Full Title Name:  Detailed Discussion of Retail Pet Stores

I. Introduction

According to the National Pet Owners Survey of 2005/2006, “63% of households own a pet, which equates to 69.1 million homes.” [1] In 2005, consumers in the U.S. market spent $1.7 billion dollars on live animal purchases and it is estimated that $1.8 billion dollars will be spent in 2006. [2] It was estimated that there were 358 million pets in America during the 2005/2006 survey. [3] It is quite obvious that pets constitute a large presence in American households and are important members of many families. The following chart illustrates the types of animals most commonly kept as pets in the U.S. [4]

While some dogs, cats and small animals come from rescue organizations and shelters, the majority of the estimated 358 million pet animals come from retail pet stores. Many people love and care for their pets, but very few think about the life their pet experienced before being brought home. With such a large number of animals being housed and sold at retail pet stores, many welfare issues exist, including the availability of veterinary care, food and water, proper housing, and proper sanitation. This paper examines the laws pertaining to the welfare of animals in retail pet stores at the federal and state level and comments on the welfare issues that still need to be addressed.                 

II. Federal Law

Currently, there is no federal law which covers all retail pet stores. The Animal Welfare Act (“AWA”) is a federal law which specifies who may possess and sell certain types of animals and the minimum standards of care for these regulated animals. The AWA does not cover birds, rats, mice, and cold-blooded animals such as reptiles, fish, and amphibians. [5] Furthermore, the AWA specifically excludes retail pet stores from its purview of protection. [6] The Code of Federal Regulations defines and interprets a retail pet store as “any outlet where only the following animals are sold or offered for sale, at retail, for use as pets: dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, and coldblooded species.” [7] There are also a number of exceptions to this definition [8]

The definition of retail pet store is broadly interpreted and applied. In 1997, the Doris Day Animal League petitioned the Secretary of Agriculture to modify the definition of “retail pet store” to apply only to non-residential businesses. As the definition stood, it applied to “any outlet,” whether residential or non-residential. This modification would have the effect of preventing the definition from applying to breeders who sell dogs from their residences. However, the Secretary of Agriculture refused to modify the definition and the appellate court in Doris Day v. Veneman upheld the Secretary’s decision. [9] Therefore, persons who breed and sell dogs from their homes are considered retail pet stores and are exempt from the welfare regulations of the AWA.

While there is a blanket exception for retail pet stores, there are three ways a retail pet store can become regulated by the AWA . The first two ways involve becoming licensed as a dealer. A retail pet store will be licensed as a dealer under the AWA if the store is selling any “wild or exotic” regulated animals. [10] Remember that only certain types of animals are protected under the AWA (i.e. warmblooded animals, excluding birds, rats and mice). Therefore, a retail pet store would not become a dealer if it was selling “wild or exotic” reptiles or birds because these animals are always exempt from AWA regulations. If a retail pet store was selling a tiger from Asia, for example, that store would become a dealer under the AWA because a tiger is a warm-blooded animal falling under AWA regulation and it is exotic according to the Code of Federal Regulations. Exotic animals are defined as animals that are not native to the U.S., such as lions, tigers, and elephants.” [11] Domestically bred exotic animals are also considered exotic animals for AWA licensing purposes. [12] Wild animals are those animals found in the wild in the U.S., such as deer, foxes, and wolves.” [13]

Further, a retail pet store will also be considered a dealer if that store “sells any animals to a research facility, an exhibitor, or a dealer.” [13] However , if that retail pet store “derives less than a substantial portion of his income (as determined by the Secretary) from the breeding and raising of dogs or cats on his own premises and sells any such dog or cat to a dealer or research facility [he] shall not be required to obtain a license as a dealer or exhibitor under this Act.” [15] The third way a retail pet store can become regulated under the AWA is by becoming licensed as an exhibitor. This would be required, for example, if the pet store was planning to take the animals outside the store for teaching purposes or set up a pet display in a mall.

