I. Introduction
Dog breeding in America is big business with little governmental oversight. Given the intersection of easy money and lax regulation, the dogs are often reduced to chattels with profiteers spending as little as possible on their “commodities” in order to maximize earnings. This cold economic calculus—produce more for less—leads to a situation where puppies are treated as widgets, and puppy mills serve as factories for mass-production.
In the United States today, there are approximately 10,000 puppy mills producing more than 2,400,000 puppies each year. Of those 10,000 mills, only around 2,000 to 3,000 are licensed by the USDA. Humane Society of the United States (“HSUS”), The Humane Society of The United States Urges State Legislature To Override Gov. Christie’s Veto Of Anti-Puppy Mill Bill (May 2, 2017), available at http://www.humanesociety.org/news/press_releases/2017/04/the-humane-society-of-the-050217.html; ASPCA, A Closer Look at Puppy Mills (last visited Aug. 7, 2017), available at https://www.aspca.org/animal-cruelty/puppy-mills/closer-look-puppy-mills.
Commercial breeders have garnered a negative reputation, seeing as current federal law allows dogs in commercial kennels to live their entire lives in vertically stacked chicken wire crates. Female dogs may be bred repeatedly without regard for genetic quality of the offspring, leading to the concentration of undesirable genetic traits that can be both physical and psychological. Dogs may also never have any access to human socialization, often leading to behavioral problems and poor emotional wellbeing. Despite the fact that not all breeders sacrifice proper and humane care for profit, lax regulation and oversight (and the large percentage of breeders that simply go unlicensed) makes it increasingly difficult for prospective dog owners to tell whether a puppy for sale was bred in a healthy environment, or from a cruel and abusive industry.
This paper gives an overview of the commercial breeding industry in the United States, beginning with a discussion of the industry’s various market forms, including brick and mortar pet stores, Internet websites, and foreign breeders. The paper then examines the underlying federal law and administrative regulations that provide minimum care standards for certain breeders. What follows is information on various state laws and recent legislation, including an examination of the increasing prevalence of local laws that address the puppy mill industry. The paper then explains the enforcement of puppy mill laws, which is criticized as insufficient to address the problem, and concludes with the observation that local laws and consumer education appear to be the most feasible solutions to combatting the prevalence of commercial breeding.
II. Commercial Breeding and Puppy Mills
The term “puppy mill” has been coined by animal welfare activists to refer to a kind of commercial breeding operation that inadequately cares for the dogs. The ASPCA defines puppy mill as: “a large-scale commercial dog breeding operation where profit is given priority over the well-being of the dogs.” See ASPCA, Puppy Mills (last visited July 15, 2017), available at https://www.aspca.org/animal-cruelty/puppy-mills. Courts have also utilized the term, defining it as: “a dog-breeding operation in which the health of dogs is disregarded in order to maintain low overhead and maximize profit.” Martinelli v. Petland, Inc.,(No. 10-407-RDR) (D. Kan. 2010) citing Avenson v. Zegart, 577 F.Supp. 958 (D. Minn. 1984).
The commercial breeding industry can be highly profitable, yielding high prices of thousands of dollars for purebred and “designer dogs.” Unlike hobby breeders, who typically are concerned primarily with enhancing the breed, commercial breeders are motivated primarily by this profit. That is not to say commercial breeders always operate puppy mills—commercial breeders may have fairly small operations and provide adequate care for the dogs. Norma Bennett Woolf, Just What Is A Puppy Mill? Dog Owner’s Guide (last visited Aug. 5, 2017), available at http://www.canismajor.com/dog/puppymil.html. Unscrupulous breeders, on the other hand, can create puppy mill conditions in order to increase their profits. Such conditions may involve reducing the number of veterinary trips for each animal; maximizing space by housing dogs in stacked, wire crates; limiting the amount and/or quality of food or water provided to the dogs; and increasing yield per breeding female by getting multiple litters out of a single animal. ASPCA, A Closer Look at Puppy Mills (last visited Aug. 7, 2017), available at https://www.aspca.org/animal-cruelty/puppy-mills/closer-look-puppy-mills. Given this fairly straightforward profit-maximization scheme and continued consumer demand for designer and purebred dogs, the industry has grown far beyond the capacities of both federal and state regulatory enforcement. The vast number of breeders who can avoid any regulatory oversight altogether similarly fuel the continued existence of the puppy mill industry. Not surprisingly, given the lack of governmental oversight and the economic incentives, puppy mill dogs are obtainable through a variety of outlets, be they traditional brick and mortar stores or via the Internet.
A. Pet Stores
More often than not, puppies sold in pet stores are from puppy mills—roughly 90% in fact, according to the Humane Society. See Humane Society International, Puppy Mills (last visited July 15, 2017), available at http://www.hsi.org/assets/pdfs/puppy_mills_factsheet.pdf.
There are several reasons why pet stores that sell puppies tend to source from puppy mills. For one, many animal welfare organizations assert that responsible breeders are less likely to turn puppies over to a store where they are not able to see who eventually takes the puppy home. The HSUS explains that responsible breeders will require a person purchasing a puppy to, among other things: “Explain why you want a dog; Explain who in your family will be responsible for the pup’s daily care and training; where the dog will spend most of his or her time; and what “rules” have been decided upon for the puppy—for example, whether the dog will be allowed on furniture; Provide a veterinary reference if you have other pets; Sign a contract that you will spay or neuter the dog;” and “Sign a contract stating that you will return the dog to the breeder should you be unable to keep the dog at any point in the dog’s life.” HSUS, How to Find a Responsible Dog Breeder (last visited July 7, 2017), available at http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/find_responsible_dog_breeder.pdf. Many animal welfare organizations also recommend that people purchasing puppies view the breeding environment and the condition of the parents. Buying puppies from pet stores removes the ability to inspect breeding conditions, and in many cases leaves little to no means of ensuring the dog came from a humane breeder.
