
horseracing.”). See also Galvin, 2026 FTC LEXIS 31, at *73 & n.257 (taking official notice of
Equibase data); AQHA Press Release, Equibase Launches Quarter Horse Stats (May 16, 2016),
https://www.aqha.com/-/equibase-launches-qh-stats; Equibase, https://www.equibase.com/profiles/
Results.cfm?type=Horse&refno=10898245®istry=T; https://www.equibase.com/ (portal offering
access to database, searchable by, for example, horse or trainer, and reporting, for example, race
performance and workout days).
206
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•
Equibase reports reveal that 13 quarter horses, covered in Dr. Scott’s
extracts, raced twice in January and February 2025, but were treated with
Sarapin only once according to the extracted entries. 207
•
For another horse, Dr. Scott reports a Sarapin injection, along with “Oral
Electrolytes-Post Race,” but Equibase does not report the horse as racing. 208
•
For still another, Dr. Scott reports injections preceding a race day, and
Equibase reports the horse as racing on the next race day. But Dr. Scott’s
extracts show no post-race treatment, which the extracts show he routinely
administered post-race. 209
There similarly are limited data extracts for the eight quarter horses
Dr. Scott testified he intended to treat with Sarapin at the time of HIWU’s
search. 210 According to Equibase, all eight raced at Sunland Park as scheduled in
February. But there are no Sarapin injections preceding those races, seemingly
because the HIWU search disrupted Dr. Scott’s protocol. 211
See AB 5238 (Horse 1 & Horse 3), 5238-39 (Horse 4), 5239 (Horse 6 & Horse 8), 5240 (Horse 12),
5242-43 (Horse 17), 5245 (Horse 21 & Horse 22), 5249 (Horse 36), 5250 (Horse 41 & Horse 43), 5252
(Horse 47).
207
208 AB 5244 (Horse 18).
209
Id. 5250 (Horse 40).
210 AB 7222, 7224-25, at ¶¶ 7, 31 (Scott wit. stmt.).
Compare AB 5238-53-UN with id. 7224-25, at ¶ 31. See id. 5224, at ¶ 33 (Scott wit. stmt.)
(“Because Mr. Bennett [HIWU’s investigator] seized the medications, I was unable to provide these
treatments. I obviously cannot generate a record of treatment that never occurred.”).
211
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Equibase reports, however, that three of the eight also raced in January
2025, and the extracts have Sarapin injections preceding those races. 212 Although
the other five quarter horses raced in February, according to Equibase none raced
in January, but all five had workouts during this period at either Sunland Park or
the nearby Frontera training facility as did one other among the eight and 15 of the
46 horses identified in the extracts. 213 There are no extracts covering these horses
on workout days, although Dr. Scott states that he uses Sarapin to “treat osseus
and soft-tissue issues during training.” 214
Dr. Scott further states that, of the four trainers for the horses in the data
extracts he produced, “two . . . stable[d] their horses at an off-site training facility”
and “had horses on a protocol that included Sarapin. . . .” 215 Again, there are no
records whether these horses received Sarapin in connection with off-track
workouts.
Thus, limitations on the disclosed data call into question the regularity of
Dr. Scott’s claimed practice, while extract irregularities erode the reliability of the
212 AB 5239 & 5245-UN.
See: (1) Raced in January 2025, AB 5239 (Kool Kue Blue) & 5245 (Chicks Comanchee & Chimes
Efforts); (2) Had one or more workouts, according to Equibase: Prince of Fast, Tren Ra, FS Stars and
Stripes, Scoot Over Baby, Jess A Bug N D Ocean, and Chicks Comanchee; and (3) Others with
workouts, according to Equibase: AB 5238-39 (Horse 1 & Horse 4), 5240 (Horse 13), 5242 (Horse 14
& Horse 16), 5245 (Horse 21), 5246 (Horse 26 & Horse 28), 5247 (Horse 29, Horse 30, Horse 31 &
Horse 32), 5248 (Horse 33 & Horse 35), 5249 (Horse 39). See AB 165, at ¶ 8 (Bennett wit. stmt.)
(“Frontera is located approximately 1.6 miles and a five-minute drive from Sunland Park.”), 5634
(Bennett).
213
214 AB 5232, at ¶ 18 (Scott wit. stmt.) (emphasis added).
215
Id. 5233, at ¶ 24.
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data introduced. Dr. Scott made the decision to offer only self-selected, extracted
information—seemingly twice removed from ordinary course veterinary records. So,
there is no way to know whether other non-disclosed practice records corroborate or
refute Dr. Scott’s compelling justification defense. Dr. Scott dismisses attention to
the extracts as a “nitpiks.” 216 Not so. His only documentary proof is comparable to
that held insufficient in Shell II. This material does not weigh in favor of his
proving compelling justification.
To the contrary, “[t]he production of weak evidence when strong is available
can lead only to the conclusion that the strong would have been adverse.” 217 This
concern is real. On those days that Dr. Scott is at the Sunland Park racetrack to
inject Sarapin into quarter horses, Covered Horses can be racing. 218 Although
Dr. Scott maintains that he has never injected a Covered Horse with Sarapin, his
216 SRPFOF ¶ 7.
See generally id. ¶¶ 6-9.
Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226 (1939). See also Int’l Union v. NLRB,
459 F.2d 1329, 1335-36 (D.C. Cir. 1972) (“[W]hen a party has relevant evidence within his control
which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to
him.”) (citing authorities); Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983) (“The
unexplained failure or refusal of a party to judicial proceedings to produce evidence that would tend
to throw light on the issues authorizes, under certain circumstances, an inference or presumption
unfavorable to such party.”). See also Roger J. Spott, D.D.S., P.A. v. CIR, 1989 WL 54065, at *5 (4th
Cir. May 22, 1989) (Where the taxpayer had the burden of proving error in the IRS deficiency
determination, by producing “boxes of documentary evidence. . . , he was taking the risk that in their
disorganized state the documents would fail to disprove the IRS’s determinations of a deficiency.
. . .”).
217
218 AB 6313-14 (Scott).
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self-selected disclosure of quarter horse treatment extracts precludes inquiry into
the veracity of his testimony. 219
State confidentiality regulations, on which Dr. Scott has relied to object to
being called on to defend, cannot excuse his failure to introduce more probative
evidence. 220 Before the arbitration hearing, he “obtained a limited waiver of
confidentiality for the identity of the horse and the intended treatment on
[February] 13th only,” and that enabled him to provide his data extracts to HIWU
with redactions. 221 He also produced to HIWU an unredacted version of this
previously-redacted material under a “verbal” confidentiality agreement. 222 I
further granted the data extracts in camera treatment in this proceeding. 223 So,
when it suited his interest, Dr. Scott found work-arounds for arguable state law
confidentiality obligations. It is reasonable to infer that he could have made
comparable arrangements for additional records, thus allowing a more fulsome
inquiry into his practice.
