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.