Responsible breeders also do not churn out as many litters as is achieved through commercial breeding. In a responsible environment, breeding females are given adequate time to recover and nurture the puppies after giving birth, and too many puppies are not housed at one time. Litters are also limited to maintain the genetic quality of the breeding stock. Norma Bennet Woolf, Dog Owner’s Guide: What is a Puppy Mill? (last visited Aug. 5, 2017), available at http://www.canismajor.com/dog/puppymil.html. So, responsible breeders will not only be unwilling to let the puppies be sold to the first willing buyer, but they also will not produce enough puppies to make selling wholesale to a pet store a viable enterprise.
Several studies also indicate that puppies subjected to a pet store environment are more prone to develop behavioral problems. A 2013 study found that purchasing a puppy from a pet store as opposed to a noncommercial breeder “represented a significant risk factor for the development of a wide range of undesirable behavioral characteristics,” including “significantly greater aggression toward human family members, unfamiliar people, and other dogs … greater fear of other dogs and nonsocial stimuli and greater separation-related problems and house soiling.” Am. Veterinary Med. Ass’n, Puppy Behavior In Dogs From Pet Stores Compared To Noncommercial Breeders, Advances in Small Animal Medicine & Surgery Vol. 27, Iss. 6, June 2014, Page 3. Another study in 2017 found: “dogs born in high-volume commercial breeding establishments and sold to the consumer directly via the Internet or indirectly through retail pet stores revealed an increased incidence of behavioral and emotional problems that cause distress in adulthood compared with dogs from other sources, especially noncommercial breeders.” Specifically, it identified as the putative causes for this result the sequence of events for the typical dog, including selecting the dog’s parents determining its genetic composition, the dog’s fetal development affected by the mother’s experiences, removal from its “mother, littermates, and its home environment,” subsequent transport from “breeding facility to broker/distributor;” and then from “broker/distributor to pet store,” leading eventually to the pet store, then to the new owner’s home. Franklin D. McMillan, Behavioral and Psychological Outcomes for Dogs Sold as Puppies Through Pet Stores and/or Born in Commercial Breeding Establishments: Current Knowledge and Putative Causes, J. of Veterinary Behavior: Clinical Applications & Research, Vol. 19 p. 14 (2017), available at http://www.journalvetbehavior.com/article/S1558-7878(17)30010-2/pdf.
Then again, those who support pet stores selling puppies argue that pet stores are more like to have healthy dogs than can be obtained elsewhere, since pet stores usually only source from USDA licensed breeders. It is also claimed that pet store dogs are the healthiest dogs available. According to Pet Industry Joint Advisory Council (“PIJAC”): “The preeminent study on this question, conducted at Cornell University Veterinary School, found that no source provides healthier puppies on average than do pet stores.” PIJAC, Testimony of Pet Industry Joint Advisory Council Before the Committee on Environment House Bill 5027 (Mar. 15, 2015) available at https://www.cga.ct.gov/2013/ENVdata/Tmy/2013HB-05027-R000315-Pet%20Industry%20Joint%20Advisory%20Council%20%28PIJAC%29-TMY.PDF. The 1994 study referenced by PIJAC stated: “The prevalence of serious disease among pups (resulting in death, euthanasia, return, or extensive treatment) was < 4% for all sources and did not differ significantly between pet stores and other sources. Pups from pet stores had more respiratory tract disease, but fewer fleas and parasites of the intestinal tract.” J.M Scarlett & J. Pollock, Source of Acquisition as a Risk Factor For Disease and Death in Pups, Am. Veterinary Med. Ass’n 204:1906-1913 (1994).
What’s more, given the limited nature of the USDA’s oversight and care requirements, the fact that a puppy’s breeders are USDA licensed may not necessarily say much about the quality of the dog’s upbringing. In fact, the USDA inspector general had found “dogs cared for by USDA-licensed breeders that were walking on injured legs, suffering from tick-infestations, eating contaminated food, and living in unsanitary conditions.” Puppies 'N Love v. City of Phoenix, 116 F. Supp. 3d 971, 978 (D. Ariz. 2015).
Many pet stores may also have additional requirements beyond just sourcing from USDA breeders, such as only obtaining dogs from certain registries that keep detailed track of the dog’s lineage like the American Kennel Club (AKC). Such registry certifications may or may not increase the likelihood of obtaining responsibly bred puppies. According to the AKC: “There is a widely held belief that "AKC" or "AKC papers" guarantee the quality of a dog. This is not the case. AKC is a registry body. A registration certificate identifies the dog as the offspring of a known sire and dam, born on a known date. It in no way indicates the quality or state of health of the dog.” AKC, About Registration, available at https://web.archive.org/web/20110514200307/http://www.akc.org/reg/about.cfm.
However, legally speaking, pet stores are generally free to buy dogs wholesale from puppy mills, absent state or local law barring them from doing so. This is because federal law regulates dealers and breeders, but specifically exempts retail pet stores. “Retail pet store,” as currently defined under United States Department of Agriculture (“USDA”) regulations, means:
a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase, and 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, chinchillas, domestic ferrets, domestic farm animals, birds, and coldblooded species.
9 C.F.R. § 1.1. This reason for this exemption is that pet stores, which are open to the public and subject to customer scrutiny, are already subject to oversight to ensure that puppies are “are monitored for their health and humane treatment.” 78 Fed. Reg. 57228 (2013). As such, exempting retail pet stores from AWA coverage allows limited federal enforcement to focus on areas without such public accountability: online sales.