Where a Veterinarian asserts compelling justification, based on their mixed
practice, the Shell II arbitrator’s standard—calling for the availability of “the
complete veterinary medical records for all horses in his practice”—is a guidepost to
219
See id. 136 (Scott letter), 6233-34, 6271 (Scott).
220
See id. 5212-13, at ¶ 54 (Scott pre-hearing brief).
221 AB 7225, at ¶ 32 (Scott wit. stmt.).
222 SRPFOF ¶ 54;
223
See id. 7190, at ¶ 13 (Scott proposed findings of fact).
Matter of Scott, No. 9449, 2026 WL 1678525, at *1 (FTC ALJ June 5, 2026).
See Matter of Scott, No. 9449, FTC LEXIS 53 (ALJ June 9, 2026).
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aid in determining where the truth lies. 224 Although HISA cases are heard in
arbitrations that do not import the full array of civil litigation tools, over-arching
litigation principles can still inform analysis of the compelling justification
defense. Offering limited, self-selected veterinary records to prove compelling
justification risks distorting or garbling the true nature of the veterinarian’s
practice. 225
I do not pre-judge whether something less than “complete” records may be
sufficient proof, depending on the facts. Regardless of where the line might have to
be drawn, the limited material Dr. Scott introduced is not enough to move the
needle significantly toward, much less to satisfy, compelling justification.
4.
Sarapin Use by Other Veterinarians.
Dr. Scott maintains that Sarapin use at Sunland Park “was widespread,
open, notorious, and known to NMRC at all relevant times.” 226 During his
testimony, he identified other veterinarians who, he said, used Sarapin. However,
his sole percipient supporting witness is Dr. Tony Pickard, another longtime New
224
Shell II, 2025 WL 1784696, at *7.
225
See, e.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988) (The rule of completeness,
applicable to communications, promotes “a complete understanding of the total tenor and effect of
the utterance.”) (internal quotation marks omitted); United States v. Procter & Gamble Co., 356 U.S.
677, 682 (1958) (Disclosure “make[s] a trial less a game of blindman’s buff and more a fair contest
with the basic issues and facts disclosed to the fullest practicable extent.”); In re Halkin, 598 F.2d
176, 192 (D.C. Cir. 1979) (“[L]iberal discovery. . . contributes to a full and fair airing of all material
facts in controversy.”) (footnote omitted); United States v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942)
(privileges entitle the holder “to suppress the truth, but . . . not . . . to garble it” or to present “false
evidence and deprive the other of any means of detecting the imposition.”).
226 SPFOF ¶ 15.
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Mexico veterinarian whose practice includes racetrack horses. Dr. Pickard
maintained that “over 99% of racetrack veterinarians in New Mexico would have
[Sarapin] on their truck for Quarter Horses.” 227 But he offered that statement
without elaboration, and the basis for it is not self-evident. I thus give it little
weight. Also relevant in assessing Dr. Pickard’s evidence: his son, John, and
Dr. Scott “work together,” with Dr. John Pickard “appear[ing] in [extracts allegedly
sourced to Dr. Scott’s] invoices.” 228
No other racetrack veterinarian testified or otherwise provided evidence to
support Dr. Scott. Moreover, although the arbitration hearing was held at Sunland
Park, no trainer testified or otherwise corroborated Dr. Scott. The data extracts,
discussed above, come from only four trainers, two of whom handled nearly 3/4’s of
the quarter horses for which Dr. Scott submitted data. 229 For a third, data on only
one horse is reported, although Equibase reports the trainer racing a dozen other
horses at Sunland Park in January and February 2025. 230
None of the four trainers offered evidence explaining their apparent
willingness to allow Dr. Scott to inject their quarter horses with Sarapin. There also
is no evidence: (1) whether these trainers are representative of those whose horses
227 Pickard Stipulated Testimony, at ¶ 2.
opinion).
228 AB 6304 (Scott).
229
See also AB 6240 (Dr. Scott agrees with Dr. Pickard’s “99%”
See also id. 6341.
See AB 5238-51 (Trainers 1 and 2 handled 35 of 46 horses).
230 AB 5254 (Trainer 4 & Horse 49).
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Dr. Scott treats, much less of those trainers who race regularly at Sunland Park; or
(2) whether three of the trainers raced other horses during the relevant period; one
(Trainer 4) clearly did. Dr. Scott himself admitted that “[f]or some trainers, only a
few horses are treated in accordance with the [Sarapin] protocol. For other trainers,
I may place most or even all of their horses on the protocol. . . .” 231 His witness
statement further suggests that the four trainers covered by his data extracts are
the only ones receiving routine pre-race Sarapin injections in January-February
2025. 232
Dr. Scott’s expert, Dr. Fenger, said nothing about Sarapin’s prevalence at
Sunland Park. 233 She commented only that Sarapin was “historically . . .
commonplace.” 234 However, she also testified to having “Sarapin on [her] truck up
until May 22 of 2023 [when the ADMC Program took effect] at which point [she]
removed it.” 235 She explained why: “whether I thought it was legal or not, . . . I
didn’t want to be in Dr. Scott’s seat at the table like he is today.” 236 Regardless of
the practice of Dr. Scott and other Sunland Park veterinarians before the ADMC
231
Id. 5233, at ¶¶ 22-23 (Scott wit. stmt.).
Id. at ¶ 24 (“During the 2025 Sunland meet, [Dr. Scott’s Sarapin protocol] was the case for two
trainers who stable their horses at the racetrack. From my review and recollection, two other
trainers who stable their horses at an off-site training facility also had horses on a protocol that
included Sarapin. . . .”).
232
See generally AB 5265, at ¶¶ 30-31 (Fenger Exp. Rep.), 6095-108, 6144, 6162-64 (Fenger)
(testimony regarding Sarapin).
233
234
Id. 5265, at ¶ 32 (Fenger exp. report).
235
Id. 6144 (Fenger).
236
Id. 6163.
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Program became effective, Dr. Fenger’s “better safe than sorry” response cuts
against Dr. Scott’s compelling justification argument. To reiterate, FDA and HISAapproved alternatives to Sarapin exist. 237
Dr. Scott maintains that Sunland Park veterinarians considered Sarapin “the
standard of care to treat quarter horses. . . , very common.” 238 But his supporting
evidence, all told, is insubstantial. If Sarapin were so important for soft tissue or
bone injuries—and if its use were as widespread as Dr. Scott claims it to be—it is
reasonable to expect more corroboration for Dr. Scott’s defense. This consideration,
too, weighs against finding compelling justification.
5.
New Mexico Law and NMRC Enforcement.
