New York recently amended laws governing pet dealers by:

(1) exempting incorporated animal shelters, rescue organizations or other non-profit entities that transport or offer animals for adoption (a/k/a “sale”) from the statutory definition of “pet dealer,” and (2) requiring those entities to register with the Department of Agriculture and Markets and provide certain information on an annual basis.  See S5599.

The information that must be reported to the State includes:

The number of animal taken in, adopted, placed into permanent or temporary homes, or otherwise transferred into, out of, or within the state by the applicant during the prior calendar year. S5599 at S. 408 (G).

At first glance, these amendments start the long-needed steps to regulate sales of pets through the largely unregulated retail rescue channels, but the following are some concerns about the law (some of which may have been preexisting):

THE COMMISSIONER MAY DENY ANY APPLICATION FOR REGISTRATION AS SET FORTH IN SUBDIVISIONS ONE AND TWO OF THIS SECTION OR REVOKE ANY REGISTRATION ALREADY GRANTED, AFTER WRITTEN NOTICE TO THE APPLICANT OR REGISTRANT AND AN OPPORTUNITY TO BE HEARD, WHEN:

THE APPLICANT OR REGISTRANT, OR AN OFFICER OR DIRECTOR HAS BEEN CONVICTED OF A MISDEMEANOR OR FELONY ANIMAL CRUELTY OFFENSE BY A COURT OF THE UNITED STATES OR ANY STATE OR TERRITORY THEREOF, WITHOUT SUBSEQUENT PARDON BY THE GOVERNOR OR OTHER APPROPRIATE AUTHORITY OF THE STATE OR JURISDICTION IN WHICH SUCH CONVICTION OCCURRED, OR RECEIPT OF A CERTIFICATE OF RELIEF FROM DISABILITIES OR A CERTIFICATE OF GOOD CONDUCT PURSUANT TO ARTICLE TWENTY-THREE OF THE CORRECTION LAW  Section 4 (C).

Similar to animal abuse registries, this section bans individuals from working with animals forever, for potentially minor infractions.  More thought should be placed on the type of conduct for which this type of lifetime punishment is warranted.  As I have discussed before, historically, many accused of animal cruelty offenses, even if innocent, have opted to plead guilty to minor offenses since the cost of defense far outweighs the fines.  It is unclear, whether this law is retrospective or prospective regarding such convictions.

Another area of concern is the exclusion of shelters and rescues from warranties pet stores must provide when selling pets to provide owners recourse if the pet develops clinical signs of infectious diseases within 14 days of sale.  Since animals sold through shelter and rescue channels have a greater likelihood of exposure to infectious diseases, veterinarians should be required to examine, treat and inform new owners about the results of those examinations at the time of adoption/sale.  The state should consider requiring pets sold through these channels to be held for a reasonable period of time before sale to increase the chance that clinical signs of infectious disease can be diagnosed before sale.  Owners should be informed about any congenital defects that are evident to the veterinarian before sale.  Notifying new owners about infectious disease and congenital defects is critical to ensure the pet will be placed in a home where owners can afford to treat these often expensive conditions to treat.

Another concern is based on a comment from the sponsor, Senator Boyle, in his press release―the purpose of the bill is to eliminate the:

Pet Dealer License exemption, which has sometimes been exploited by former pet dealers and animal resellers who realized they could successfully avoid state oversight by obtaining a not-for-profit status.

Hopefully this comment is not directed toward pet stores that have been bullied into ceasing sales of professionally-bred dogs and are instead providing pets obtained from shelters and rescue organizations.  These stores should be able to register as non-profits, like the other entities providing similar pets.

Of course a huge obstacle to such pet stores trying to convert to the “humane model” espoused by animal rights organizations (despite the lack of evidence that this model actually works) is the requirement in New York for any animal non-profit to be approved by the ASPCA, one of the most profitable non-profit animal rights organizations in the country.

It would seem that there is an inherent conflict if the ASPCA with a decades-old campaign against pet stores that sell puppies, is in a position to approve or deny the non-profit application of a pet store converting to non-profit status.