B. Internet Sales
Pet stores do not constitute the biggest segment of the puppy mill industry. The industry has majorly shifted from brick and mortar to Internet sales—a fact that is far less known, leading many unwitting buyers to inadvertently support the industry with their dollars. Yet, a major victory for animal advocacy groups came after 2013, when the USDA closed a loophole that essentially exempted Internet sellers from federal regulations. See 9 C.F.R. pt. 1 (2013). This loophole existed because “retail pet stores,” (which are exempt from federal regulations), were originally defined under the regulations 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 cold-blooded species,” with some exceptions. 9 C.F.R. §1.1 (2004) (revised by 78 Fed. Reg. 57227). As such, breeders that sold over the Internet or by other remote means technically qualified as retail pet stores, and did not need to obtain USDA licenses or adhere to minimum care standards.
The USDA limited its definition of “retail pet store” in 2012 to include more breeders under the purview of the federal regulation. To ensure that “sight unseen” dealers were subject to USDA licensing requirements, the new definition of retail pet store narrowed “any outlet” to: “a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal…” 9 C.F.R. § 1.1.
Despite the expanded reach of federal regulation to remote sellers, many customers still buy puppy mill dogs from unsuitable condition over the Internet, sometimes as a result of misleading and fraudulent practices. Dogs sold over the Internet cannot ordinarily be inspected prior to purchase, and often will be transported far distances to be delivered to the buyer. These dogs, while technically under the purview of federal regulations after the loophole closed, may still have endured grueling conditions, either because of the breeders’ violation of federal standards, or simply because the minimum standards in place are not sufficient to ensure the health and wellbeing of the dogs.
While there are responsible breeders who sell puppies over the Internet, many others engage in some of the practices for which commercial breeding is notorious. Certain websites such as PuppyFind.com have been “repeatedly linked” to puppy mills. HSUS, The Horrible Hundred 2017 (May 2017), available at https://dl.dropboxusercontent.com/content_link/QWhIp1wfcLvV5BXNRDQDgnWNmlLvfC3AzFaWGi8VmG6WY18mrLfufO4HFjRopyXc/file. Other websites have allegedly utilized fraudulent and deceptive tactics, such as removing negative comments to inflate seller ratings, causing costumers to unknowingly purchase puppy mill dogs that are sick, or that even die shortly after purchase. HSUS, “Puppyfind” Faces Consumer Lawsuit Alleging Deceptive Conduct for Promoting the Sale of Sick Puppy Mill Puppies (Oct. 14, 2016), available at http://www.humanesociety.org/news/press_releases/2016/10/puppyfind-faces-consumer.html?credit=blog_post_101416_id8495.
Similar claims of fraudulent practices over online puppy mill sales were raised in a lawsuit filed by the HSUS in 2012, whereby over 60 plaintiffs claimed that 800 websites owned by Purebred Breeders LLC were misrepresenting the legitimacy of the breeders that puppies for sale came from, citing multiple instances of puppies being sick or even dying shortly after purchase. See Amended Complaint, Papa v. Purebred Breeders, LLC, No. ll-38180CA02 (Fl. 2012) available at http://media.wptv.com/documents/purebreed.pdf; see also HSUS, The HSUS Applauds USDA for Proposal to Regulate Unlicensed Puppy Mills (May 10, 2012), available at http://www.humanesociety.org/news/press_releases/2012/05/hsus_applauds_usda_proposal_puppy_mills_051012.html. This lawsuit was eventually dismissed without prejudice. Papa v. Purebred Breeders, LLC, 146 So. 3d 65 (Fla. Dist. Ct. App. 2014).
C. Foreign Breeders
Puppy mill dogs may originate from foreign breeders as well. According to the U.S. Census Bureau, 8,634 dogs were being imported each year from 2009-2013. See 79 Fed. Reg. 48657 (2014), available at https://www.gpo.gov/fdsys/pkg/FR-2014-08-18/pdf/2014-19515.pdf. Foreign puppy mills are not regulated by the USDA and thus not subject to even the minimum federal standards, so conditions in foreign puppy mills may be extremely inadequate. Puppies transported internationally can also endure grueling conditions, like being crammed into tight spaces for hours with little to no food or water. Many puppies perish during transport, and those that survive are often ill from dehydration, malnourishment, or disease caused by not being vaccinated and having close contact with other unvaccinated dogs. See Wayne Pacelle, United States Moves to End Puppy Mill Imports, HSUS (Aug. 15, 2014), available at http://blog.humanesociety.org/wayne/2014/08/puppy-mill-imports-victory.html
In 2008, Congress addressed the unregulated importation of dogs when it amended the Animal Welfare Act with its Food, Conservation, and Energy Act. See Pub. L. 110–246, 7 U.S.C. § 2148. This amendment prohibits the importation of dogs into the United States, for purposes of resale, unless the dog: “(A) is in good health; (B) has received all necessary vaccinations; and (C) is at least 6 months of age.” Violating this section would result in penalties of “not more than $10,000” (§ 2149(b)) and would require the importer to “provide for the care (including appropriate veterinary care), forfeiture, and adoption of each applicable dog.” § 2148(d)(2).
The USDA implemented this amendment into a final rule in 2014, and further established requirements for obtaining USDA permits, health certifications, and rabies vaccinations for those importing live dogs for purposes of sale. See 9 C.F.R. §§ 2.150 – 2.153.
However, these regulations have been difficult to enforce. Not only are U.S. entry officials limited in resources, but more and more importers rely on falsified documentation to skirt regulations. In 2015 for instance, a large shipment of dogs and cats from Egypt, able to enter the United States through falsified vaccination certificates, contained at least one dog infected with rabies. This problem of dogs entering the United States with false certification prompted the Centers for Disease Control and Prevention to issue a health alert notification on “Imported Dogs with Questionable Documents.” See CDC, HEALTH ALERT: Imported Dogs with Questionable Documentation (May 27, 2014), available at https://www.ochd.org/SiteData/docs/HEALTHALER/c41c5956a2c7e4e2/HEALTH_ALERT-Improper_importation_of_dogs2014%20104114%20%282%29.pdf; see also CDC, Morbidity and Mortality Weekly Report, Dec. 18, 2015, Vol. 6 No 49 at p. 1359, available at https://www.researchgate.net/publication/290514972_Rabies_in_a_Dog_Imported_from_Egypt_with_a_Falsified_Rabies_Vaccination_Certificate_-_Virginia_2015.