Dr. Scott’s evidence concerning New Mexico law and NMRC enforcement at
Sunland Park has some, albeit limited, probative value in assessing his compelling
justification defense. Dr. Scott introduced evidence designed to show that: (1) New
Mexico law did not prohibit possession of Sarapin at Sunland Park, and even if it
did (2) for years, NMRC enforcement was lax, if not non-existent.
I consider, first, New Mexico State law and regulations. After that, I discuss
the evidence regarding NMRC enforcement. Because I have held that the Authority
237 AB 5519, at ¶ 40 (Benson supp. rep.) (footnotes omitted).
*5.
238 AB 6232-33 (Scott).
See also Shell II, 2025 WL 1784696, at
See generally id. 6227-34, 6237-6240 (Scott), 7274 (Pickard letter); Pickard
Stipulated Testimony, at ¶¶ 2-4.
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has failed to demonstrate that AMP is a Banned Substance, I deal only with
Sarapin.
a.
Racetrack Law and Regulation.
Preliminarily, I find it helpful to keep in mind the continuum needed in
analyzing state law as a compelling justification factor. At one end is prohibition: if
State or racetrack regulation prohibit Sarapin’s possession, that would refute, not
support, Rule 3214(a)’s defense. It seems implausible to argue there could be a
compelling justification to have a substance that State law or track regulation does
not allow. At the other end of the continuum, possession might simply go
unaddressed, and therefore veterinarians probably would not assume any
prohibition of possession or use. Then, the probative value of this factor in
supporting compelling justification is highest. And, in between, the capacity of state
law and regulation to inform compelling justification argument weakens, even if not
susceptible to calibration. Sarapin seems to me, at best, in the middle area, but
tilting toward prohibition.
New Mexico law authorizes the NMRC to license racetrack veterinarians,
who are subject to NMRC-issued regulations. 239 Under NMRC regulations, the
presence of a “Prohibited substance” in a racehorse can give rise to sanctions. 240
239
See N.M. Stat. Ann. § 60-1A-5 (repealed effective July 1, 2028); NMAC § 16.47.1.3.
See generally NMAC § 15.2.6.9. A “Prohibited substance” is “any drug, chemical, or other
substance which, when administered to a horse can create a change in the normal physiological
performance of the horse’s racing ability. . . .” Id. § 15.2.1.7.P(16).
240
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The Code does not prohibit a veterinarian from possessing a Prohibited
substance. 241 However, NMRC’s regulations provide that, “[i]f a licensed
veterinarian is administering or prescribing a drug not listed in the association of
racing commissioners international [“ARCI”] uniform classification guidelines for
foreign substances, the identity of the drug shall be forwarded to the New Mexico
racing commission designee to be forwarded to the racing medication and testing
consortium for classification [“RMTC”].” 242 This regulation gives a veterinarian who
“wants to utilize certain drugs that they feel would be beneficiary to their practice
or the horse” a procedure to follow. 243 Where the drug is not already included in
ARCI’s current guidelines, the veterinarian can request its submission to the
RMTC, an industry group that provides “[r]esearch, education, and advocacy for
science-based initiatives that promote the health and safety of the racehorse and
the integrity of competition.” 244
Sarapin is not included in the ARCI’s guidelines. 245 Dr. Scott did not
introduce evidence of any request to ARCI that it be submitted to the RMTC.
Executive Director Tréjo testified that there has not been a request during his
241
See NMAC § 15.2.6.8(B) (excluding licensed veterinarians from various racehorsing restrictions).
242 NMAC § 15.2.6.9(A)(3).
243 AB 5741 (Tréjo).
244 RMTC, OUR MISSION, https://rmtcnet.com.
245 AB 5519, at ¶ 42 (Benson supp. rep.), 5742 (Tréjo), 6095 (Fenger).
Guidelines).
62
See also id. 3775-837 (ARCI
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tenure, which began in 2016. 246 As a result, Mr. Tréjo testified that, in his view,
Sarapin would not be “permitted in Quarter Horses under New Mexico Racing
Commission rules.” 247 Dr. Scott contends that absence from the ARCI Guidelines
reflects Sarapin “hav[ing] no capacity to influence racing performance. . . .” 248 But it
may also reflect the inability of U.S. racing laboratories to detect Sarapin. 249
The ARCI Guidelines also identify the following “Prohibited Practice[]”: “The
possession and/or use of a drug, substance, or medication on the premises of a
facility under the jurisdiction of the regulatory body that has not been approved by
the United States Food and Drug Administration (FDA) for use in the United
States.” 250 The FDA has not approved Sarapin for use in the United States. 251
In consequence, to the extent Dr. Scott relies on Sarapin’s absence from the
ARCI Guidelines, that fact alone is not very probative of compelling justification.
i.
Compounded Substances.
Because Sarapin is a compounded substance, NMAC § 15.2.6.8(B)(10),
enacted in 2018, also applies:
Veterinarians may possess and dispense compounded medications on
association grounds under the following conditions:
246 AB 5730, 5743 (Tréjo).
247
Id. 5744 (Tréjo).
248 SPFOF ¶ 14 (citing AB 3777 [ARCI Guidelines]).
249 AB 3777 (ARCI Guidelines), 5831 (Benson); AuRSPFOF ¶ 14.
250 AB 3778 (ARCI Guidelines).
251
Id. 5518, at ¶¶ 37-40, 45 (Benson supp. rep.), 5866-67 (Benson).
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(a) The medication is prepared and prescribed in a manner that meets the
criteria for compounding established by the federal Animal Medicinal Drug
Use Clarification Act of 1994 [“AMDUCA”] (21 CFR 530) and any current
food and drug administration compliance policy guides.
(b) The medication is prepared and prescribed in a manner that meets the
criteria established in 16.19.30 NMAC by the New Mexico board of
pharmacy.
(c) The medication is labeled in accordance with Subsection H of 15.2.6.9
NMAC. 252
I consider first subparagraph (a), requiring that Sarapin comply with AMDUCA
and FDA policy guide GFI #256.
ii.
AMDUCA.
AMDUCA enables “extralabel uses of certain approved new animal drugs and
approved human drugs for animals under certain conditions.” 253 Sarapin, however,
is not, and has never been, FDA-approved. 254 Moreover, AMDUCA permits use in
animals only “when the health of an animal is threatened or suffering or death may
result from failure to treat.” 255 Dr. Scott, however, maintains that he uses Sarapin
as part of his routine, pre-race protocol for non-Covered quarter horses. He further
252
See 29 N.M. Reg. 1251 (Sept. 25, 2018). See generally AB 5744-46, 5750-51, 5757-58 (Tréjo)
(discussing the applicability of the regulation), 2857-59 (discussing the regulation’s enactment).
