For at least the third year in a row, United Poultry Concerns (UPC) the animal rights nonprofit “promoting the compassionate and respectful treatment of domestic fowl,” filed a lawsuit to ban the religious practice called Kaporos, where a chicken is used in a religious ritual and then slaughtered during the high holy days.

UPC’s lawsuit was brought in California as a “private attorney general action under California Business and Professions Code § 17200 (the ‘Unfair Competition Law’or ‘UCL’). Plaintiff seeks an injunction to require compliance with California Penal Code (‘PC’) section 597(a), which prohibits intentional killing of an animal and does not contain an exception for religious sacrifice. Defendants [allegedly] engage in business practices for profit in which they charge a fee to kill and discard animals in direct violation of PC 597(a).” United Poultry Concerns v. Chabad of Irvine, et al., Case No. 8:16-cv-01810-AB-GJS (C.D. Cal. Sept. 29, 2016).

The Court had initially granted Plaintiff’s Temporary Restraining Order (Id., Dkt. No. 18), but on Oct. 11, 2016, in a “Telephonic conference re: Defendants’ Motion to Dissolve Temporary Restraining Order; Opposition to Plaintiff’s Preliminary Injunction Motion; and Motion to Strike the Complaint,” Hon. André Birotte Jr., U.S.D.J. dissolved the Temporary Restraining Order and ordered that the “parties shall meet and confer to set briefing deadlines and a proposed date for the Preliminary Injunction hearing.” Id., Dkt. No. 29.

In the past, lawsuits were filed in New York City.

According to the Alliance to End Chickens Kaporos’ (the Alliance) website, Karen Davis, founder of UPC also founded the Alliance in 2010.

As explained on its website:

The Alliance to End Chickens as Kaporos is an association of groups and individuals who seek to replace the use of chickens in Kaporos ceremonies with money or other non-animal symbols of atonement. The Alliance does not oppose Kaporos per se, only the cruel and unnecessary use of chickens in the ceremony.

More to come on this case.

NYC Council is at it again.

This time, they are considering an ordinance that will ‘prohibit the display or exhibition of many wild or exotic animals, with exceptions for accredited zoos, research facilities, religious ceremonies or celebrations, and educational or conservation-related programs or presentations.”

Clearly, the ordinance, if passed, would shutter all circuses that include exhibitions of wild or exotic animals, but it could also prohibit television programs filmed in NYC that display these animals.

As reported by Verena Dobnik, Associated Press, on Oct. 13, 5:22 pm at

The New York legislation was first introduced about a decade ago by Councilwoman Rosie Mendez, a Manhattan Democrat. Another Manhattan Democrat, Councilman Corey Johnson, recently joined in, saying that “trucking wild animals in and out of the city strictly for entertainment purposes is not a humane way to be treating them.”

A hearing on the proposed ordinance (Int. No. 1233) will be held by the Council’s Committee on Health on Oct. 20. Councilman Johnson serves as the Chairman of that committee.

Notably, Johnson was co-sponsor of the pet store sourcing ban that has been discussed numerous times, including recent blogs: Pet Stores Under Attack-Mandatory Sterilization Preempted by State Law ; Pet Stores Under Attack-Pet stores do not contribute to local overpopulation ; Pet stores under attack-sourcing bans violate the Supremacy Clause ; Pet Stores Under Attack-Continued: Shelters, Rescues and Pet Stores sell the same product – dogs and cats ; Pet Stores Under Attack-Continued: The New York City Pet Store Law Violates the Commerce Clause ; Pet Stores Under Attack.

Not surprisingly, the animal rights “nonprofits” NYCLASS and HSUS support the ban.

Circuses and related associations, including Ringling Bros. and Barnum & Bailey Circus and the Circus Fans Association of America (CFAA), are opposed to the ban. As Feld Entertainment (parent of Ringling Bros.) explains on their website:

Through the circus, every year hundreds of thousands of children are exposed to magical experiences with lions, camels, and other exotic animals like nowhere else. Help us stop this bill and save the circus for generations of families to come. Don’t let animal extremists end a 146 year family tradition.

