Monday, December 15, 2014

Understand the animal rights/welfare movement's "half-a-loaf" problem (Part II)


By understanding the animal rights/welfare movement's "half-a-loaf" problem (Part II)

In Part I of this article we highlighted the dilemma faced by serious animal rights/welfare activists, especially those who recall Voltaire's famous observation that "the perfect is the enemy of the good" -- meaning that while awaiting the "perfect" in human affairs, "the good" often doesn't get done. Castration without anesthesia remains in Switzerland. Greyhound racing continues in Massachusetts [please note: this blog originally posted in 2008 when greyhound racing did exist in Massachusetts, but as of January 1, 2010, it no longer exists.] Farm animals can still be caged 24/7 in California.

While activists work toward "perfect" solutions, in Switzerland, Massachusetts, California, and elsewhere, "good" benefits that could have accrued for animals risk being lost because of opposition to proposed legislation.

ISAR was reminded of the "half-a-loaf" problem when we were asked to support anti-tethering legislation pending in Pennsylvania. (Tethering is the cruel practice of chaining a dog to a stationary object, thus severely restricting its freedom of movement.)

Should we have not supported the ameliorative proposed new legislation because in doing so we would be accepting the continued existence of certain still-allowed aspects of that cruel, indefensible practice even though the law would ameliorate some of the more egregious conditions under which tethered dogs live? In other words, should we have sought "the perfect" at the expense of the "good" while closing our eyes to the brutal reality that remained?

Or should ISAR and other organizations have supported the proposed legislation precisely because of the amelioration, ceasing to obtain "the perfect" in order to gain "the good"? In other words, should we have accepted the reality that "the good" meant reducing suffering, at the expense of "the perfect," which in a utopian world would be an outright prohibition of tethering in all of its torturous aspects?

Recall the concluding question in this article's Part I: "Better a half loaf than no bread?"

Well, if you're a dog chained to a stationary object whose entire universe consists of several square feet, primitive shelter, little human contact, and infrequent interaction with your own kind, the answer is easy. Ameliorate the suffering, now, today, and keep working to end it entirely.

This said, however, at every opportunity ISAR made it unmistakably clear that both as a moral and humane imperative we unequivocally oppose the practice of tethering, and that our support of the then-pending Pennsylvania legislation was not intended, nor should it have been construed as, ISAR's sanction, approval, or any other kind of endorsement of that cruel practice.

If ISAR had its way, Pennsylvania and every other state would immediately enact statutes making tethering of dogs illegal, with severe penalties for violation of the law.

To be continued

Monday, December 1, 2014

Understand the animal rights/welfare movement's "half-a-loaf" problem (Part I)


By understanding the animal rights/welfare movement's "half-a-loaf" problem (Part I)

For the past few decades the animal rights/welfare movement in the United States and abroad has been awash in proposed legislation designed to better the lives of companion animals.

But is it cause for rejoicing when seemingly pro-animal legislation actually does become law? Surprisingly, the answer may not always be an unqualified "yes" because of what ISAR characterizes as the challenging and pervasive problem of "half-a-loaf." As the old saying goes, is "half-a-loaf" really "better than none?"[1]

To begin answering the question, let's look at three examples which appeared within three months of each other several years ago.

The Swiss enacted a sweeping animal protection law. It included handling guidelines for cats, dogs, sheep, goats and horses. A six-hour time limit was required for the transportation of livestock. Piglets could not be castrated without anesthesia.

Massachusetts banned greyhound racing throughout the Commonwealth.

A California ballot initiative was approved that provided more living space to animals raised for human food: "Certain farm animals [shall] be allowed, for the majority of every day, to fully extend their limbs or wings, lie down, stand up and turn around."

How could anyone who cares about the rights of animals and desires they be not treated cruelly oppose such legislation?

But wait.

The Swiss law also allowed dairy farmers to keep their cattle tied up in stalls for 240 days of the 365 days in a year. Tie-stalls for horses were to be phased out, but not for five years. Zoo animals, such as rhinos, were allowed to be confined in small winter quarters. Wild animals were still permitted to be used in circuses.

The Massachusetts greyhound ban would not become effective for at least two years.

California's "living space" initiative gave farmers at least six years to shift to more humane animal production systems.

Many in the animal rights/welfare movement rightly considered these measures not to go far enough, largely because of the compromises made in order to get them enacted.

These committed activists believed that when such "mixed" laws[2] are proposed they should be fought. Their rationale is that enactment of such legislation, though useful in some respects, gives opponents of animal protection the ability to argue that "enough is enough" -- that the movement clamored for animal protection laws, they were enacted, and that's all the affected animals are entitled to, at least for years to come.

This absolutist position against mixed animal protections laws is arguably defensible, making for a hard choice: Wait for perfection while countless animals continue to suffer, or take what can be had when possible but continue fighting for perfection?

Better a half loaf than no bread?

To be continued

[1] The actual saying - "Better a half loaf than no bread" -- is attributable to John Heywood, c. 1497 -- c. 1580.

[2] By "mixed laws" ISAR means legislation containing pro-animal provisions together with others that do little or nothing to better the lives of animals -- or which are entirely silent on issues of animal abuse.