Hopefully, the NY State Department of Agriculture & Markets can address some of these concerns in regulations.

 

California AB485 will criminalize what has been considered lawful interstate commerce since at least 1966, when Congress first passed the Animal Welfare Act, 7. U.S.C. §2131 et seq.

“The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order – (1) to insure that animals intended . . . for use as pets are provided humane care and treatment . . .”  7 U.S.C. §2131 (Congressional statement of policy).

Pet stores in California will no longer be able to purchase and sell pets from USDA licensed and exempts breeders and dealers of dogs, cats and rabbits if AB485 becomes law.  Instead, pet store would only be able to source from the highly unregulated animal shelters and rescue organizations that distribute pets from random sources, often imported from overseas, and often infected or infested with diseases or pests that unwitting consumers have to contend with and pay for.

Pet stores that have provided a historic and lawful service matching up pet-seeking owners with professionally and purposely-bred pets with the physical and behavioral characteristics perspective owners desire, would be considered criminals under the new California law, upon adoption.

Unfortunately, this is no longer a novel attempt by nonprofit animal rights organizations’ decades-long campaign to eliminate professional, purposeful dog breeding, along with animal ownership (replaced with guardianship) and a host of other animal rights’ agenda.

The question is, when will consumers realize that their choices in pet purchases have been supplanted by activists who believe that pet breeding (and the intentional breeding of any species) is immoral and should be outlawed.

The public, clamoring for the 9,000,000 dogs needed each year for pet-owners seeking new pets, will soon have their choices severely limited.

What a sad state of affairs for pets and people alike and as we have repeatedly alleged, unconstitutional.

I previously described concerns about S3019’s impact to veterinarians.

There are additional concerns about the impact of this bill to animal shelters and NJ taxpayers.  And, it is inexplicable why S3019 exempts animal rescue organizations from provisions governing shelters since these unregulated organizations are becoming the primary way people are obtaining pets—through retail rescue channels.  See The Phenomenon called “Retail Rescue.”

Animal shelters are under increasing pressure from the no-kill movement to decrease or eliminate the number of animals they euthanize.  This creates a near impossibility for those shelters that provide for the euthanasia of pets as a service to pet owners who rely on shelters for that very purpose.  Additionally, some animals are unfortunately not suitable for adoption because of behavioral or medical disorders.  For these animals and the people who may unwittingly adopt them, euthanasia may be the best option.

Animal rescue organizations do not have to comply with any provisions that would govern shelters if S3019 becomes law.  They simply have to register with the Department of Health.  Certainly animals housed in any facility should be provided with proper care, but with the draconian and costly provisions in S3019, it is not clear why any private brick and mortar shelter would continue to exist.

Unlike “regulated animal facilities,” animal rescue organizations would not have to: (1) employ a State-certified director, (2) comply with strict feeding, housing, exercise, and medical care requirements, (3) maintain records of any sort, or (4) be subject to a civil action in Superior or municipal court brought by any person for failure to comply with this law.

Other concerns about the bill include, but are not limited to:

  1. The Department of Health would have to draft regulations regarding the recognition of cat and dog breeds by shelter staff.  However, studies have proven that “regardless of profession, visual identification of the breeds of dogs with unknown heritage is poor.”  See K.C. Croy, et al., What kind or dog is that? Accuracy of dog breed assessment by canine stakeholders.   Published by College of Veterinary Medicine, University of Florida, Gainesville.  Hopefully, DOH’s proposed regulations, if drafted, will include the deficiencies related to the visual identification of randomly-sourced pets.
  2. The cost of enforcing this bill will be significant.
    1. The law would require at least three inspections of regulated animal facilities by specially trained inspectors each year. While training is certainly a welcome and important advance, the cost would be considerable.
    2. The bill would require the Board of Veterinary Medicine, the Department of Health and Rutgers to develop certain training and certification programs that would be costly to develop and implement.
  3. The law would limit euthanasia of animals to veterinarians or a veterinary technician with specific training and certification in euthanasia. The law would require that the Board of Veterinary Medicine, in consultation with the Department of Health, establish training and certification, but it is unclear how this can proceed without requiring the licensure of veterinary technicians, something the legislature has not provided for.
  4. The law would encourage shelters to provide for “temporary” housing, even with other animals, instead of performing euthanasia.  While decreasing euthanasia is laudable, shelters should not be encouraged to violate DOH’s sanitary regulations adopted to decrease disease spread and behavioral incompatibilities that prohibit such housing.