If you want your voice heard, you should testify at the hearing on October 20, 2016 at 10 am located at Council Chambers, City Hall, 250 Broadway, New York, NY 10007.

Since its passage in the Senate, there has not been much action with the Assembly version of S63.

However, as recently reported by Andrew George on

“Lesniak says he’s planning to amend the bill” to address concerns of pet store owners and their sources, including “eliminating the grandfathering portion of the measure and lifting the restriction on new pet stores to only source from kennels, shelters or animal rescues.”

However, there is no new version of the bill with these amendments to review.

Even with these amendments, the bill and the existing law, impermissibly bans sales to pet stores from licensed breeders who have not been finally determined to have violated the Animal Welfare Act (AWA).

The Pet Protection Act bans sales to pet stores from licensed pet dealer who:

  • has been cited on a USDA inspection report for a direct violation of the federal AWA or corresponding regulations during the two-year period prior to purchase;
  • has been cited on a USDA inspection report during the two-year period prior to the purchase by the pet store for three or more indirect violations of the Awa or corresponding regulations.
  • is cited on the two most recent USDA inspection reports prior to the purchase of the animal by the pet shop for no-access violations.

As recently discussed in Pet Stores Under Attack, only an USDA Administrative Law Judge can make a determination that a licensee has violated the AWA. A noncompliant item on an inspection report does not constitute a violation of the act.

Individual pet stores and customers can (and should) review USDA reports and determine, on a case-by-case basis, whether to purchase from particular breeders.

S63, the year-old amendments to the PPPA and similar ordinances will not (and have not) affected any actual puppy mills, because, as defined by USDA’s OIG, these facilities are large commercial unlicensed breeders. Banning sales from hobby breeders, exempt from USDA licensure because these breeders provide humane care to their dogs, will not affect puppy mills.

The City Law includes mandatory sterilization requirements for 8 week-old puppies and kittens who weigh at least 2 pounds.

The question is not “can the surgery be performed on a 2 pound 8 week old puppy” but rather, based on the totality of the circumstances, can the veterinarian recommend the procedure for a puppy or dog housed before and after surgery in a pet store and obtain informed consent from the animal’s owner.

For the following reasons, as NYPWA experts and NYC veterinarians testified, the answer is no—not without violating the standards of veterinary practice the State requires.

The State considers it unprofessional conduct if a veterinarian fails to obtain informed consent before proceeding with any medical care or surgery, and has disciplined veterinarians who have failed to obtain informed consent.

The State requires each pet store to designate a veterinarian to provide care to pets in the store, and to provide accepted veterinary standards of care to all pets in pet stores both pre- and post-operative.  This cannot be accomplished if a veterinarian performs the mandatory surgery because, no matter the age, there are environmental stressors in a pet store that, when added to the stress of anesthesia and surgery, will harm animals.  This is most serious for puppies whose immune systems are still developing.

The Law prohibits the transfer of ownership until after the pet is sterilized.  Therefore, the pet must return to the pet store after the surgery for post-operative care, which according to veterinarians is substandard care.

“A pet store is not a suitable environment for post-surgical recovery of baby animals.”  “Post-operative care typically provided by pet owners in their home cannot be performed in a pet store.”

Recently scientists have discovered that early gonadectomy is harmful to pets.  “Gonadectomy prior to puberty or sexual maturity may make the risks of some diseases higher in certain breeds and individuals.”

The American Veterinary Medical Association, the Society for Theriogenology and the American College of Theriogenology are opposed to mandatory sterilization laws for privately-owned pets.  Based on scientific evidence, veterinarians and specialists now recommend delaying sterilization until the first heat to prevent the harm from premature removal of endocrine glands needed for proper growth and certain metabolic disorders and cancer.

According to the Association of Shelter Veterinarians, “A veterinarian should make the final decision regarding acceptance of any patient for surgery . . . [t]he surgeon should use discretion regarding minimum and maximum patient age and body weight taking into account the availability of staff expertise and necessary equipment to care for patients.  Owned pets may be best served by scheduling surgery at 4 months of age or older . . . [i]n situations involving animals that will be placed for adoption, neutering is best performed prior to adoption . . . to ensure compliance.”