D. Health Hazards
Generally speaking, commercial breeding practices both domestically and internationally can have health implications for dogs and humans. Any time animals are kept in unsanitary conditions there is the possibility of infection and disease. Even where conditions are not unsanitary, keeping dogs in cramped conditions (where possibly none of the animals are vaccinated) can allow illnesses to spread from dog to dog. Illnesses such as canine distemper (“canine flu”), infectious canine tracheobronchitis (“kennel cough”), parvovirus (“parvo”), and dermatophytes (“ringworm”), are all infectious diseases that can be spread living in close environments. See Am. Veterinary Med. Found., Disease Risks for Dogs in Social Settings, (last visited July 15, 2017), available at https://www.avma.org/public/PetCare/Pages/Disease-Risks-for-Dogs.aspx.
The importation of foreign dogs can be hazardous for human health as well. For instance, when the shipment of dogs and cats from Egypt entered the U.S. through falsified documentation, “[p]otential human exposures [to rabies] were identified.” Because the rabies virus in canines has been eliminated in the United States, dogs from foreign countries are the “principal source for human rabies infections.” See Ctr. for Disease Control & Prevention, Morbidity and Mortality Weekly Report, Dec. 18, 2015, Vol. 6 No 49 at p. 1359 available at https://www.researchgate.net/publication/290514972_Rabies_in_a_Dog_Imported_from_Egypt_with_a_Falsified_Rabies_Vaccination_Certificate_-_Virginia_2015. Brucellosis, an infectious bacterial disease that affects reproductive organs, can also be transmitted from dogs to humans. The incidence of human cases is unknown because the illness is difficult to diagnose in humans. See APHIS Animal Care, Brucellosis and Dog Kennels: What Breeders Need To Know, USDA (2016), available at https://www.aphis.usda.gov/publications/animal_welfare/2016/bro-brucellosis-breeders.pdf.
III. Federal Law and USDA Regulation
A. The Animal Welfare Act (AWA)
The Animal Welfare Act (“AWA”) was passed in 1966 to insure that “animals intended . . . for use as pets are provided humane care and treatment,” 7 U.S.C. § 2131(1). It is currently the only uniform animal welfare law in the United States. See David Favre, Animal Legal & Historical Center, Overview of U.S. Animal Welfare Act (2002).
The AWA requires certain “dealers”—defined as “any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog … for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes”—to be licensed (§ 2134) by the Secretary of Agriculture (USDA Secretary). The AWA authorizes the Secretary to develop a licensing scheme (§ 2133) and promulgate standards governing the humane treatment of animals by those licensed. § 2143(a)(1). These standards are to provide “minimum requirements” “for 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;” as well as “for exercise of dogs, as determined by an attending veterinarian.” § 2143(2).
The Secretary is also to conduct inspections “as [he or she] deems necessary” to ensure licensees are not in violation of the AWA or other regulations. §2146(a). The USDA’s Animal and Plant Health Inspection Service (APHIS) is charged with issuing licenses and conducting inspections.
B. USDA and APHIS
As noted previously, not every commercial breeder falls under the USDA/APHIS umbrella. Out of as many as 10,000 puppy mills, the USDA licenses around 30%. For these licensed breeders, regulations provide at least minimum care standards. However, critics view the USDA’s regulations and its means of enforcing them as inadequate. Moreover, there is concern that the new administration is back-tracking on promises of public transparency that would enable citizen overview of licensees.
i. Licensing
APHIS has licensing requirements for “people who breed dogs and cats for use as pets or for other purposes and sell them sight unseen at the retail level” and “wholesale dealers who supply these animals to pet stores, brokers, or research facilities.” See APHIS, Questions and Answers: Regulation of Dog/Cat Breeders and Dealers (Feb. 2014), available at https://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/faq_animal_dealers.pdf. Several types of breeders are exempt from licensing requirements, including breeders with no more than four breeding female animals and who sell only their offspring (9 C.F.R. § 2.1(a)(3)(iii)); retail pet stores (§2.1(3)(i)); individuals who “[sell] or negotiat[e] the sale or purchase of any animal except wild or exotic animals, dogs, or cats, and who derives no more than $500 gross income from the sale of such animals” per year (§2.1(3)(ii); and persons who “[buy] animals solely for his or her own use or enjoyment.”(§2.1(3)(viii)).
Those licensed by APHIS are required to adhere to the AWA and USDA regulations (9 C.F.R. §§ 2.40 and 3.1-3.19) with regard to breeding facilities, animal health, and transportation. 9 C.F.R. §§ 3.1-3.19. Such regulations cover “housing, sanitation, food, water, and protection against extremes of weather and temperature,” and require breeders and dealers to arrange at least regular veterinary visits and maintain adequate records. See APHIS, Questions and Answers: Regulation of Dog/Cat Breeders and Dealers (Feb. 2014), available at https://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/faq_animal_dealers.pdf.