253 FDA, Animal Medicinal Drug Use Clarification Act of 1994 (AMDUCA), https://www.fda.gov/
animal-veterinary/guidance-regulations/animal-medicinal-drug-use-clarification-act-1994-amduca.
AMDUCA is codified in the Food, Drug & Cosmetic Act as 21 U.S.C. § 360b. See also AB 2045, at
¶ 28 (Benson Exp. Rep.), 5828 (AMDUCA “allows for off-label use of approved medications.”), 6010
(Benson) (“[M]edication compounded in compliance with AMDUCA is made from FDA-approved
substances.”).
254 AB 5520, at ¶ 45 (Benson Supp. Exp. Rep.), 5866-67 (Benson).
255 21 C.F.R. § 530.2 (implementing AMDUCA).
See also AB 2045, at ¶ 28 (Benson Exp. Rep.).
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has not offered any evidence that Sarapin treats tying up or is indicated for any
other condition where the horse’s health is threatened or where treatment is
required to avert suffering or death.
Accordingly, the requirements of AMDUCA are not met. While Dr. Scott
denies the Authority’s contention that Sarapin fails to satisfy AMDUCA, his denial
merely cites to parts of his reply brief, which say nothing at all about AMDUCA’s
requirements. 256
In addition, Sarapin is a compounded substance “derived from the pitcher
plant,” and under AMDUCA, the FDA permits compounding only from “approved
animal or human drugs” under prescribed conditions. 257 Neither Sarapin nor its
pitcher plant-derived extract is FDA-approved for humans or an extra-label use of a
new animal drug. Thus, Sarapin is not found in the FDA’s Orange Book, listing
approved medications for humans, or in its Green Book, listing approved veterinary
drugs. 258 Accordingly, AMDUCA also does not authorize its use by veterinarians.
256 SRPFOF ¶ 62, citing SRBr. ¶¶ 13-19 (arguing that New Mexico law regarding possession and
dispensing compounded medicine do not apply).
See AB 136 (Scott letter) (“Sarapin is an aqueous solution derived from the
Pitcher Plant.”), 7316 (Daily Racing Form report) (Sarapin is “a natural substance derived from the
pitcher plant that is marketed as a pain block.”), 7410 (FDA Warning Letter) (“Sarracenia Purpurea
(Sarapin) Distallate is sold for use as a component of the finished drug product, Sarapin for Injection.
. . .”).
257 21 C.F.R. § 530.13(a).
. See: (1) the Orange Book, https://www.accessdata.
fda.gov/scripts/cder/ob/index.cfm; and (2) the Green Book, https://animaldrugsatfda.fda.gov/
adafda/views/#/search.
258 AB 5518, at ¶¶ 37-39 (Benson supp. exp. rep)
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Section 15.2.6.8(B)(10)(b), which refers to NMAC § 16.19.30, is also relevant.
Section 1619.30.9 contains detailed regulations for compounding “[n]on-sterile drug
products . . . in licensed pharmacies.” 259 Among other requirements, Section
16.19.30.9(A)(4)(a) & (e)(ii) require a “prescription from a duly authorized
veterinarian” where “the patient has an emergency condition that the compounded
drug is necessary to treat. . . .” 260 Dr. Scott has not introduced any evidence showing
that the Sarapin HIWU seized met these requirements. Plus, Section
16.19.30.9(A)(4)(c) requires “[c]ompounding . . . in accordance with [AMDUCA]. . . .”
Here too, as noted above, Sarapin does not comply. 261 In consequence, Subpart (b) is
not satisfied.
Finally, Section 15.2.6.8(B)(10)(c) requires labeling in compliance with
NMAC § 15.2.6.9(H). Subpart (H)(2) details the contents that must appear on “a
prescription label . . . attached to the medication container. . . .” The Sarapin bottles
seized do not include the required information. However, there is evidence that it is
not feasible to include the detailed information, required here under New Mexico
law or analogous federal law, on the bottle label itself. Therefore, the reference to
the “container” is said, of necessity, to refer to the shipping box. 262 But no box label
259 AB 5857-58 (Benson).
260
See also AB 5788-89 (Tréjo) (describing prescription information as part of the product label).
261
Id. 5520-21 at ¶¶ 46-48 (Benson Supp. Exp. Rep.).
262
See AB 5853-54, 6007-10 (Benson), 6103-04, 6144-47, 6189 (Fenger).
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was introduced as evidence. 263 Although there is no basis for concluding that the
Sarapin seized satisfied Subpart (c), no point would be served by piling on. Even if
Subpart (c) could be satisfied, Subparts (a) and (b) still are not.
In sum, Sarapin’s compliance with these provisions of New Mexico law is, at
best, doubtful.
iii.
FDA Policy GFI #256.
NMAC § 15.2.6.8(B)(10)(a) also requires that compound substances comply
with FDA “policy guides.” The parties litigated one such guide—GFI #256—in the
context of AMP. Although my prior ruling that Rule 4111 does not apply to AMP
mooted the need to analyze compliance with the GFI #256 for carve-out purposes,
whether the guideline applies to permit Sarapin under the New Mexico
Administrative Code still needs to be considered.
GFI #256 comes into play where there is no available FDA-approved drug
covered by AMDUCA. 264 GFI #256, “a narrow exception to AMDUCA,” details the
FDA’s “enforcement policy regarding the compounding of animal drugs from bulk
drug substances. . . .” 265 As the Guidance explains:
FDA has generally refrained from taking enforcement action against animal
drugs compounded from bulk drug substances under certain circumstances
when no other medically appropriate treatment options exist. This guidance
263
Id. 5854, 6011-12 (Benson), 6147 (Fenger).
See FDA, Animal Drug Compounding, n.33, above. See also Shell I, 2024 WL 5078311, at *13-14
(discussing GFI #256).
264
265 AB 248, at ¶ 31 (Benson Exp. Rep.), 5341 (GFI #256), 5516, at ¶ 31 (Benson Supp. Exp. Rep.).
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continues this practice to balance FDA’s concerns about the risks of animal
drugs compounded from bulk drug substances, which have not gone through
Agency premarket review, with the need for such drugs when no FDAapproved or indexed drug is medically appropriate to treat the animal. 266
More specifically, GFI # 256 limits “the use of animal drugs compounded from bulk
drug substances to when a veterinarian . . . determines there is no medically
appropriate human or animal drug that is FDA-approved . . . to treat the animal.
. . .” 267
Briefly, as relevant here GFI #256 distinguishes between compounding: (a) to
meet “patient-specific prescriptions”; and (b) for “office stock,” created “without
patient-specific prescriptions,” and “meant to be kept in a veterinarian’s
inventory.” 268 Since drugs created as office stock “are made in larger quantities and
may be widely distributed to veterinary hospitals,” they “could endanger a large
number of animals if compounded improperly or under insanitary conditions.” 269
Therefore, GFI # 256 instructs specifically that office stock drugs be used where
“urgently needed, and the time needed to compound a drug in response to an
individual patient prescription may result in animal suffering or death.” 270
266 AB 5342 (GFI #256).
267
Id.