The interstate pet market is based on sales of puppies between 8-14 weeks of age, the time for optimal socialization with their owners.  The City’s response to professional objections to early sterilization is that the pet stores should hold onto these puppies for a longer period of time.  According to animal behavior experts “[d]elaying sales as the City has suggested traumatizes the animals [and] increases undesirable behavioral traits that are detrimental to successful lifelong pet ownership.”

For all these reasons, the City Law creates an insurmountable obstacle for pet stores and veterinarians to comply with both the State and City Law, and should be considered preempted by State law.


Pet stores used to be the primary source for puppies in the U.S.  That role has drastically changed-rescues and shelters are now the dominant providers of pets, replacing pet stores.  In fact, thousands of puppies are imported into the Northeast to supply the increasing demand for “rescued” pets, as promoted with million-dollar campaigns from nonprofit animal rights organizations’ intent on eliminating commercial dog breeding, hobby breeding, and sales from pet stores.

At the same time, shelters, condemned by the public for euthanizing animals are now transferring animals to other shelters and rescues to improve their euthanasia statistics.

The overpopulation of dogs in many municipalities and towns is often used as the reason that pet store sourcing bans are necessary.  However, this is a false premise.  The overpopulation of purposely-bred pets sold by pet stores has been effectively controlled for years.  For years states, particularly in the Northeast, have adopted programs to encourage responsible pet owners to spay and neuter their pets.  Most of these programs, largely focused on subsidizing these surgeries, have been effective in reducing the number of unwanted puppies in this part of the country.  Maine has had a spay/neuter program for many years called Help Fix ME, run through the Department of Agriculture’s Animal Welfare Program and intended for income-eligible individuals.  The program provides funds to reimburse veterinarians to spay/neuter cats and some breeds of dogs.  Over the years that it has been in existence this program has enabled thousands of individuals to adopt pets, have them neutered at a low cost (for a nominal co-pay), and enjoy the companionship that pet ownership can provide.

New York has a similar program―Animal Population Control Program―run for the State Department of Agriculture and Markets, Division of Animal Industry by the ASPCA.  Similar to Maine’s program, the New York State program underwrites the cost of neutering cats and dogs for income-eligible individuals.  Interestingly, eligibility requirements state that animals must not have been imported from outside the State of New York.

As spay/neuter programs succeeded, at least in the Northeast, the numbers of readily adoptable dogs at shelters, and those requiring euthanasia, was in rapid decline.  In the City, there appears to have been a similar decline, based on reports from the Mayor’s Alliance for NYC’s Animals, demonstrating a remarkable decline in the euthanasia of unowned dogs and cats in the Shelter.  Animal Care & Control in NYC has had a significant decrease in the number of dogs housed in the shelter and an 81% decrease in the number of dogs euthanized since 2003.  According to Risa Weinstock of the Animal Care & Control Program in the City, pit bulls (which are not sold by pet stores) are the most prevalent breed in Shelters.  Weinstock testified that much of the overpopulation problem at Shelters comes from irresponsible pet ownership and breeding for profit, particularly of pit bulls which sell for over $1000 dollars per puppy adding that “[t]he majority of the dogs that we take in and the majority of our population are pit bulls and pit bull mixes . . .”

According to Tufts’ Gary Patronek – the Director of Tufts’ Center for Animals and Public Policy at Tuft’s School of Veterinary Medicine – U.S. shelters may be a victim of their own successes.  “The drive to have dogs spayed and neutered in the USA has cut down on unwanted litters.  And adoption campaigns have helped empty dog pounds . . . people who want to adopt dogs increasingly find aged dogs or undesirable breeds like pit bulls at shelters . . . In the last seven years, one organization in Puerto Rico has shipped more than 14,000 strays to the states for adoption.”