ii. Standards of Care
Although dogs are to be provided food that is “wholesome, palatable, and free from contamination and of sufficient quantity and nutritive value to maintain all animals in good health” (§ 3.129) and given water “as often as necessary for the health and comfort of the animal” (§ 3.130), other aspects of these standards have been criticized as being merely “survival standards.” For instance, the regulations allow dogs to live in stacked, wire crates (9 C.F.R. § 3.6(a)(2)(xii)), require primary enclosures be only 6 inches taller and longer than the dog (9 C.F.R. § 3.6(c)(1)(i)), and do not limit the amount of times a female may be bred within a certain period or how long a dog can spend in a crate. Furthermore, bedding is not required unless temperatures are less than 50 degrees, and even then, “solid resting boards” are acceptable. 9 C.F.R. §§ 3.2(a), 3.3(a). Dogs housed individually are only provided “the opportunity for exercise regularly,” (§3.8(a)) while dogs housed in groups are not required to have the opportunity for exercise at all. §3.8(b).
iii. Enforcement
APHIS is also responsible for enforcing AWA and USDA regulations. Breeding facilities are inspected according to their risk level, which is determined by their record of complying with regulations. That is, facilities with “more difficulty adhering to the regulations” are to be inspected the most frequently. Minor violations are normally subject to a warning, and breeders are given time to fix the problem. Serious violations such as animal deaths resulting from negligent breeding facilities warrant formal investigations by APHIS’s Investigative and Enforcement Services (“IES”). Repeat noncompliance found through inspections and investigations may lead to enforcement actions such as “warning letters, monetary fines, cease-and-desist orders, license suspensions, and license revocations.” The USDA is also authorized to confiscate animals that have not been provided adequate veterinary care. APHIS, Questions and Answers: Regulation of Dog/Cat Breeders and Dealers (Feb. 2014), available at https://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/faq_animal_dealers.pdf.
However, many often attribute the commercial breeding industry’s continued prevalence to inadequate enforcement by APHIS. In fact, even the USDA's Office of the Inspector General (“OIG”) has been extremely critical. In 2005, the OIG conducted an audit that found APHIS “was not aggressively pursuing enforcement actions against violators of AWA and … assessed minimal monetary penalties against them.” OIG Western Region, APHIS Animal Care Program Inspection and Enforcement Activities, USDA, Audit Report No. 33002-3-SF (Sept. 2005), available at https://www.usda.gov/oig/webdocs/33002-03-SF.pdf.
Five years later, the OIG’s audit found that APHIS’s “enforcement process was ineffective against problematic dealers,” “inspectors did not cite or document violations properly,” “the agency continued to assess minimal penalties that did not deter violators;” “APHIS misused guidelines to lower penalties for AWA violators;” and “some large breeders circumvented [the] AWA by selling animals over the Internet.” OIG, Animal and Plant Health Inspection Service Animal Care Program Inspections of Problematic Dealers, USDA, Audit Report No. 33002-4-SF (May 2010), available at https://www.usda.gov/oig/webdocs/33002-4-SF.pdf.
APHIS responded to this audit by implementing 13 out of 14 of the OIG’s recommendations. It also implemented its Animal Welfare Enforcement Plan, which involved creating 35 new positions dedicated to inspecting problematic commercial breeders. From 2010 to 2011, the number of enforcement actions brought increased 92% (336 actions in 2010 to 650 in 2011). Office of Budget & Program Analysis, 2013 Explanatory Notes, APHIS (2013), available at https://www.obpa.usda.gov/18aphis2013notes.pdf.
As part of the USDA, a federal agency, APHIS can only enforce the AWA to the extent it can feasibly do so with the resources allocated to it by Congress. APHIS is not only charged with enforcing the AWA with regard to commercial breeders, it also enforces the Plant Protection Act (7 U.S.C. § 7701), the Horse Protection Act (15 U.S.C. §§ 1821-1831), the Honeybee Act (7 U.S.C. §§281-286), and several others. The Animal Care unit, which enforces the AWA and the Horse Protection Act, employs approximately 120 inspectors in the United States. USDA, About Animal Care (last modified July 23, 2015) available at https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/usda-animal-care-overview/ct_about_animal_welfare. These inspectors are responsible for enforcing not only for commercial breeding facilities, but also research facilities and zoos, shows, or anywhere animals are used in exhibition.
Yet, the most recent audit report by the USDA’s Inspector General found that APHIS “did not make the best use of its limited resources.” Specifically, the report stated that in order to address a 2,000 case backlog of investigations, APHIS closed a total of 646 investigations with either a warning letter or no action. It also found that at least 59 cases involving “grave (e.g. animal deaths) or repeat welfare violations,” were closed either through issuance of a warning letter or a monetary fine. The OIG stated, “[s]uch inconsistent enforcement could risk weakening the agency's enforcement authority.” It also found that although APHIS had agreed to reduce its 75% settlement reduction for repeat or direct violators after the 2005 audit, it reinstated it in 2012. See OIG, Animal and Plant Health Inspection Service Oversight of Research Facilities, USDA, Audit Report No. 33601-0001-41 (Dec. 2014), available at https://www.usda.gov/oig/webdocs/33601-0001-41.pdf.
C. Transparency
As a part of efforts to increase the strength of enforcement through transparency, the USDA began posting inspection reports online in May 2009. ALDF, The Obama Administration’s Top Animal Accomplishments, (2016), available at http://aldf.org/wpcontent/uploads/ALC/2016/The_Obama_Administrations_Top_Accomplishments_8_11_16.pdf. However on February 3, 2017, the new Trump Administration revoked public access to these reports. Meredith Wadman, USDA Blacks out Animal Welfare Information, ScienceMag.org (Feb. 3, 2017), available at http://www.sciencemag.org/news/2017/02/usda-blacks-out-animal-welfare-information. After about a month and a half, certain records were recovered to the USDA’s website concerning “research facilities and other types of dealers,” although “almost no records on pet breeding operations were restored.” HSUS, The Horrible Hundred 2017: Uncovering U.S. Puppy Mills, (May 9, 2017), available at http://www.humanesociety.org/news/press_releases/2017/05/horrible-hundred-2017-uncovering-puppy-mills.html.