If a retail pet store falls into the category of dealer or exhibitor, it will be licensed and regulated by the AWA. [16] The Secretary of Agriculture is in charge of promulgating AWA standards which are supposed to be followed by AWA regulated entities. These requirements pertain to the “handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species where the Secretary finds necessary for humane handling, care, or treatment of animals.” [17]       

The Secretary of Agriculture delegates the enforcement of AWA regulations and inspections to the Animal Plant Health Inspection Service (APHIS). [18] APHIS supports the Animal Care program which conducts investigations of regulated facilities. [19] According to an Animal Welfare Report, there was a total of 7,348 AWA regulated facilities in 1995. [20]

As of June 2005, there were roughly 70 Animal Care inspectors who were in charge of inspecting all regulated facilities. [21] If the number of regulated facilities has stayed the same or increased since 1995, a ratio of approximately one Animal Care Inspector for every one hundred regulated facilities or more exists. This obviously poses an enforcement problem because even if a retail pet store becomes a dealer or an exhibitor under the AWA, there will be limited enforcement given the number of regulated facilities versus the number of Animal Care Inspectors. Yet, the percentage of retail pet stores that actually fall under AWA regulations based on the above information is so minuscule compared to the thousands of retail pet store in operation in the U.S. It is clear that the AWA was not designed to address animal welfare in retail pet stores. Other federal laws, such as the Endangered Species Act and the Lacey Act, are also circumscribed in their application to retail pet stores.

The Endangered Species Act (“ESA”) makes it unlawful to “sell or offer for sale in interstate or foreign commerce any such [endangered] species.” [22] Therefore, the ESA would only apply to retail pet stores selling endangered species- an unlikely event. The Lacey Act , another federal law, was designed to combat illegally taken fish, wildlife and plants. It prohibits the sale of any fish or wildlife that were taken or sold in violation of any U.S. laws and regulations. [23] This Act basically creates a separate cause of action for the taking or selling of animals that were taken in violation of U.S. law. Since retail pet stores do not usually offer endangered species or other animals protected by the U.S. for sale, these federal laws are also very limited in scope and application to retail pet stores.  

III. State Law

Since the overwhelming majority of retail pet stores are exempt from federal law, the primary authority on retail pet store regulation is state law. There are fifteen states that do not have any laws regulating retail pet stores. [24] Unless a pet store in one of those fifteen states falls within the small purview of federal laws, the welfare of the animals sold in these states is unregulated. The only other recourse for animal welfare in those fifteen states would be the state cruelty laws. For example, Alabama does not regulate retail pet stores. Yet, if a retail pet store employee in Alabama “intentionally or recklessly subjects any animal to cruel mistreatment or subjects any animal in his custody to cruel neglect” and is found guilty of such an act, she would be charged with a Class B Misdemeanor. State cruelty laws range in their scope- some states merely prohibit “cruel mistreatment,” which is not statutorily defined, while some states define cruelty to include “failing to provide adequate food, drink, etc.”  

The majority of the country, specifically twenty-seven states and D.C., have laws mandating certain standards in retail pet stores. There are also eight states which do regulate some aspects of retail pet stores, but do not regulate the care and treatment of animals. [25] Instead, these states may require a store to be licensed, provide “lemon laws” which protect customers who purchase sick animals, or have laws guarding against the sale of unweaned animals. Information about “lemon laws” regarding pet sales can be found at http://www.animallaw.info/articles/dduspetsales.htm            

There are twenty-four states and D.C. which have laws mandating that certain animals must be weaned before they can be sold. [26] Fifteen of these states require dogs to be weaned before being sold, and thirteen of these states also impose the same requirement for cats. [27] The definition of a weaned dog or cat varies, but it usually means the dog or cat is at least eight weeks old, or can take nourishment by means other than nursing. Some states also have laws regarding chickens, ducks, rabbits, goslings, and fowl. In a few states, like New Hampshire, there is an exception for selling unweaned chickens, ducks, goslings and rabbits if they are sold in a group of twelve or more. [28]

The laws concerning the welfare of animals in retail pet stores vary. Very few states actually address all categories of veterinary care, food and water, proper sanitation and housing. If a state does not have a specific retail pet store provision which requires, for example, adequate food and water, there may be a provision in the cruelty code which addresses the withholding of food and water. These cruelty codes would be applicable to retail pet stores and most of the general public.