A recent study of 18 U.S. animal shelters to identify “the types of dogs present in today’s animal shelters,” confirms that the population of dogs in shelters are not purebred dogs from the pet stores.  The National Animal Interest Alliance found:

According to this study, the number of purebreds in U.S. animal shelters is closer to 5% (5.04%) than to the 25% so commonly cited by national animal organizations and quoted by the media.  It is interesting to observe that the number of purebreds in shelters would be 3.3% were it not for two breeds that are overrepresented, Chihuahuas and dogs described as Pit Bulls. Together, these two breeds account for 35% of all purebreds listed by shelters in this study. The public seems to be aware that dogs described as Pit Bulls are overrepresented in American shelters. What is not well known is that Chihuahuas are the single most numerous purebred found in shelters today. Because Chihuahuas are small, attractive to adopters and highly adoptable, their numbers are especially high in shelters that import dogs for adoption.

It is clear that blaming pet stores on the overpopulation of unowned, stray dogs is yet another example of the intentional misrepresentation of facts used by retail rescue organizations and law makers to support pet store sourcing bans.  If cities like New York are concerned about the number of dogs in its shelters, they should ban the importation of the thousands of dogs imported through retail rescue channels that are most likely to end up in animal shelters.


The interstate pet market has been targeted for decades by NGO’s intent on eliminating purposely-bred pets and replacing them with randomly-sourced and irresponsibly-bred pets sold through rescue and shelter channels. According to the Humane Society of the United States (HSUS) more than “140 jurisdictions nationwide” have recently passed pet store sourcing limitations or bans, with 35 local bans passed in the first five months of 2016 alone.  The patchwork of ordinances affecting retail pet stores and their sources are decimating the interstate pet market and create an impermissible obstacle to the mechanisms USDA has adopted to enforce the Animal Welfare Act (AWA).  These ordinances, therefore, violate the Supremacy Clause and are preempted by the AWA.


There are two ways a local jurisdiction can adopt laws governing the pet market without running afoul of the Supremacy Clause.

  1. Local jurisdictions may require pet dealers, including Class B licensees and USDA exempt breeders to be licensed and comply with standards in addition to those prescribed in 7 U.S.C. § 2143(a)(8)(1); or
  2. Local jurisdiction may protect their citizens against dangerous animals, infectious diseases, or other hazards to public health.

The pet store sourcing bans do neither. The sourcing bans do not require additional humane standards of care by market participants—they simply ban sales from certain (licensed) sources in favor of unlicensed, randomly sourced pets, without regard to any requirements relating to animal care or welfare. The sourcing bans are also unrelated to public health or safety concerns that would be defensible under police powers.  Banning sales of puppies from licensed or exempt sources and limiting or favoring sales from rescue channels does not protect local consumers from health or safety risks—in fact, it increases the risk of importation of infectious diseases and parasites.


These sourcing bans are a significant hindrance to the mechanism Congress established in the AWA to ensure that animals in interstate commerce are treated humanely. The interstate pet market includes breeders, wholesalers, and retailers.  Some of these entities, like retail pet stores that sell face-to-face or breeders with four or fewer breeding females are exempt from licensure under the AWA, but they are nevertheless part of the interstate market.  The public lacks an understanding of the depth and breathe of the interstate pet market, and the comprehensive licensing scheme USDA has deployed to enforce the AWA.


A state law is preempted if it “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987).  The Supreme Court’s obstacle preemption analysis in Geir is instructive here. The Court found that a state law that would have required manufacturers of all Honda Accord and similar cars to specifically install airbags which the Court held “would have stood ‘as an obstacle to the accomplishment and execution of’ the important means-related federal objectives” set forth in the National Traffic and Motor Vehicle Safety Act, and was therefore preempted. Geir v. Am. Honda Motor Co., Inc., 529 U.S. 861, 881 (2000).


Here, Congress and USDA, through the AWA, identifies specific classes of licenses and requires pet dealers to qualify for and maintain humane standards of care to be federally licensed, unless they have specifically exempted certain breeders from licensure because they already provide such care. By banning sales from these entities without regard to the care they provide their animals, the sourcing bans interfere with this specific method Congress has established.