See also AB 5347 (GFI
# 256) (“[C]ompounded office stock potentially exposes large numbers of animals to drugs of
unproven safety, effectiveness, and quality.”)
268 AB 5348, 5352 (GFI #256); FDA, Animal Drug Compounding, n.33, above.
269 FDA, Animal Drug Compounding, n.33, above.
See also id. 2047, at ¶ 33 (Benson Exp. Rep.) (“Office stock compounding
allows a veterinarian to keep a limited amount of product on hand for use in an emergency.”).
270 AB 5347-48 (GFI #256).
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The drug must be compounded “from a bulk drug substance listed on FDA’s
List of Bulk Drug Substances for Compounding Office Stock Drugs for Use in
Nonfood-Producing Animals. . . .” 271 Periodically, the FDA adds bulk drug
substances to this List where, among other requirements, “[u]rgent treatment with
the compounded drug is necessary to avoid animal suffering or death, or to protect
public safety.” 272
Whether created as office stock or for a specific patient, GFI #256’s
requirements also include: (1) providing specific label information; and (2)
compounding in compliance with applicable State law. 273
The Sarapin found on Dr. Scott’s SUV does not include any patient-specific
prescription and must, therefore, be office stock. 274 That is, of course, consistent
with Dr. Scott’s testimony that he uses Sarapin as a routine prophylactic treatment
for non-Covered quarter horses. But again, Dr. Scott also has failed to show he uses
Sarapin only where there is “urgent[] need” or a risk of “animal suffering or
death.” 275 Dr. Scott’s evidence that AMP arguably protects against the risk of tying
up cannot fill the lack of similar proof for Sarapin. Consequently, GFI #256 is not
satisfied here. And as discussed above, compliance with GFI #256 is lacking in still
271 AB 5353 (GFI # 256) (internal quotation marks omitted).
272 AB 5356 (GFI # 256).
273
Id. 5348, 5352, 5353-54.
274
Id. 2018-23, 2029-34 (AMP photos).
275
Id. 5347-48 (GFI #256).
69
See also id. 5990-91 (Benson).
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other respects, as Dr. Scott has failed to show that Sarapin is compounded in
compliance with New Mexico State law.
Dr. Scott sidesteps all these issues by asserting that NMRC Rules: (1) do “not
regulate his possession of medications”; and (2) Sarapin cannot “create
a change in the normal physiological performance of the horse’s racing ability” and
“therefore do[es] not satisfy the NMRC’s definition of ‘“prohibited substances.’” 276
While New Mexico law may not prohibit Dr. Scott from possessing Sarapin, as a
compounded substance Section 15.2.6.8(B)(10) restricts its use and permits
possession at racetracks only in compliance with the Code’s provisions. Dr. Scott’s
allegedly routine, pre-race treatment protocol involving Sarapin does not appear to
comply with this State law.
*
*
*
The many deficiencies, detailed above, preclude a finding that New Mexico
regulations permitted Dr. Scott’s possession of Sarapin at Sunland Park. To the
contrary, the tilt is decidedly towards prohibition. In these circumstances, New
Mexico law does not favor Dr. Scott’s compelling justification argument. I consider
next Dr. Scott’s evidence concerning the NMRC’s enforcement practice.
276 SOBr. at 8, 9; SRBr. at 4-6; SPFOF ¶ 16.
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b.
NMRC Enforcement at Sunland Park.
Dr. Scott argues that NMRC “has never treated . . . Sarapin as [a] ‘prohibited
substance[]’ or restricted a veterinarian’s possession or use of [the] medication.” 277
He further maintains that the “Authority produced no example of a veterinarian (or
anyone) in New Mexico being penalized for the use or possession of . . . Sarapin.” 278
This aspect of Dr. Scott’s proof included evidence of Dr. Scott’s outreach to the New
Mexico Board of Veterinary Medicine (“BVM”) in 2014.
At that time, the NMRC conducted searches at New Mexico’s Ruidoso
racetrack, and questions arose concerning the authority of veterinarians to use
compounded substances. 279 Veterinarians on NMRC’s medication committee,
including Dr. Scott, requested an opinion from New Mexico’s BVM on their use of
compounded substances. 280 With the request, Dr. Scott and another veterinarian
“generated this list of products that we frequently use that were compounded.” 281
Although AMP was on the list, Sarapin was not. 282
277 SPFOF ¶ 16.
278 SOBr. at 5.
279 AB 6241-46, 6249-51, 6258-59 (Scott).
See also id. 5859-61, 6025-27 (Benson) (describing
regulatory search in New Mexico prior to 2018).
280 AB 6241-42 (Scott).
281 AB 6242 (Scott).
See id. 5236 (List of compounded substances).
282 AB 5236 (List of compounded substances). In 2014, High Chemical, a pharmaceutical
manufacturer, offered “Sarracenia Purpurea (Sarapin) Distillate,” which was “use[d] as a component
of the finished drug product, Sarapin for Injection,” and was “sold [by High Chemical]
to compounding pharmacies for further processing.” AB 7409, 7410 (FDA July 2, 2019, Warning
Letter to High Chemical). High Chemical began marketing its product in 1935, but there is no
evidence whether, as of 2014, it sold its distillate component to veterinarians such as Dr. Scott, or
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In response, the BVM wrote to the NMRC. After citing various parts of New
Mexico law regulating veterinarians generally, the BVM wrote:
The above applicable laws allow a veterinarian in New Mexico to administer
compounded drugs as well as allows [sic] the practice of extra label use of
drugs. . . . In our review of the statue [sic] and regulations of the Racing
Commission we found nothing that prohibits the current practice of race
track veterinarians. 283
The BVM also invited the NMRC to “file a complaint” if it “[b]elieved a violation of
the Veterinary Practice Act or the Board’s rule [had] occurred.” 284 Apparently, the
NMRC made no complaint at the time. 285
Regardless of Sarapin’s absence from the 2014 list of compounded substances
sent to the BVM, according to Dr. Scott, in the years that followed, NMRC raised no
issue regarding his use of Sarapin at Sunland Park. 286 He never sought to conceal
his use of Sarapin. 287 Indeed, he received the Sarapin in packages sent to the
racetrack, although there is no evidence whether their outside label or other
wrapping identified the contents of the package. 288 Significantly, however, in 2018
whether they had to obtain it from compounding suppliers. See NDC 10541-0012 (“Sarapin is a
UNAPPROVED DRUG OTHER-approved product labeled by High Chemical Company. This product
is primarily utilized in pharmaceutical processing or compounding.”) (capitalization in original;
emphasis omitted).