A lawsuit initiated by non-profit animal welfare organizations sought a mandatory preliminary injunction to compel the USDA to reinstate public access, alleging the USDA breached obligations under the Freedom of Information Act and that its decision to block access was arbitrary and capricious. Ultimately, the court concluded that the plaintiffs had not met their burden in showing they were likely to succeed on their claims, likely to suffer irreparable harm, or that the public’s interest in access to the records outweighed the USDA’s privacy interests. Animal Legal Defense Fund v. USDA, 2017 WL 2352009 (N.D. Cal. 2017) (unpublished).
A bill introduced on March 2, 2017 in the Senate, the Animal Welfare Accountability and Transparency Act (S. 503), would require the Secretary of Agriculture to “make publicly available certain regulatory records relating to the administration of the Animal Welfare Act.” This bill has a slim chance of enactment according to Govtrack.org. See Govtrack, S.503: Animal Welfare Accountability and Transparency Act, (last visited Aug. 5, 2017), available at https://www.govtrack.us/congress/bills/115/s503.
IV. State Laws
Historically, states regulated the commercial breeding industry through consumer protection; laws addressed consumers purchasing “defective” dogs through pet purchaser protection acts (also known as “puppy lemon laws”). As concerns shifted to animal welfare, many states have passed legislation to go beyond the minimum care standards required by the AWA and USDA. These laws vary widely from state to state and are criticized as being inadequately enforced. Yet several states have begun taking a different approach and are seeking greater transparency in the sale of puppies in pet stores. Together, these laws have brought some negative effects of puppy mills under state control.
A. Commercial Breeder Laws
Many states have passed legislation to go beyond the minimum care standards required by the AWA and USDA. To this date, most states have at least some additional statutory requirements pertaining to commercial breeding, and only 16 have no such laws whatsoever. In fact, the number of states without such laws has been steadily declining, from 24 in 2008, to 21 states in 2014 and now 16 in 2017 (See Table of Commercial Pet Breeder Laws). This trend may continue, as states like Montana that currently have no regulations have introduced legislation to address commercial breeding. (HB 570).
Meanwhile, the states that have imposed additional statutory requirements on commercial breeding, whether with regard to licensing, standard of care, or inspection requirements, all exist on a broad spectrum of thoroughness. For one, states vary in what types of breeders fall within the purview of its regulations. Many have laws that apply to “commercial breeders,” however, that term itself is also variably defined. For example, Oklahoma defines “commercial breeder” as “any individual, entity, association, trust, or corporation who possesses eleven or more intact female animals for the use of breeding or dealing in animals for direct or indirect sale or for exchange in return for consideration.” Okla. Stat. Ann. tit. 4, § 30.2. In Virginia, commercial breeder is defined as: “any person who, during any 12-month period, maintains 30 or more adult female dogs for the primary purpose of the sale of their offspring as companion animals.” Va. Code Ann. § 3.2-6500. Others, such as New Hampshire and Pennsylvania, have definitions for “commercial kennels” and “kennels.” N.H. Rev. Stat. Ann. § 437:2, Pa. Stat. Ann. § 459-102.
States also vary widely in their licensing requirements. In Connecticut, licenses are required for anyone breeding “more than 2 litters of dogs annually” (Conn. Gen. Stat. § 22-342), and in Kansas, licenses are required for breeders with “6 or more litters of dogs or 30 or more dogs or cats, or both.” Kan. Stat. Ann. § 47-1701, § 47-1733.
Another variable among state laws are the standard of care requirements for dogs in commercial kennels. On one end of the spectrum (for those states that have any commercial breeder laws at all) are laws like Arizona’s, which provide for inspections of kennels but have no additional standards of care beyond those required by the AWA. Ariz. Rev. Stat. Ann. § 11-1001, 11-1009, and 11-1019. On the other end are laws like in Delaware and New Jersey, which provide comprehensive standards in areas like sanitation, feeding and watering, structural soundness of housing facilities and disease control. Del. Code Ann. tit. 16, § 3044F; N.J. Admin. Code § 8:23A-1.3 to 1.13.
States also differ on the enforcement of their specific commercial breeder laws. For example, Iowa requires “reasonable cause” before entering the premises to conduct an inspection. I.C.A. §162.10C(2). In Kansas, inspectors may make at least two inspections a year, but must inspect if there is “reasonable grounds” for believing there was a violation. Kan. Stat. Ann. §47-1709(c). In Minnesota, commercial breeders that are in violation of the state’s regulations are given time to correct it and re-inspected within 15 days after that time has elapsed. Minn. Stat. Ann. § 347.61.
In Pennsylvania, inspections are required at least twice a year. 3 Pa. Stat. Ann. § 459-218(a). However, despite this relatively strict inspections scheme, the state is one of the four most problematic puppy mill producers, with a total of 12 making it on the HSUS’s horrible hundred list for 2017. HSUS, The Horrible Hundred 2017 (May 2017), available at https://dl.dropboxusercontent.com/content_link/QWhIp1wfcLvV5BXNRDQDgnWNmlLvfC3AzFaWGi8VmG6WY18mrLfufO4HFjRopyXc/file. Perhaps to explain the discrepancy, the Pennsylvania auditor general stated in 2013 that its performance audit of the Pennsylvania dog law program “from 2008 through 2012 shows an intentional lack of enforcement of the state’s dog law and the commercial kennel canine health regulations.” Pa. Dept. of the Auditor General, Auditor General DePasquale Finds Dog Law Enforcement Hindered by Lax Leadership, Inadequate Financial Controls, (July 15, 2013), available at http://www.paauditor.gov/press-releases/auditor-general-depasquale-finds-dog-law-enforcement-hindered-by-lax-leadership-inadequate-financial-controls.