Despite the fact that the sourcing bans do not require more rigorous standards of care than required in the AWA and by the USDA, NGO’s have succeeded in convincing legislators and the public that these sourcing bans are needed because the standards of care enforced by USDA do not provide “humane” standards of care, and even if they did, that USDA has “allegedly” proven it is unable to enforce those standards. While local jurisdictions may require standards of care that exceed those mandated by the AWA (which they have not done), they cannot redefine what qualifies as “humane standards of care.”  Congress has not amended the AWA to strip USDA of its authority or declare the standards deficient even though it has had ample opportunity to do so.


Further, the national patchwork of sourcing bans conflict with each other and the AWA and is precisely the situation the Supremacy Clause was established to avoid. See, e.g., Darling v. Mobil Oil Corp., 864 F.2d 981, 984 (2d Cir. 1989) (establishing a “single, uniform set of rules to regulate the grounds for termination and nonrenewal and eliminate the uneven patchwork of rules governing franchise relationships which differ from State to State.”) (internal quotation omitted); Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 113 (2d Cir. 2008) (rejecting “a patchwork scheme of regulation [that] would introduce considerable inefficiencies”) (internal quotation omitted).  If such laws are not enjoined they will cumulatively render the federal law superfluous to the local sales bans or, at best, be subject to a labyrinthine patchwork of local regulation.


For example, pet stores in many localities, like Albuquerque, N.M., are not permitted to sell dogs or cats. Albuquerque, N.M. City Ordinance§ 9-2-3-12.  In Sunrise, Florida pet stores can only purchase from shelters, rescues, or “hobby breeders” who are limited to producing one litter per year per breeding dog (male or female). Maryeli’s Lovely Pets, Inc. v. City of Sunrise, 2015 U.S. Dist. LEXIS 98451, at *2-*3 (S.D.Fl. June 24, 2015).  In Cook County, Illinois “a ‘pet shop operator’ may only sell animals obtained from a breeder that (among other requirements) holds a USDA class ‘A’ license and ‘owns or possesses no more than 5 female dogs, cats or rabbits capable of reproduction in any 12-month period.” Mo. Pet Breeders Ass’n v. Cnty of Cook, No. 14-06930, 2015 WL 2448332, at *1 (N.D.Ill. May 21, 2015), appeal docketed, No. 15-2895 (7th Cir. Sept. 3, 2015).  In New York City, pet stores can only purchase from Class A breeders—pet stores are expressly prohibited from purchasing from Class B dealers.


To support these allegations, the NGO’s: (1) raise the specter that pet stores’ sources are puppy mills based only on noncompliant citations on USDA’s inspection reports which they misrepresent as violations of the AWA; and (2) claim USDA fails to properly enforce the AWA as determined by USDA’s Office of the Inspector General’s 2010 report, “Inspections of Problematic Breeders.” NGO’s also mischaracterize brokers and distributors as “evil middlemen,” despite the fact that federal law permits intermediaries to participate in the interstate commerce of pets, by establishing a separate classification for these market participants (Class B license).  All these conclusions are based on NGO “investigations” even though no one other than USDA is authorized to inspect USDA licensees or reclassify Class B licensees or USDA exempt breeders as pet dealers who provide inhumane care.


States and local governments may create and enforce their own laws and regulations to protect animals, which may exceed the AWA standards, but they cannot adopt laws with the intent and effect to exclude legitimate, licensed or exempt pet dealers from selling healthy, domestic (not wild or inherently dangerous) pets to pet stores, as the AWA has contemplated and permitted. Laws can be adopted to prohibit the sales of all pets or particular types of pets (like ferrets) if they are considered dangerous or even too expensive for local governments to regulate, but this is not what the sourcing bans have done.


The effect of these sourcing bans since their initial adoption in 2006 has resulted in a quantitative effect on the entire pet industry, resulting in 3,488 fewer Class A licensees and 1478 fewer Class B licensees nationwide—a 75% and 85% drop respectively. Imagine the impact to biomedical research if similar ordinances were passed that banned continued research based on noncompliant items on USDA inspection reports and NGO’s contention that animal use in research is inhumane?  For example, New Jersey’s pet sourcing bans prohibit sales to pet stores from a licensee who has been cited on a USDA inspection report for: (1) a direct violation of the AWA during the prior 2 years; (2) 3 or more indirect violations of the AWA during the prior 2 years; or (3) a no-access violation of the AWA on the 2 most recent inspection reports.  Despite the fact that the licensees have not been “finally determined” to have violated the AWA, pet stores may not purchase from these licensees.  If similar restrictions were applied to biomedical research facilities, most research involving animal testing would cease.