Less than half of all states mandate that food and water be provided to animals in retail pet stores. Only twenty states have such provisions. [29] The statutes usually employ terms such as “adequate nutrition.” For example, Missouri defines adequate food and requires it to be given “at suitable intervals of not more than twelve hours, unless the dietary requirements of the species require a longer interval, of a quantity of wholesome foodstuff, suitable for the species and age, sufficient to maintain a reasonable level of nutrition in each animal, all of which foodstuff is served in a safe receptacle, dish, or container.” [30] North Carolina requires that adequate feed be given at intervals not exceeding twenty-four hours. [31] Some states, however, do not define “adequate nutrition.” Furthermore, eight of these states only require that food and water is available to dogs or cats, or both, thereby excluding the other animals from being assured consistent feeding and watering. [32]

Twenty states plus D.C. have sanitation requirements for animal housing in retail pet stores. [33] Proper sanitation is important not only for the health of the animals, but also for the health of employees and consumers. Most of the statutes state that cages must be maintained in a sanitary condition. Yet, most states do not even define “sanitary condition.” Such an undefined term is very subjective and open to broad interpretation. Further, some states actually limit the application of the sanitation requirements to certain animals. Arizona and Michigan, for example, only apply the sanitation requirements to dogs and cats. In Maryland, the requirement only applies to birds.

Veterinary care is another area which less than half of all states regulate. Sixteen states mandate that veterinary care be provided to animals in retail pet stores. [34] These requirements range in the care that is required. Several states require that veterinary exam certificates accompany the animal when she or he is purchased. Minnesota requires a veterinary exam before an animal is sold, which means pet stores in that state are under no legal obligation to provide veterinary care for a sick animal that is not going to be immediately purchased. [35] On the other hand, Arizona requires veterinary exams initially and as needed. [36] In Maine, animals that are determined to be “unfit for sale” can either be isolated and treated, or euthanized. [37] The same is true for animals in New Hampshire who are sick, injured, lame or blind. [38] While it is a sad reality, animals sold in pet stores are essentially commodities. In some cases the cost of veterinary care can exceed the commercial value of an animal, which is reflected by many of the above laws.  

In twenty-one states and D.C., there are laws mandating that adequate housing be provided to animals in retail pet stores [39] . The definition of adequate housing varies from state to state. In some states such as North Carolina and Rhode Island, adequate housing is undefined. In other states, adequate housing is defined as providing enough space for the animal to turn around. Colorado’s law is unique because it addresses space requirements that allow “necessary socialization with cage mates.” [40] In seven of these states, the law only applies to dogs or dogs and cats. [41] In Florida, the adequate housing law applies only to birds. Furthermore, adequate housing laws do not address the lack of animal enrichment in retail pet stores. An example of enrichment for a bird would include a perch, mirrors or toys, or a companion bird. In many cases animals may languish for many weeks or even years before being bought. Lack of enrichment is a big concern because it often results in the psychological distress of an animal, which is evidenced by repetitious behavior such as pacing. [42]

To further prove that the regulation of retail pet stores is lax, less than half of all states require pet stores to operate under a license. Only twenty states plus D.C. require pet stores to be licensed. [43] A business owner must apply for the license which is usually granted by the state’s Department of Agriculture. Pet store license applications often inquire about the proposed methods of sanitization, animal housing, waste management plans, and whether veterinary care will be provided to the animals. The cost of the license varies from state to state. A license costs $50.00 in Iowa and $300.00 in Colorado. Before a license will be issued, an inspection of the premises will be conducted. If the premises are in compliance with state law, a license will be issued.

The source of animals sold in retail pet stores is also a grave concern. The Humane Society of the United States (“HSUS”) is concerned that puppies and dogs sold at retail pet stores actually come from puppy mills rather than reputable breeders. [44] Puppy mills are dog breeding operations that aim to maximize profits at the expense of animal welfare. The HSUS has documented many problems with puppy mills, including “overbreeding, inbreeding, minimal veterinary care, poor quality of food and shelter, lack of socialization with humans, overcrowded cages, and the killing of unwanted animals.” [45] Not only does the problem of puppy mills pose numerous welfare issues for the breeding dogs, it also poses risks to consumers who may be purchasing sick dogs or dogs affected with life threatening genetic disorders caused by inbreeding. Often retail pet stores are serving as repositories for animals reared in these horrendous conditions.  

