Pet store sourcing bans

Arizona bill HB 2329,  a bill titled “pet dealers: purchaser remedies” includes a repeal of Section 44-1799.11 of the Arizona Revised Statutes in the last line of the bill.  That section has nothing to do with purchaser remedies but everything to do with the regulation of pet dealers in Arizona.  Specifically, 44-1799.11 states

The regulation of pet dealers is a matter of statewide concern. A city, town or county may enact or enforce an ordinance to enforce section 44-1799.10 against a pet store or pet dealer. Any local law, rule, regulation or ordinance that imposes requirements on pet dealers that exceed the requirements of section 44-1799.10 or penalties prescribed by section 44-1799.08 is preempted. Any local law, rule, regulation or ordinance may not directly or indirectly prohibit or be applied to prohibit the sale of dogs or cats by a pet store or pet dealer, expressly or in effect, based on the source from which the animal is obtained if obtained in compliance with section 44-1799.10.

The statute was enacted following the adoption of an ordinance in Phoenix which banned pet stores from selling dogs or cats purchased from commercial breeders.  See Puppies ‘N Love v. City of Phoenix, 283 F.Supp.3d 815 (D. Ariz. 2017), appeal dismissed 2017 WL 7726037.  The “intervening Arizona state legislation that allowed pet stores to sell dogs and cats obtained from commercial breeders that met certain requirements, which preempted a charter city ordinance that banned pet stores from selling dogs or cats supplied by commercial breeders, required a vacatur of summary judgment granted in favor of city and nonprofit group on the constitutionality and validity of the ordinance, despite claims that pet store operator persuaded Arizona to pass the statute, that operator was required to show equitable entitlement to vacatur, and that public interest favored a denial of vacatur.”

There is nothing in HB 2329 revealing the repeal, other than the one-liner at the end of the bill.  Unless someone knows statutory citations, there would be no public notice that the repeal of statutory preemption was a major objective of this bill .  Therefore, those who would be impacted but such a repeal are now on notice.

There are also serious concerns about the proposed substantive amendments related to purchaser remedies:

  1. The bill would permit a purchaser to show by a preponderance of the evidence that an animal had an illness, injury, defect or congenital or hereditary condition when the purchase took possession of the animal.  This amendment is unnecessary because the law already provides for a purchaser’s remedies upon the presentation of a veterinarian’s written opinion of an illness, injury or defect to the pet store within a prescribed number of days.  With limited exceptions Arizona prohibits anyone except a licensed veterinarian from diagnosing or prognosticating “any animal condition, disease, deformity, defect, wound or injury . . .”  Ariz. Rev. Stat. Ann. § 32-2231.

Additionally, a “preponderance of the evidence” standard is a legal standard, and one which a pet store would not be able to determine. Therefore this additional provision is unnecessary and would create ambiguities that would not benefit anyone.

  1. Several amendments eliminate requirements that provide objective evidence of proof of diagnosed illness or conditions. An amendment to Section B (6) would make “findings of the examination or necropsy, including laboratory results or copies of laboratory reports” optional.  Veterinary medicine is a sophisticated medical practice wherein diagnosis of infectious diseases or congenital defects are confirmed by laboratory testing, including necropsy results.  To permit an exclusion of such objective support of a clinical diagnosis is neither sound science, nor good public policy.
  2. The bill would permit the purchaser to receive reimbursement for reasonable veterinary fees for diagnosis and treatment without restriction instead of the existing limit of “an amount not more than the original purchase price of the animal.” The cost of medical treatment varies considerably between practices, and can grossly exceed the original purchase price of the animal.  Other states limit reimbursements to two times the purchase price.  See, e.g., N.J.S.A. 56:8-95 (i)(4).
  3. The bill would permit a purchaser to receive reimbursement for the death of a pet within sixty days of the time of purchase. The current limitation is fifteen days.  The bill would permit such reimbursement in the absence of a necropsy.  The incubation period of most infectious diseases is less than fifteen days.  While complications during treatment could result in death after fifteen days, many other variables would have to be considered, making it difficult or impossible to determine a cause of death without a necropsy.  Therefore, objective laboratory diagnostic tests, including necropsies, should be required, particularly if extending the time period for reimbursement as proposed herein.