Shelters, Rescues, and pet stores all provide pets for consumers. The transfer of ownership is the same, whether described as an “adoption” or “sale.” Both the federal and state governments consider the transfer of ownership from these entities to be equivalent. The transfer of money for these pets is considered remuneration, whether based on a sale, adoption fee or donation. USDA “consider[s] acts of compensation to include any remuneration for the animals, regardless of whether it is for profit or not for profit.” The critical question is whether the comparators serve the same market, not whether the articles of commerce are identical.

Pet stores, shelters and rescues are all considered “pet dealers” as defined by Congress in the AWA and USDA. A pet dealer is “any person who, in commerce for compensation or profit delivers for transportation . . . buys, sells or negotiates the purchase or sale of any dog or other animal . . . for use as a pet.”

The legislative history of the AWA makes clear that this definition was “intended to include nonprofit or charitable institutions which handles dogs and cats” and that the definition of “dealer” was “not intended to exclude from licensing or regulation those nonprofit or charitable institutions or animal shelters which supply animals in commerce to research facilities for compensation of their out-of-pocket expenses.”

Importantly, the Mayor’s Alliance for NYC’s Animals, a 501(c)(3) non-profit charity, has been functioning as an unlicensed USDA Class B dealer by transferring animals from the City’s Shelters to more than 140 partner Rescues in a program called the New Hope Transfer Program. Alliance President “Hoffman said she thinks of the Transfer Program as a giant distribution network with AC&C as the ‘wholesaler’ and the partner organizations as ‘retailers’ who get the animals face-to-face with the public.”

Like pet stores, rescues and some shelters import dogs into the Northeast for sale/adoption, similar to the business model of a pet store. The biggest difference between pet stores, rescues and shelters is that pet stores and their sources are highly regulated and shelters and rescues are not.

The explosion of interstate and international transportation of dogs and cats through rescue channels, largely unregulated, exposes humans and animals alike to infectious, contagious diseases and parasites. As a result, state animal health officials adopted or amended state laws to regulate animal transfers from shelters and rescues in similar or more stringent ways than sales from pet stores. USDA and CDC have also issued alerts and amended regulations to prevent disease spread from pets imported from other countries for sale in rescue channels in the U.S.

One of the most profitable shelters/rescues in the NYC area, the North Shore Animal League (NSAL), advertises that they sell dogs and cats throughout the City, which they regularly obtain from substandard breeders throughout the country. According to their website, they “reach across the country to rescue animals from overcrowded shelters, unwanted litters, puppy mills, natural disasters and other emergencies and find them permanent, loving homes.”

NSAL rescued at least 3,562 pets from 13 states and Puerto Rico from December, 2010 until December, 2014. This is a highly lucrative business. In Fiscal Year 2013, NSAL reported: total revenues of $35,655,064, with $1,524,982 for its Pet Rescue and Adoption; compensation of current officers, directors and key employees totaling $1,611,478; and payment of other salaries and wages totaling $10,210,036. NSAL also reports that it contracts with other rescues and shelters, obtaining and importing pets for adoption from other states to the State and City.

For example, Precious Friends, a shelter in Tennessee contracts with NSAL to “take [animals] from shelters located in Tennessee, Kentucky, Georgia, Ohio, Texas, Illinois, Louisiana, Arkansas, Alabama, and Indiana” and send them to NSAL.

More recently, NSAL has advertised to purchase puppies from any source for resale.


At its core, the Law is an attempt at economic protectionism of the City’s favored source of pets, animal shelters and rescues, who are expressly exempted from the Laws’ sourcing restrictions and mandatory sterilization requirements for pet stores, and discriminates against articles of commerce (puppies) coming from other states based simply on their origin from Class B licensees. See Philadelphia v. New Jersey, 437 U.S. 617, 626-627 (1978)

This law does not protect the public health or welfare, an oft-cited defense used by cities like New York in response to constitutional challenges that the laws violate the Commerce Clause.

