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.
- 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
- 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...