283 AB 140 (BVM letter)
. See also id. 6258-62.
284 AB 141.
285
Id. 6261-62 (Scott).
286
See, e.g., AB 6244-46, 6249, 6253-56 (Scott).
287 AB 6248, 6253, 6255-56.
288
Id. 6246-49 (Scott).
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NMRC adopted a new regulation covering compounded substances, Section
15.2.6.8(B)(10), discussed earlier.
After HIWU charged Dr. Scott in 2025, he reached-out again to the BVM
“and asked them to communicate with the Racing Commission.” 289 The BVM
responded by issuing a letter that is substantively identical to the one it sent in
2014. 290 Although the BVM sought a meeting with NMRC and the Authority (or
HIWU) officials, Mr. Tréjo told them Dr. Scott’s case was a HISA matter, and
apparently there was no follow-up meeting after the letter. 291
The BVM’s 2025 letter makes no mention whatsoever of the intervening
regulatory change, directed specifically to use of compounded substances at New
Mexico racetracks. The BVM’s failure to address the change, much less to offer
guidance on its operation, bespeaks a lack of thoroughness that disentitles its views
in 2025 to any significant weight. 292
Nevertheless, other evidence from Dr. Scott largely corroborates his
assessment that NMRC exercised little, if any, racetrack oversight and enforcement
289
Id. 5795 (Scott counsel to an adverse witness).
290 AB 142 (BVM letter), 5229 (Ex. 20, incorporating the letter), 7192, at ¶ 31 (asserting the letter in
a proposed finding of fact), 7396 (letter offered).
291
Id. 5798 (Tréjo).
See, e.g., Loper Bright Enters. v. Raimondo, 603 U.S. 369, 388 (2024) (thoroughness is a
consideration in assessing the persuasiveness of an agency’s view); Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944) (the weight to give an agency’s judgment depends on, among other factors, “the
thoroughness evident in its consideration”).
292
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regarding Sarapin or other compounded drug use prior to HIWU’s search.
Dr. Pickard stated:
I have not been informed by the NM Racing Commission, the track vet or any
investigator that AMP or Sarapin is illegal or legal in Quarter Horses on NM
Racetracks. I have used both of these medications over the years in my
Quarter Horse patients and have never been told not to. I have taken it as
fact that the medications were approved since there were no official
mandates set forth not to use them.
I have been searched at multiple tracks numerous times and have never had
these medications confiscated. Not once has the official conducting the search
informed me about these medications being illegal in NM. 293
But Dr. Pickard himself similarly fails to mention the 2018 change regulating
compounded substances. Again, that omission detracts from the weight to give his
evidence.
Still, HIWU did not dispute that NMRC enforcement at Sunland Park
directed to veterinarians was essentially tepid. 294 NMRC Executive Director Tréjo
testified that although racetrack veterinarians are “not supposed to have
[Sarapin],” he did not recall “any action taken against a vet” for possession. 295
293 AB 7274 (Pickard letter).
See also id. 6243 (Scott) (Sarapin was “[m]ost certainly” on his mobile
vehicle when it was searched in 2014).
See, e.g., AB 5751 (Tréjo) (Search of veterinarians are “[n]ot [done] very often. . . . No more than
probably three or four” since 2016), 5752 (NMRC’s “two investigators” “stay very, very, very busy . . .
with just general issues,” and lack “controlled substance licenses,” making it “difficult for them to
confiscate substances,” while “regulatory veterinarians are very busy with pre-race examinations
and then working the test barns and the races.”).
294
See also id. 5762 (no action taken during Tréjo’s 10 years at the NMRC), 5767-68
(investigators have not been sent to Sunland Park to inquire about Sarapin or AMP), 7277 (Brown
letter describing veterinary disciplinary practice during her time on the NMBVM).
295 AB 5761 (Tréjo).
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Responding to a “public records” request by Dr. Scott, the NMRC stated that it “has
no records . . . which meet [the] request” for NMRC rule violations relating to
Sarapin from January 1, 2020 to present in quarter horses. 296
But whatever the level of enforcement may have been, Mr. Tréjo testified
that veterinarians at racetracks are “expect[ed] . . . to follow the rules despite us not
necessarily focusing on that area of the rule book.” 297 Rules on use of substances, he
said, are “the foundation . . . to protect the horses,” a particular concern for quarter
horses. As noted earlier, New Mexico has a catastrophic injury rate that is more
than four times the national average rate. 298
Considered as a whole, the evidence supports the notion that, even after the
2018 regulation on compounded substances took effect, NMRC regulatory
enforcement related to Sarapin possession or use at Sunland Park has not been
aggressive. While enforcement inaction is not likely to be a defense if NMRC were to
bring a disciplinary case, this evidence favors Dr. Scott in assessing compelling
justification. 299
296 AB 7281 (email response), 7280 (request).
297
Id. 5753 (Tréjo).
298
Id. 5757-58.
See, e.g., Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94, 111 (2d Cir. 2010)
(“Governments generally are not estopped by the misdeeds of their agents or employees.”); United
States v. Philip Morris, Inc., 300 F. Supp. 2d 61, 71-76 (D.D.C. 2004) (rejecting defenses of estoppel,
laches, unclean hands, and in pari delicto) (discussing authorities); United States v. Fuller, No. 23209 (CKK), 2024 WL 4880497, at *9 (D.D.C. Nov. 25, 2024) (“Settled caselaw makes clear that law
officer inaction—whatever the reason for the inaction—cannot sanction unlawful conduct.”) (internal
quotation marks omitted).
299
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c.
The Parties’ Post-Search “Evidence.”
Dr. Scott argues at length that Mr. Tréjo’s post-search letter regarding the
import of New Mexico law, and his related testimony, which HIWU introduced,
should be disregarded as “a sham . . . drafted and submitted ex parte” by HIWU. 300
However, the adage “people in glass houses should not throw stones” applies. Both
sides secured documents after HIWU’s search, which they introduced to support
their respective positions. Here is the fact chronology:
Within “hours” after HIWU’s search, Dr. Scott contacted Joan D’Alonzo, a
part-time NMRC equine and health testing advisor, to ask “her interpretation of
what the New Mexico rule said regarding . . . possession of banned substances.
. . .” 301 Dr. D’Alonzo responded, essentially, in real time by brief text message: “I
don't see anything in the New Mexico rules about there being any banned
substances for vets to have in their trucks. Just says you have to follow federal
guidelines regarding controlled substances and compounded products. Good
luck!” 302 Having secured the D’Alonzo text the very day of the search, Dr. Scott—
again “[w]ithin hours”—confronted HIWU investigator Bennett, then at Sunland
300 SOBr. at 10, ¶ 28.
See generally id. at 9-12; SPFOF ¶¶ 21-23.