Finally, since the vast majority of pets are currently obtained from animal rescue organizations or animal shelters, similar remedies should be required of these facilities.

On Wednesday, November 15, 2017, Las Vegas City Council voted to enact “Bill No. 2017-40 – which repeals a formerly adopted ordinance which prohibits pet shops from selling or disposing of dogs, cats or potbellied pigs other than those obtained from an animal care facility or nonprofit animal rescue organization.”

As both the American Kennel Club (AKC) and Pet Industry Joint Advisory Council (PIJAC) stated in written testimony, the misrepresentations about the puppies sold at pet stores harms puppies, breeders, pet stores and consumers by removing a highly regulated source of healthy puppies for people desiring a lifelong pet with specific behavioral and physical characteristics they prefer for their families.

As PIJAC explained:

Even as we have worked to raise standards of care, PIJAC has battled misconceptions about the quality of pet store animals and the sources of such animals. The unsubstantiated assertion that pet store animals generally come from substandard breeding facilities is commonly used as a smoke screen to obscure the fact that the overwhelming majority of pet owners who choose to purchase from pet stores bring home a happy, healthy pet and remain highly satisfied with their pet store experience.

The reality is that almost all pet store puppies originate from USDA licensed breeders who are regularly inspected and found to comply with appropriate care standards. By contrast, many of the dogs and cats from other sources, including rogue Internet operators, private sales, shelters and rescues, did not come from licensed breeders.

AKC stated:

An important part of ensuring the success of a pet with a new owner is to ensure that it is an appropriate fit with the owner’s lifestyle. Treasured pets may be obtained from a variety of sources, including breeders, pet stores, rescues, and local shelters.

Under the current law, families in Las Vegas have lost an important source for choosing a quality pet that is the best fit for their lifestyle and circumstances.

There is no credible evidence that puppies purchased from pet stores originate from “puppy mills,” large commercial substandard breeding facilities, or that pet store puppies contribute to shelter populations-misrepresentations that form the bases for pet store sourcing bans.

Las Vegas City Council repealed the pet store sourcing ban. Hopefully, other communities will follow suit.

On a related note, Circuit Judge Hamilton dissented from the majority opinion in a constitutional challenge to a pet store ban in Chicago (Park Pet Shop, Inc. v. City of Chicago, 872 F. 3d 495 (7th Cir. 2017) “[o]n two points critical to the federal Commerce Clause claim.”

First, the Supreme Court itself has not yet confined the balancing test under Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), as narrowly as my colleagues suggest. The majority writes that Pike balancing comes into play ‘only when the law discriminates against interstate commerce in practical application.’ Ante at 502 (emphasis in original), citing National Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1131 (7th Cir. 1995) . . . . The majority would apply Pike only when the challenged law gives ‘local firms any competitive advantage over those located elsewhere’ . . . The Supreme Court’s more recent discussions of Pike, since we decided National Paint in 1995, are difficult to reconcile with this approach. For example, the Court has explained that federal courts ‘generally leave the courtroom door open to plaintiffs invoking the rule in Pike, that even nondiscriminatory burdens on commerce may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice.’

 

Judge Hamilton also found that “the majority errs by applying a stringent version of Iqbal and Twombly to find that plaintiffs have not plausibly alleged sufficiently burdensome effects on interstate commerce.”

 

Judge Hamilton found that the complaint had sufficiently alleged plausible impacts that the pet store sourcing ban would result in the alleged harms, concluding,

I don’t know whether the plaintiffs in this case could ultimately meet the demands of the Pike balancing test. They should be permitted to try, though, particularly now that the ordinance has taken effect and evidence of actual effects should be available. I would reverse the dismissal for failure to state a claim and remand for further proceedings.