B. Puppy “Lemon” Laws
“Lemon laws” for dog purchases are a specific type of state law that has become more prominent among the states. Currently, over 20 states have laws that provide for refunds or exchanges of dogs purchased that become ill within a certain time after purchase (see Table of Pet Purchaser Protection Laws). Most of these laws provide for reimbursement of veterinary fees up to the purchase price, except Maine that only reimburses 50% of veterinary fees not to exceed 50% of the purchase price. Me. Rev. Stat. tit. 7, § 4155(3). New Jersey goes the furthest, providing the option to be reimbursed all veterinary fees incurred in curing the animal. N.J. Stat. Ann. § 56:8-95(i)(2). Some states like California provide for reimbursement of up to 150% of the purchase price plus reimbursement of veterinary fees. Cal. Health & Safety Code § 122160.
These laws, while only addressing the consumer end of the transaction, may not directly address the conditions in puppy mills. Indirectly, however, these laws may incentive breeders to take further precautions so that the puppies sold to pet stores do arrive in good health. They may also serve to educate consumers as to the propensity of health issues among puppies sold in pet stores, which has prompted lawmakers across the country to pass these types of laws.
C. Pet Shop Laws
In the past few years, a new trend has emerged among several states: regulation of pet stores. A few of the states that now regulate pet stores that sell puppies include: Arizona (Ariz. Rev. Stat. Ann.§ 44-1799.10); Connecticut (Conn. Gen. Stat. Ann. §22-354); Louisiana (La. Rev. Stat. Ann. § 3:2511); New Jersey (N.J. Stat. § 56:8-95.1); Ohio (Ohio Rev. Code Ann. § 956.20, 956.19, 956.23); and Virginia (VA Code Ann. § 3.2-6511.1). These laws impose various regulations on pet stores; including place of origin and transparency requirements.
For example, pet stores in Ohio can only source puppies from animal rescues, animal shelters, humane societies, dog retailers sourcing from qualified breeders, and qualified breeders. Ohio Rev. Code Ann. § 956.20. New Jersey’s place of origin requirements go a step further, forbidding pet stores from sourcing from breeders that are not in compliance with maintenance and care requirements, or that have been cited by the USDA. N.J. Stat. § 56:8-95.1. Pet shop regulations often require retention and display of the dog’s records as well; for example, Arizona requires pet dealers display the name of the breeder, the breeder’s USDA license number, information about each animals’ cage or enclosure, and all marketing materials about specific animals. Ariz. Rev. Stat. § 44-1799.10(E).
These laws may or may not constitute the most effective solution to regulate the puppy mill industry—for one, penalties for violating these pet shop laws are largely monetary (Ohio Rev. Code Ann. § 956.20(C) provides a first-violation penalty of no more than $500; Conn. Gen. Stat. Ann. §22-354(b) sets a $1,000 fine for each violation; Ariz. Rev. Stat. § 44-1799.08(B) sets a $1,000 penalty for the first violation). What’s more, the ability of these laws to ensure the humane treatment of puppies is only as strong as the USDA’s ability to monitor its own licensees. Plus, given the increasing reliance on Internet sales, such laws pertaining only to brick and mortar pet stores may require a shift in focus toward the Internet marketplace.
D. Recent Legislation and Opposition
California will be the first state to pass a pet store ban if its Pet Rescue & Adoption Act (AB 485) is successful. AB 485 would prohibit pet stores from selling dogs, cats, or rabbits unless they were obtained from an animal shelter. Although more and more localities are passing their own ordinances similarly banning pet stores from purchasing commercially bred animals, California would be the first with a statewide ban.
Opposition to the bill has included concerns that AB 485 would threaten “to close ethical, highly-regulated retailers” as well as expose pet buyers to risks associated with “shelterabuse and disease” if pet retailers are “required to source from shelters that have no [USDA licensing and inspection].” PIJAC, PIJAC Urges California Assembly Members To Support Pets, Not Harmful Assembly Bill 485 (Apr. 18 2017), available at https://www.pijac.org/press/pijac-urges-california-assembly-members-support-pets-not-harmful-assembly-bill-485. Others view the bill as being founded on a “divide-and-conquer strategy” by “animal rights extremists” that “threatens the ability of people to make educated decisions about choosing the right pet for their lifestyle, and their opportunity to choose a purebred pet from a regulated source.” See Gov. Relations Dep’t, California Alert: AB 485 Scheduled For Committee Vote On Wed., May 17 – Express Opposition Now, AKC (May 12, 2017), available at http://www.akc.org/government-relations/legislative-alerts/ca-ab485-assm-approps-hearing-notice-5-12-17/; see also Phil M. Guirdy, Why Californians Need to Worry About AB 485, the “Pet Store” Bill, AKC (Apr. 21, 2017), available at http://www.akc.org/content/news/articles/why-californians-need-to-worry-about-ab-485-the-pet-store-bill/.
Earlier this year, similar opposition succeeded in urging New Jersey Governor Chris Christie to veto the Pet Purchase Protection Act (SB 3041). The part of the bill vetoed was the “three-strikes-you’re-out” provision, which would have imposed tougher penalties for breeders with multiple USDA violations. According to PIJAC: “Overriding the veto risks pet health, consumer choice, and jobs…” and “would have punished mom-and-pop retailers.” PIJAC, New Jersey Pet Care Experts Urge Senate To Protect Companion Animals (May 25, 2017), available at https://www.pijac.org/press/new-jersey-pet-care-experts-urge-senate-protect-companion-animals; Susan K. Livio, Christie Rejects Bill Regulating Puppy Mills, Saying it Goes 'Too Far', NJ.com (updated May 3, 2017), available at http://www.nj.com/politics/index.ssf/2017/05/christie_rejects_bill_that_goes_too_far_regulating.html.
Despite some setbacks, it appears as though this trend of legislation will continue. Even failed legislation serves to educate the public on the need for regulation, and a burgeoning number of localities to call attention to that same need maybe able to spark major legislative change in the near future.