It is clear that there are many gaps in the protection of animals living in retail pet stores. Some states do not even regulate the sale of animals. Other states have welfare requirements such as “adequate housing,” but leave the term undefined. For the states that do have statutes addressing areas of veterinary care, food and water, housing, and sanitation, enforcement and penalties are big concerns.

To enforce one of the laws regarding welfare in retail pet stores, a concerned customer would have to call the local humane society or animal control officer to investigate the situation. If an investigation is made, the charge is actually prosecuted, and if the pet store is found guilty, a very light fine would be imposed. For example, in Vermont, if a licensed pet shop fails to provide adequate food or water, the fine cannot exceed five hundred dollars. [46] In Rhode Island, the failure of a pet shop to provide adequate food and water cannot exceed one hundred dollars per animal. Since these penalties resemble merely a “slap on the wrist,” animal cruelty charges are a low priority and few efforts are made to actually enforce the laws. [47]

To illustrate the lack of enforcement of retail pet store laws, the Animal Protection Institute conducted an undercover investigation of 64 retail pet stores in California. The investigation uncovered many cases of animal neglect and abuse in blatant violation of California statutes. [48] Not only were the existing laws not being enforced, but the investigators saw a real need for improvement in the law. Improvements in the law would include defining vague requirements, such as “adequate food.” Further, states that have not adopted minimal standards need to do so. Laws directed at the source of these animals could also help reduce the number raised in puppy mill conditions. However, as with any business transaction, the root of the problem lies equally with demand as it does with supply.       

IV. What Can be Done to Help

If consumers are truly concerned about the welfare of animals in the current retail system, they must demand either a cease in the sale of pets at retail stores or a boycott in those stores that exhibit unscrupulous practices. Further, inhumane conditions in pet stores will never be addressed unless concerned customers are willing to report such conditions to local animal control officers. The bottom line is that animals are seen as commodities in the retail pet industry. When profits are at stake, it will always be hard to assure animals are given the care they deserve.    

[3] Id.

[4] Id.

[5] 7 U.S.C. § 2132 (2000).

[6] Id.

[7] 9 C.F.R. §1.1 (2004).  

[8] The following are exceptions to the definition of retail pet store:

(1) Establishments or persons who deal in dogs used for hunting, security, or breeding purposes; (2) Establishments or persons exhibiting, selling, or offering to exhibit or sell any wild or exotic or other nonpet species of warmblooded animals (except birds), such as skunks, raccoons, nonhuman primates, squirrels, ocelots, foxes, coyotes, etc.; (3) Any establishment or person selling warmblooded animals (except birds, and laboratory rats and mice) for research or exhibition purposes; and (4) Any establishment wholesaling any animals (except birds, rats and mice). (5) Any establishment exhibiting pet animals in a room that is separate from or adjacent to the retail pet store, or in an outside area, or anywhere off the retail pet store premises. Id.

[9] Doris Day Animal League v. Veneman , 315 F.3d 297 (D.C. Cir. 2003).

[10] USDA, Licensing and Registration Under the Animal Welfare Act: Guidelines for D ealers, Exhibitors, Transporters, and Researchers , May, 2001,

  http://www.aphis.usda.gov/lpa/pubs/l&rawa.pdf .

[11] “This term specifically includes animals such as, but not limited to, lions, tigers, leopards, elephants, camels, antelope, anteaters, kangaroos, and water buffalo, and species of foreign domestic cattle, such as Ankole, Gayal, and Yak.” C.F.R., supra note 7 .

[12] USDA , supra note 10.

[13] “any animal which is now or historically has been found in the wild, or in the wild state, within the boundaries of the United States, its territories, or possessions. This term includes, but is not limited to, animals such as: Deer, skunk, opossum, raccoon, mink, armadillo, coyote, squirrel, fox, wolf. Id.