If the City wanted to ban the importation of puppies to protect human or animal health, it could do so by banning the importation of all puppies from any source. Instead it has, in practical effect, banned the importation of the highly regulated, inspected, purposely bred and humanely raised healthy puppies from Class B licensees to pet stores, and favors the importation of dogs known to have the highest incidence of infectious diseases, behavioral and physical disorders from retail rescue channels.

The City said the Law is needed to prevent the sale of puppies from puppy mills, where they claim pet stores obtain their puppies. First, pet stores do not buy from substandard, large commercial breeders, known as “puppy mills.” NYC pet stores buy their puppies from either USDA licensed breeders with 5 or more females that have not been finally determined to have violated the Animal Welfare Act or breeders with 4 or fewer females whom USDA has determined do not have to be licensed because they exceed humane standards of care. These purchases are commonly made with the assistance of Class B dealers who serve as the wholesalers, or middlemen of the interstate pet market. Since the Law bans sales from Class B dealers to pet stores, it creates an impermissible burden to interstate commerce.

The Law discriminates against the sources NYC pet stores rely upon (Class B’s and their sources) who are out of state and favors the in state rescues and shelters who obtain their animals from unlicensed sources.

Further, the burden imposed on interstate commerce is quantitatively and qualitatively different from that imposed on intrastate commerce, a critical element in commerce clause analysis. National Electrical Manufacturers Ass’n. v. Sorrell, 272 F.3d 104, 109 (2nd Cir. 2001) The Law forces the entire regulated interstate pet market to change their marketing practices, but does not require NYC’s shelters and rescues to make any changes.

This Law, along with the 140 other pet store sourcing bans that HSUS says have been passed throughout the country, has already impacted the interstate pet market.

For example, the USDA-estimated there are between 5,800-10,360 exempt breeders throughout the country, will be unable to sell to pet stores in the City. For these breeders to sell to pet stores in the City, they will have to add breeding females and become Class A licensed breeders.

From 2008 to 2014 the number of Class A breeders decreased by 75%, in large part as a result of pet store sourcing bans. Class A breeders will have to add staff and marketing efforts that they currently rely on Class B dealers to provide. Many Class A breeders cannot expand their businesses, and therefore will be unable to sell to NYC pet stores.

From 2008 to 2014 Class B pet dealers decreased by 85%, in large part as a result of pet store sourcing bans. The City bans Class B sales to pet stores entirely. Because the New York City market is the largest pet market in the country, the impact of this Law to the interstate market will be significant.


We are proud to represent the New York Pet Welfare Association, whose members include purposely-bred dog owners, breeders, wholesalers, pet stores and veterinarians from across the country. This association, like many other hard-working, animal-loving businesses and individuals, has been increasingly under assault by wealthy nonprofit and retail rescue organizations, including ASPCA and HSUS, (“Retail Rescue Organizations”) intent on eliminating the only source of healthy, humanely-raised, highly regulated puppies in this country.

Over the next several blogs I will describe the legal challenges facing the interstate pet market, including the NYPWA and its members in New York City.

New York City adopted a law which was drafted to essentially eliminate pet stores as a source of pets for City residents—actions that necessarily impact interstate commerce as will be discussed. The law favors the Mayor’s Alliance for NYC’s Animals, the City’s animal shelter (Animal Care & Control) and Retail Rescue Organizations that, despite their “nonprofit” status, are profiting handsomely from their transactions with pets, particularly dogs. As deputy commissioner of the New York City Department of Health and Mental Hygiene Daniel Kass testified, the intended effect of this law is to make it “more difficult to acquire [dogs and cats] through pet shops, or more expensive to acquire puppies or kittens from breeders. We hope that, overall, the expanded regulation of pet shops will encourage New Yorkers to adopt from shelters run by Animal Care and Control.”

The City law bans sales to pet stores from all Class B licensees (whom USDA licenses as wholesalers who purchase from breeders and sell to pet stores) no matter how well they take of their animals. There are no stricter standards required for these licensees to comply with. In fact, the law, as it pertains to Class B’s, has no standards at all. As long as you qualify for and have obtained a USDA Class B license, you can no longer sell to pet stores in the City.