V. Local Laws
Alongside state legislation, local laws addressing the commercial breeding industry have steadily gained traction. Beginning in 2014, there were 45 city ordinances banning puppy mill sales. At the end of 2015, there were 113. As of today, 239 jurisdictions across the United States have passed ordinances banning puppy mill sales to retail stores. See Bestfriends.org, Jurisdictions with Retail Pet Sale Bans (last visited July 15, 2017), available at http://bestfriends.org/resources/jurisdictions-retail-pet-sale-bans. The states leading the way in this regard are New Jersey with 104 local bans, Florida with 51, and California with 35.
Pet shop owners have opposed such ordinances, asserting that such types of bans are “impossible to comply” with. Kevin Coughlin, Crowd Debates Puppy Mill Ordinance At Morristown Council, Morristown Green (June 14, 2017), available at https://morristowngreen.com/2017/06/14/crowd-debates-puppy-mill-ordinance-at-morristown-council/.
A. Legal Challenges
In 2015, a Phoenix, Arizona City ordinance preventing the city’s pet shops from selling animals purchased from puppy mills survived U.S. and State Constitutional challenges, including alleged violations of the Commerce Clause and Equal Protection Clause. The Arizona District Court stated that the ordinance did not violate the dormant Commerce Clause because it was a “legitimate attempt to curb the problems associated with the inhumane treatment of animals and local dog homelessness and euthanasia,” and did not violate the Equal Protection Clause or Arizona’s Privileges or Immunities Clause because “by requiring pet stores to sell animals obtained from shelters instead of breeders, the ordinance could arguably reduce dog homelessness and euthanasia.” Puppies 'N Love v. City of Phoenix, 116 F. Supp. 3d 971, 980 (D. Ariz. 2015).
Later in 2015, New York City Local Laws requiring pet stores only buy dogs and cats from dealers with USDA Class A licenses and in good standing were challenged on Constitutional grounds by the New York Pet Welfare Association (NYPWA), a trade association comprised of pet stores, dog and cat breeders and dealers, veterinarians, and pet owners. This case was dismissed for failure to state a cause of action, and affirmed in 2017 by the U.S. Court of Appeals for the 2nd Circuit. On preemption grounds, the court stated that section 2145(b) of the AWA gave the Secretary of Agriculture explicit authority “to cooperate with local officials in carrying out the purposes of the AWA and of any state, local, or municipal legislation or ordinance on the same subject.” With regard to alleged violations of the dormant Commerce clause, the court stated that the local law imposed no incidental burdens on interstate commerce, and therefore could not “impose any that are clearly excessive in relation to its local benefits.” N.Y. Pet Welfare Ass'n v. City of New York, 850 F.3d 79, 83, 89, 92 (2d Cir. 2017).
These cases appear to indicate some wiggle room for local laws—for one, they reaffirm the limited preemptive authority of the AWA over state law. See N.Y. Pet Welfare Ass'n v. City of New York, 850 F.3d 79, 89 (2d Cir. 2017) (saying that the AWA’s “explicit grant of authority to the Secretary to cooperate with state officials carrying out state law makes it clear that Congress did not intend that the statute displace all state regulation of the field.”). Two, they show that local regulation of pet stores, while a statewide concern, is “capable of peaceful coexistence” with applicable state law. Puppies 'N Love v. City of Phx., 116 F. Supp. 3d 971, 999 (D. Ariz. 2015). Furthermore, these cases reveal that local ordinances have not had more than a de minimis effect on interstate commerce, and in fact have benefits that outweigh any costs. See Puppies 'N Love v. City of Phx., 116 F. Supp. 3d 971, 996 (D. Ariz. 2015) (“The Court cannot conclude that the de minimis burden imposed on interstate commerce by the Ordinance is "clearly excessive" when compared to this local benefit;” and see N.Y. Pet Welfare Ass'n v. City of New York, 850 F.3d 79, 92 (2d Cir. 2017) (finding that the local sourcing law had “no incidental burdens on interstate commerce,” and therefore “it cannot impose any that are clearly excessive in relation to its local benefits.”). All that said, these favorable decisions may bolster the already growing trend of local ordinances seeking to address the commercial breeding industry.
VI. Conclusion
Given that Congress making changes to the AWA itself appears exceedingly unlikely, animal welfare advocates contend that it is incumbent upon states and local governments to eliminate the market for puppy mill dogs. While most states have laws to improve upon the minimum care standards of the AWA, 16 states have not yet taken this step. Some states, such as California and New Jersey, are clearly taking the lead with respect to stricter legislation to stifle the market. However, several state attempts continue to face mounting political opposition. Thus, in the legal realm, the most effective solution appears to be a continuing of the efforts made by hundreds of localities prohibiting puppy mills from selling to pet stores.
Animal welfare advocates suggest that banning commercial breeders from selling to pet stores via local or even state measures only goes so far. Internet sales continue to be the largest source of revenue for commercial breeders, and even if puppy mills were eradicated from the U.S., consumers could still support the industry by purchasing from foreign breeders. Thus, states may wish to focus on diminishing the demand for commercially bred animals through education efforts—an endeavor taken on by animal welfare organizations that has proven successful. Indeed, seeing as the new administration appears to be moving towards even less aggressive enforcement of commercial breeder laws, it may be that state, local, and private efforts at reducing demand for commercially bred dogs will have the greatest effect on the industry.
Given this patchwork of laws of varying effectiveness, there is no governmentally imposed incentive to shutter the puppy mills. The economic forces of supply and demand that gave rise to the puppy mills may also be used to hasten their demise, and producing more for less loses its luster in the absence of an end consumer. It stands to reason that an educated consuming population will reduce the demand for puppies raised in puppy mills.