[14] 7 U.S.C § 2132 (2000).

[15] Id. § 2133 .

[16] If a store becomes regulated by the AWA, the entire store and all regulated animals are subject to AWA standards. Therefore, even non-exotic and non-wild regulated animals become subject to AWA welfare standards. USDA , supra at note 10.  

[17] 7 U.S.C. § 2143 (2000).

[18] Animal Care, The Animal Care Program and the U.S. Department of Agriculture’s Authority under the Animal Welfare Act: Basic Questions and Answers . July 2005. http://www.aphis.usda.gov/lpa/pubs/fsheet_faq_notice/faq_awusda.html .  

[19] Id.

[20] Richard L. Crawford, DVM , A Review of the Animal Welfare Enforcement Report Data 1973 Through 1995 , ( Animal Welfare Information Center, National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture, Beltsville, Md.), Vol. 7, No. 2, (1996) http://www.nal.usda.gov/awic/newsletters/v7n2/7n2crawf.htm#dealers .

[21] Animal Care , supra note 18.

[22] 16 U.S.C. § 1538 (2000).

[23]  16 U.S.C. § 3372 .   

[24] AL, AK, HI, ID, KY, LA, NM, ND, OK, SD, TN, UT, WA, WV, and WY.

[25] AR, IN, MS, MT, OH, SC, TX, and WI.

[26] AZ, AR, CA, CO, CT, FL, IL, IN, KS, ME, MD, MA, MI, MN, NV, NH, NJ, NY, NC, OH, PA, RI, VA, and WI.

[27] AZ, CA (dogs only), CO, CT, FL, IL, KS, ME, MD, MA, NV, NY, NY, OH (dogs only), and VA.

[28] N.H. Rev. Stat. Ann. § 437:15 (LexisNexis 2006).

[29] AZ, CA, CO, DE, IL, IA, KS, ME, MA, MI, MO, NV, NH, NJ, NY, NC, OR, RI, VT, and, VA.

[30] Mo. ann. rev. Stat. § 2 73.325 (West 2006).

[31] N.C. Gen. Stat. Ann. § 19A-23 (West 2006).

[32] AZ, CA, DE (dogs only), ME, MI, NV, NY, and NC.

[33] AZ, CA, CO, CT, DE, GA, IL, KS, ME, MD, MA, MI, MO, NV, NH, NY, OR, PA, VT, and VA.

[34] AZ, CA, CO, CT, FL, IL, KS, ME, MN, MO, NE, NV, NH, NJ, NY, and VA.  

[35] Minn. Stat. Ann. § 325F.791 (West 2006).

[36] Ariz. Rev. Stat. Ann. § 44-1799.04 (2006).

[37] 01-001-701 Me. Code R. § 1 (1999).

[38] N.H. Code Admin. R. Ann (Dept. of Agric., Mkts., and Food) 1702.05 (2006).

[39] AZ, CA, CO, DE, FL, GA, IL, IA, KS, ME, MA, MI, MO, NE, NV, NH, NY, NC, OR, RI, and VA.

[40] 8 Colo. Code Regs. §1201-11 (2006).

[41] AZ, CA (dogs only), DE (dogs only), MI, NE, NV, and NH.  

[42] Animal Protection Institute, Little Shops of Horror: An Undercover Investigation into California Pet Stores , http://www.api4animals.org/downloads/pdf/PetShops_Report.pdf .

[43] AR, CO, CT, DE, IL, IA, KS, ME, MD, MA, MI, MS, MO, NE, NH, NJ, NY, NC, PA, RI, and VT.

[44] The Humane Society of the United States, Get the Facts on Puppy Mills , http://www.hsus.org/pets/issues_affecting_our_pets/get_the_facts_on_puppy_mills/ . Noting that “[p]uppy-mill dogs are the ‘inventory’ of these retail operations.”

[45] Id .

[46] Vt. Stat. Ann. tit. 20 § 3911 (2006).

[47] R.I. Gen. Laws § 4-19-2 (2006).

[48] Animal Protection Institute, supra note 42.