S3019, in addition to its well-meaning intent, would have some positive effects, such as increased tracking and reporting of the movement of animals into and between regulated animal facilities.  Of course, this data should include movement through animal rescue organizations.

The provisions of S3019 that would help ensure that any adoptable animals are not unnecessarily euthanized is clearly laudable.  However, unless the State prohibits the unregulated importation of animals from other states and countries to rescues and shelters through retail rescue channels, animals that are unsuitable as pets will continue to reside in shelters and some will be euthanized.

Senator Linda R. Greenstein introduced S3019 on Feb. 27, 2017, a bill that would establish “additional requirements for operation and oversight of animal shelters, pounds, kennels operating as shelters or pounds, and veterinary holding facilities.”

The bill creates liabilities for veterinarians who provide certain critical services to municipalities.  If enacted, it is unclear why veterinarians would expose themselves to such liability.  Therefore, critical services currently provided by these veterinarians to communities could place both people and animals at unnecessary risk.

The following provisions are of greatest concern:

The bill defines “veterinary holding facilities” as “any facility owned or operated by a veterinarian, veterinary hospital, clinic, veterinary boarding facility, or similar facility that houses stray, surrendered, or otherwise impounded animals as a boarding agent or holding facility for an animal control provider, the New Jersey Society for the Prevention of Cruelty to Animals or any of its humane law enforcement officers or agents, a county society for the prevention of cruelty to animals or any of its humane law enforcement officers or agents, or local law enforcement.”

If an animal control officer, an agent of the NJSPCA or a country SPCA, or a professional law enforcement officer brings an animal in need of veterinary medical care to a veterinarian for emergency care, that veterinarian is required to provide such care.  See N.J.A.C. 13:44-4.7.  If part of that care requires short or long-term housing for that animal, the veterinarian could be defined as a “veterinary holding facility” which then qualifies that facility as an “animal holding facility.”  S3019 would require each animal holding facility, including a veterinary holding facility to:

  1. provide specific vaccinations to each animal in the facility;*
  2. apply for a pound license from the municipality in which it operates;
  3. employ a properly trained and certified director of the facility; and
  4. establish specific hours of operation during which time they must be open to the public.

This bill would expose veterinarians to liability for serving their communities by providing care to abandoned, injured, and rescued animals they treat on an emergent basis.  Many of these provisions are not appropriate and are unnecessary for veterinary facilities which are governed by statutes and regulations enforced by the State Board of Veterinary Medicine Examiners which “supervise[s] the practice of veterinary medicine, surgery and dentistry; ensure[s] that veterinary medicine is performed in a manner consistent with acceptable medical and ethical standards; and adjudicate[s] consumer complaints against licensees.”

These provisions of S3019, while well-meaning, should be amended.

*While vaccination generally should be required in animal facilities, it is unwise to require specific vaccines in statutes or regulations, since recommendations change over time, as informed by advances in veterinary medicine.  Instead, laws should incorporate by reference recommendations from appropriate veterinary associations such as the American Animal Hospital Association.

New Jersey Bill S2848 does far more than described in the official bill statement which states that the bill requires:

1) all cats and dogs brought into the State from other jurisdictions to have an animal history and health certificate certified by a licensed veterinarian providing the information about the cat or dog specified in subsection a. of section 1 of the bill; and

2) animal rescue organizations, shelters, and pounds to accept the return of a cat or dog received from the facility for up to one year 10 after the receipt of the animal from the facility.

The bill authorizes shelters, pounds, and animal rescue organizations to charge a fee of up to $100 for such a return.