301 AB 5233, at ¶ 29 (Scott wit. stmt.), 6257 (Scott).
302
Id. 5505 (D’Alonzo text), 5755-56 (Tréjo).
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Park, and asked for the seized AMP and Sarapin back. 303 Since the substances were
evidence, Mr. Bennett declined to return them. 304
After the HIWU search, Dr. Scott also secured the previously-discussed BVM
letter, essentially repeating the BVM’s 2014 version. 305 In responding to HIWU’s
EAD Notice, Dr. Scott included both the D’Alonzo text and BVM letter, and he
subsequently included the material as evidence in the case as well. 306
Roughly two months after Dr. Scott’s 2025 letter response to HIWU’s EAD
Notice, HIWU counsel Allison Farrell reached out to Executive Director Tréjo to
discuss whether the NMRC “permitted the use of Sarapin and AMP in Quarter
Horses.” 307 Based on their conversation, Ms. Farrell drafted a letter for Mr. Tréjo,
who reviewed it, made minor edits, and signed it. 308 In the letter, Mr. Tréjo
explained that, under NMRC Rule 15.2.6.9.A(3), described earlier, a veterinarian
had to request permission if they wanted to use any substance “not listed on the
ARCI’s [Association of Racing Commissioners' International] Uniform Classification
303 AB 7193, at ¶ 40 (proposed finding of fact).
6262-64 (Scott), 5709-10 (Bennett).
See also id. 5233, at ¶ 31 (Scott wit. stmt.), 6256-58,
304 AB 6263 (Scott).
305
Id. 142 (BVM letter).
See AB 135-43 (Scott letter and enclosures), 1941 (text message), 5229 (Exs. 18 & 20,
incorporating the text and 2025 BVM letter by reference), 5795 (Tréjo), 6262 (Scott), 7192, at ¶ 31
(asserting the 2025 BVM letter in a proposed finding of fact), 7193, at ¶ 39 (asserting the text in a
proposed finding of fact), 7393 (text submitted with Scott letter).
306
307 AB 5403, at ¶¶ 7, 9 (Farrell affidavit).
308
Id. 5403-04, at ¶¶ 10-23. See generally AB 5733-40 (Tréjo).
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Guidelines for Foreign Substances. . . .” 309 Since Sarapin was not listed, this request
procedure, Mr. Tréjo wrote, applied, but no request had been submitted. 310 He
added that:
Even if such a request had been made, Sarapin and AMP would not be
permitted under New Mexico Racing Commission Rule 15.2.6.8(B)(10) unless
these compounded substances met the criteria of the Rule, being 1) they were
prescribed consistent with the Animal Medicinal Drug Use Clarification Act
(“AMDUCA”); 2) they met New Mexico Board of Pharmacy Rules; and 3) the
New Mexico Racing Commission's labeling rules were followed.
Under the New Mexico Racing Commission Rules, compounded Sarapin and
AMP are not permitted for use in Quarter Horses at New Mexico
racetracks. 311
Dr. Scott argues that “the Tréjo Letter was styled, in every material way, as
an agency declaratory ruling regarding the applicability of NMRC regulations to
Sarapin and AMP,” which “the Authority twice represented . . . in federal court as
the NMRC’s official position on the matter.” 312 He contends further that HIWU
sought the letter “for litigation advantage.” 313 But so did Dr. Scott in securing the
D’Alonzo text message and the BVM’s re-issued, conclusory letter.
It’s a stand-off. In this particular case, I attach little weight to either side’s
post-search documents, as too susceptible to proponent nudging “to bolster [the
309 AB 1959 (Tréjo letter), 5741.
310
Id. 5741-44 (Tréjo).
311
Id. 1959 (Tréjo letter), see also 5744, 5750-51.
312 SOBr. at 10, ¶ 27 (footnotes omitted; emphasis in original).
313
Id., ¶ 28.
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party’s] litigation position. Such post-event evidence has been called ‘all-butmeaningless’.” 314
*
*
*
To sum up, Dr. Scott’s proof of compelling justification is not powerful. He
may have a strongly-held belief that routinely injecting quarter horses with Sarapin
has beneficial effects—despite medical opinion calling that assessment into
question. However, once the ADMC Rules prohibited Possession of Sarapin as a
Banned Substance, the need to rethink using alternatives, if only to avoid risk,
should have been apparent. Instead, Dr. Scott opted to continue doing what he had
always done until HIWU’s search required him to justify Possession of Sarapin at
Sunland Park. Dr. Scott has had the opportunity to introduce probative
documentary practice evidence, attesting to the regularity of his practice and
confirming that he limited Sarapin injections to non-Covered Horses. But that
evidence was not forthcoming.
The rest of Dr. Scott’s evidence is more makeweight, than substantive. His
limited proof of Sarapin use among racetrack veterinarians adds minimal support
to his defense. At the same time, New Mexico regulatory law—particularly after the
Shell II, 2026 WL 1398851, at *21 (quoting FTC v. Whole Foods Market, Inc., 548 F.3d 1028, 1047
(D.C. Cir. 2008) (Tatel, J., concurring)). See also Chicago Bridge & Iron Co. v. FTC, 534 F.3d 410, 435
(5th Cir. 2008) (“The probative value of [post-transaction] evidence is deemed limited not just when
evidence is actually subject to manipulation, but rather is deemed of limited value whenever such
evidence could arguably be subject to manipulation.”) (emphasis in original); United States v.
Bazaarvoice, Inc., No. 13-cv00133, 2014 WL 203966, at *57 (N.D. Cal. Jan. 8, 2014) (Evidence that
“is reasonably viewed as manipulatable . . . is entitled to little weight.”).
314
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2018 amendment covering compounded drugs—cuts against Dr. Scott having
confidence that routine injection of Sarapin, even if limited to quarter horses, was
risk-free. Inaction by NMRC officials may have bolstered his confidence, but that
proof does not overcome the weight of the evidence.
Dr. Scott has failed to offer “powerful and convincing” evidence to meet his burden
of proving, by a preponderance of the evidence, compelling justification for his
Possession of Sarapin at Sunland Park when HIWU searched his SUV in February
2025. 315 HIWU proved Dr. Scott’s violation of Rule 3214(a) to my comfortable
satisfaction. 316
As I discuss below, none of Dr. Scott’s other defenses negate his ADRV.
C.
DR. SCOTT’S JURISDICTIONAL OBJECTIONS FAIL.
Dr. Scott notes that neither HISA nor the Rules extend to non-Covered
Horses, such as quarter horses that race at Sunland Park. Because, he further
asserts, he intended to use the Sarapin found on his vehicle to treat quarter horses:
(1) there is no jurisdiction under either HISA or Rule 3214(a); and (2) he cannot be
subjected to the Rule’s compelling justification defense to avoid Possession
ADRVs. 317 This argument is meritless.