The City law also limits sales to pet stores from Class A breeders, as long as they have not been finally determined to have violated the Animal Welfare Act (AWA) within a specified number of years. Only a USDA Administrative Law Judge can make a final determination of such a violation. However, commonly, the Retail Rescue Organizations intentionally misrepresent that findings on USDA inspection reports are violations of the AWA. They are not. Noncompliant items on inspection reports are not considered finally determined violations of the AWA.

By limiting sales to pet stores from Class A breeders, the law silently prohibits sales from hobby breeders to pet stores—those with 4 or fewer breeding females that USDA has exempted from licensure after finding that they meet or exceed the humane standards of care required by federal law.

In addition to these sourcing restrictions, which animal shelters and rescues are expressly exempt from, the law requires that pet stores sell only dogs and cats that are spayed or neutered as long as they weigh a mere 2 pounds and are at least 8 weeks old. Despite testimony from veterinarians, including those with expertise in the field of animal reproduction, informing the City that such a requirement will unnecessarily harm many puppies and kill some, the City has not amended this law.

This law, as we have alleged, impermissibly discriminates against interstate commerce and creates an insurmountable obstacle for the entire interstate pet market to comply with the enforcement mechanisms set forth in the AWA and related regulations, which includes a robust licensing scheme for breeders, wholesalers, and retail operations. The law similarly creates an insurmountable obstacle for veterinarians and pet stores to comply with state laws governing veterinary medicine and also the draconian provisions mandating sterilization of pets before sale.

These issues will be discussed separately in upcoming posts.


In preparation for the VFD final rule, which outlines the revised process for authorizing use of VFD drugs (animal drugs intended for use in or on animal feed and that require the supervision of a licensed veterinarian), FDA released it’s final version of its industry guidance #233 titled “Veterinary Feed Directive-Common Format Questions and Answers.”

While rejecting a suggestion that FDA require a uniform veterinary feed directive form, FDA has provided a “common VFD format [that] would help veterinarians, their clients (i.e., animal producers), and distributors (including feed mills) quickly identify relevant information on the VFD.”

In addition to providing a list of information that is required, FDA has provided a blank VFD form and several examples of completed forms, several of which are reproduced below.

Blank VFD form
Blank VFD form
Example 1 VFD form
Example 1 VFD form
Example 2 VFD form
Example 2 VFD form

Example 2 VFD form

The information that must be included pursuant to § 558.6(b)(3) on any form utilized includes:

the veterinarian’s name, address, and telephone number;

the client’s name, business or home address, and telephone number;

the premises at which the animals specified in the VFD are located;

the date of VFD issuance;

the expiration date of the VFD;

the name of the VFD drug(s);

the species and production class of animals to be fed the VFD feed;

the approximate number of animals to be fed the VFD feed by the expiration date of the


the indication for which the VFD is issued;

the level of VFD drug in the feed and duration of use;

the withdrawal time, special instructions, and cautionary statements necessary for use of

the drug in conformance with the approval;

the number of reorders (refills) authorized, if permitted by the drug approval, conditional

approval, or index listing;

the statement: “Use of feed containing this veterinary feed directive (VFD) drug in a

manner other than as directed on the labeling (extralabel use), is not permitted.”;

an affirmation of intent for combination VFD drugs as described in § 558.6(b)(6); and

the veterinarian’s electronic or written signature.

It would be surprising if veterinarians did not use the forms suggested by FDA to insure they were providing all the information required.

Not everyone is satisfied by the increased restrictions set forth by FDA regarding antibiotics for food animals provided in feed and/or water.

A number of nonprofits filed a citizen petition under section 512(e) of the Food, Drug, and Cosmetic Act, 21 U.S.C. Section 360b(e), “to request that the Commissioner of Food and Drugs withdraw approval of the use of medically important antibiotics in livestock and poultry for disease-prevention or growth-promotion purposes.”

These nonprofits want to prohibit the use of critically important antibiotics that prevent disease in food animals.  Such use is imperative to continue to protect food animals from preventable illness.