The provisions in S2848 that miss the mark include the following:

  1. A shelter, pound, or animal rescue organization must accept the return of any cat or dog adopted and may charge the person returning the cat or dog a fee of up to $100.00, but a pet store is required to accept the return of a cat or dog for any reason within one year of the date of purchase without the ability to charge the person returning that animal any fee. These provisions clearly unreasonably favor shelters and rescues and importantly do not place the appropriate responsibility on the adopter or pet owner before deciding to bring a pet into a home.  While there should be provisions for returns under certain conditions, the bill as proposed does not include reasonable provisions.
  2. The bill unrealistically and unreasonably extends the pet purchase time frame for returns to pet stores for pets diagnosed with infectious, contagious diseases from 14 days to 1 year after sale, and for pets diagnosed with congenital, hereditary conditions or a sickness [or death] brought on by a congenital or hereditary cause or condition from 180 days to 1 year after sale. These provisions ignore sound science.  The provisions limiting returns resulting from infectious diseases to those diagnosed within 14 days after sale were based on typical incubation periods for such diseases.  Infectious diseases that occur outside of those time periods are typically unrelated to the care provided by the pet store or their sources, who should not remain liable for situations outside of their control.  Similar concerns arise from the extension of pet store liability for congenital or hereditary conditions that are influenced by the pet’s environment, and not the responsibility of the pet store or its sources.
  3. The bill properly mandates registration of animal rescue organizations and requires reporting of some important information about the number of adopted animals. However, information about the source of animals, whether from other states or countries, should also be required.  The myth of the local overpopulation of dogs in New Jersey can only be exposed when the numbers of dogs imported into the State for adoption is required to be reported.

This bill appears to be an attempt to require reporting of certain information about the source of pets provided to the public, but it requires significant amendments to ensure that the law actually provides for the health of pets, consumer protection, and the sustainability of properly run pet stores, animal shelters and animal rescue organizations.

New Jersey Senate Bill No. 2847,  introduced on December 12, 2016 would make some important beneficial changes to the laws governing animal rescue organizations and shelters in New Jersey, but would also require the unnecessary and harmful premature spay and neuter of cats and dogs before sale from pet shops, kennels, shelters, pounds, and animal rescue organizations.

Considering the positive amendments first, the bill would require registration of all animal rescue organizations with the State Department of Health.  Registration is currently voluntary.

Pursuant to Public Law 2011, Chapter 142, the New Jersey Department of Health shall establish a voluntary registry of animal rescue organizations and their facilities.

As of November 3, 2016 there were 70 in-state and out-of-state animal rescue organizations voluntarily registered in New Jersey, as listed on the DOH website.

Registration and oversight of animal rescue organizations is sorely needed.

Another positive amendment in S2847 is the ability of shelters or pounds to euthanize an animal surrendered by its owner before the current seven-day waiting period, and the ability to euthanize a stray or an animal surrendered by someone other its owner if a veterinarian determines “that the animal is in extreme pain and cannot recover from the illness or condition that is causing the pain.”

A veterinarian should make this determination for animals surrendered by their owners or other individuals for at least 2 reasons: (1) proper animal ownership can be difficult to determine; and (2) the irreversible decision whether or not to euthanize an owned pet should be decided by a veterinarian, trained and licensed to make such determinations.

As for the requirement to spay or neuter a dog or cat before sale, so long as the animal is merely two months old, for reasons previously discussed, this premature, unnecessary elective surgery at so young an age exposes each animal to short and long-term injury and harm.  Increasingly, scientific evidence proves that the early removal of endocrine glands, such as testes and ovaries, increases the incidence of certain metabolic disorders, including some forms of cancer, and can decrease the lifespan of certain pets.  The decision about when to spay or neuter an individual pet should be determined by the owner in consultation with their veterinarian, after learning about the risks and benefits of such procedures.  Veterinarians are increasingly advising dog owners to wait until at least after the pet’s first reproductive cycle to sterilize their dog.  The requirement remains with each owner to ensure that their pet is not irresponsibly bred until it is spayed or neutered.

Finally, the requirement for shelters and pounds to pay owners up to $250.00 for any pet released before it is spayed or neutered could have a devastating impact on these organizations who are already struggling to compete with animal rescue organizations.

If amended to address these concerns, S2847 could be supportable.

 

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.