315
Shell II, 2025 WL 1784696, at *11.
316 Because (1) HIWU had to meet the comfortable satisfaction standard under ADMC Rule 3121(a),
and (2) HISA Section 3058(b)(1) itself, as well as FTC Rules 1.146(b)(2) & (3), require de novo review
here, I apply this higher standard of proof, rather than the preponderance standard included in FTC
Rule 1.146(c)(6)(i).
317
See generally SOBr. at 1-2, 6-7.
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First of all, HISA itself: (1) defines “veterinarians” as “covered persons” under
the statute; and (2) instructs that the Authority’s rules may cover “[p]ossession of
any prohibited substance. . . .” 318 Thus, there is express statutory authorization to
promulgate Rule 3214(a) and to make it applicable to Veterinarians. Dr. Scott’s
argument, therefore, is limited to whether, as part of the Rule, he can be assigned
the burden of proving the compelling justification defense.
Numerous statutes and regulatory schemes apply to a person in one set of
circumstances, while exempting the person in others. Once the person’s coverage
under the statute or regulation is shown, there is no objection to putting the burden
on that regulated person to establish the law’s inapplicability: under principles of
“statutory construction, . . . the burden of proving justification or exemption under a
special exception to the prohibitions of a statute generally rests on one who claims
its benefits. . . .” 319 For example:
•
The federal securities laws: Broker/dealers, registered with the SEC, may be
held liable if they sell securities when no registration statement is in effect—
318 15 U.S.C. §§ 3051(6), 3057(2)(C).
Morton Salt, 334 U.S. at 44-45 (emphasis added) (cleaned up). See also p. 29 n.125; CFTC v.
Monex Credit Co., 931 F.3d 966, 973 (9th Cir. 2019) (“[T]his longstanding convention is part of the
backdrop against which Congress writes laws. . . .”) (internal quotation marks omitted); CFTC v.
Southern Trust Metals, Inc., 894 F.3d 1313, 1324 (11th Cir. 2018) (“the commodities trader bears the
319
burden of proof” that it comes within an affirmative defense to registration) (citing authorities);
United States v. Regenerative Sciences, LLC, 741 F.3d 1314, 1322 (D.C. Cir. 2014) (In an
enforcement action, the defendant had the burden of demonstrating the applicability of an exemption
under stem cell research regulations.) (citing authorities).
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unless the broker/dealer demonstrates that the security came within a
statutory exemption from registration. 320
•
The Fair Labor Standards Act: Employers are required to pay a minimum
wage and overtime—unless the employer proves a statutory exemption
applies to the employee. 321
•
Social Security: Employers are required to withhold or pay required
contributions—unless the employer demonstrates an exemption from
coverage. 322
•
The Age Discrimination in Employment Act: The statute prohibits age
discrimination—unless the employer shows that its actions are “based on
reasonable factors other than age.” 323
•
ERISA: Federal law prohibits various transactions by fiduciaries—unless the
fiduciary shows an exemption applies. 324
320
See, e.g., World Trade Financial Corp. v. SEC, 739 F.3d 1243, 1247-48 (9th Cir. 2014).
321
See, e.g., E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45, 47 (2025).
See, e.g., United States v. Lee, 455 U.S. 252, 255-56 (1982). Cf. Law Office of Anne Brady, PLLC
v. Department of Economic Security, 255 Ariz. 302, 304-05, 530 P.3d 1192 (Ct. App. 2023) (the
322
employer failed to demonstrate the applicability of the “independent contractor” exemption to the
State’s unemployment insurance program).
323
See, e.g., Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 91, 94 (2008).
324
See, e.g., Cunningham v. Cornell Univ., 604 U.S. 693, 701 (2025).
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•
Sports law generally: Anti-doping codes prohibit presence of prohibited
substances—unless the athlete demonstrates that he or she obtained (or is
entitled to) a therapeutic use exemption (“TUE”), which serves as defense. 325
The common structural scheme is straightforward: once a person is shown
subject to a regulatory obligation or prohibition, they can be subject to the burden of
demonstrating an exemption as a defense. The law regulates the person it covers; it
is not limited to the conduct obligated to be performed or prohibited. Here, Dr. Scott
undisputedly is a Covered Person under HISA and thus subject to its Rules. 326 As
such, he is subject to ADMC Rule 3214’s prohibition of Possession of Sarapin. 327
Rule 3214(a)’s compelling justification language “refers to an excuse or justification
for behavior that, standing alone, violates the [Rule’s] prohibition,” and “is an
affirmative defense, entirely the responsibility of the party raising it.” 328
325 See, e.g., WADA Code § 2.6.1 (covering “Possession by an Athlete”), § 2.6.2 (covering “Possession
by an Athlete Support Person,” a term that includes “[a]ny . . . medical . . . Person working with,
treating or assisting an Athlete. . . .”) (Appendix 1 Definitions); ISSF v. WADA, CAS 2013/A/3437, at
¶¶ 292(2) & 323 (Dec. 18, 2014) (“The burden of establishing satisfaction of [the criteria for a TUE]
rests on the athlete.”); Starykowicz v. USADA, CAS 2020/A/6892, at ¶¶ 64, 71, 76, 79-80, 86 (Aug. 5,
2020) (TUE denied where the athlete failed to satisfy his burden of proving that suggested existing
alternative therapies were unreasonable); BikeNZ v. Mosen, SDT/06/05, at ¶ 16 (May 25, 2005)
(warning issued for inadvertent failure to obtain a TUE). See generally WADA Code § 4.4
(Therapeutic Use Exemptions).
326
See, e.g., AB 5231, at ¶¶ 2-4, 6-7 (Scott wit. stmt.), 6210 (Scott); SRPFOF ¶¶ 4-6.
See, e.g., Matter of Perez, No. 9420, 2024 FTC LEXIS 206, at *15 (ALJ Feb. 7, 2024), pet. denied,
2024 WL 3824065 (FTC Aug. 8, 2024); HIWU v. Overly, Case No. 1501000595, at ¶ 3.3 (Aug. 21,
2025) (“Dr. Overly is a veterinarian engaged in the care and/or treatment of Covered Horses and is
thus a Covered Person who is bound by and subject to the ADMC Program.”), aff’d, 2026 FTC LEXIS
61 at *4, vacated and remanded on other grounds, 2026 FTC LEXIS 64.
327
Meacham, 554 U.S. at 95. See also Overly, 2026 FTC LEXIS 61, at *11-12, 25, 39-40, 45, 51, 5960, vacated and remanded on other grounds, 2026 FTC LEXIS 64; Shell II, 2025 WL 1784696, at *11,
18, 24, 26.
328
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As a kindred argument, Dr. Scott argues that, lacking jurisdiction over
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