Friday, November 14, 2014

Demand that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part V)


By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part V)

The commercial retail sale of dogs and cats begins with their breeding of dogs in puppy mills and cats in kitten factories.  As to those infernal mass-production hell-holes, in ISAR's Anti-Breeding Statute Monograph we wrote:[1]

An elaboration of this sordid story of puppy mill and kitten factory horrors could fill many volumes, dramatizing conditions and practices which are immoral and inhumane no matter where they are found.  But for them to exist in the United States somehow seems worse. 

Being in the United States, however, a nation which prides itself on possessing high standards of humaneness (at least in certain respects), much more can be done to ameliorate the plight of the countless wretched animals captive in the [companion animal] trade . . . if only our legislators and political leaders will take the matter seriously and not, as they have repeatedly, say one thing but act differently.

For example, the related issues of animal cruelty and pet adoption were brought to national attention during the 2008 presidential election.  While campaigning, then-Senator Barack Obama replied to a question about animal welfare by stating, "I think how we treat our animals reflects how we treat each other.  And it's very important that we have a president who is mindful of the cruelty that is perpetrated on animals."[2]  The cited article states that in the book A Rare Breed of Love: The True Story of Baby and the Mission She Inspired to Help Dogs Everywhere, Obama specifically advocated pet adoption as a means to end puppy mills.  However, an examination of the book itself reveals that Obama actually made only a vague, general commitment to stop animal cruelty.  Obama was even photographed in front of the Lincoln Memorial holding "Baby," a puppy mill survivor . . . .[3]
However, despite [his] campaign promise to adopt [a] shelter dog, the President acquired a dog which had originated with a breeder.  The Vice-President, despite his earlier promise to adopt a shelter dog, obtained one from a Pennsylvania puppy mill -- one which had actually been cited for violations.[4]  Unfortunately, the cynicism of these two politicians regarding the humane treatment of animals is widespread through the executive, legislative and administrative branches of the American government and undercuts efforts to deal with the blight of puppy mills.

Wayne Pacelle, president and CEO of HSUS, has correctly articulated one of the reasons why puppy mills are a blight on 21st Century America: "[I]t's precisely because we are intelligent and powerful that we have responsibilities to these animals.  They are helpless before us, and they rely on our good conscience."  Pacelle continues, "[T]he terrible thing is the inhumane treatment of these animals at the puppy mills.  It's awful.  It's contributing to the larger pet overpopulation crisis, which is resulting in over 4 million dogs and cats being killed every year."[5]

No one can dispute that government has a moral and political obligation to protect children from harm. 

At common law, before the enactment of modern statutes, it was the consistent policy of government to look after the interests of children (although the form and extent of that protection often left much to be desired).  Laws protected children from their own folly and improvidence, and from abuse by adults.  From the time of their birth, children were considered wards of the state. These common law principles have been enacted into statutes in every state in America. Modern child-protection laws reflect governmental humane concerns with physical and mental wellbeing, neglect, abuse, food, clothing, shelter, education, vagrancy, capacity to contract, lack of capacity to consent to sexual acts, and much more.

The principle underling all modern child protection legislation unites the cause of children's rights with the parallel cause of animal rights, and [seeks to end] the immoral and inhumane treatment of [companion animals].

Government intervenes to prevent or remedy a child's fear, hunger, pain, suffering and abuse because children are incapable, mentally and physically, of protecting themselves from these conditions.  So, too, are companion animals.  Like children, they are alive but defenseless.  Like children, they can experience fear, hunger, pain, suffering and abuse.  Like children, government has a duty to protect them (though the line-drawing about which animals should be protected, in what manner, and to what extent continues to bedevil everyone from legislators to moral philosophers . . . .).

This proposition -- that government has an obligation to protect animals, at least some, in some manner, and at least to some extent -- is not novel. The fact is that existing animal protection legislation in every state and at the federal level is an explicit recognition by government of its responsibility.

The genesis of that moral and legal responsibility, and the ensuing legislation, is not widely known.

Lewis Gompertz (1779-1865) was a founding member of the British Society for the Prevention of Cruelty to Animals (later the Royal Society for the Prevention of Cruelty to Animals), and probably the first public person in modern times to opine in the English language about the rights of animals.

In his Moral Inquiries into the Situation of Man and of Brutes Gompertz wrote that:

The dreadful situation of the brute creation, particularly of those which have been domesticated, claims our strictest attention.[[6]]  * * * Who can dispute the inhumanity of the sport of hunting, of pursuing a poor defenseless creature for mere amusement, till it becomes exhausted by terror and fatigue, and of then causing it to be torn to pieces by a pack of dogs?  From what kind of instruction can men, and even women, imbibe such principles as these?  How is it possible they can justify it?  And what can their pleasure in it consist of?  Is it not solely in the agony they produce to the animal?  They will pretend that it is not, and try to make us believe so too, that it is merely in the pursuit.  But what is the object of their pursuit?  Is there any other than to torment and destroy?[7]

It seems that the crime of cruelty proceeds greatly from improper education. Subjects of moral inquiry are too often chased from the attention of youth, from a false idea that they are mere chimeras too difficult to enter into, that they only serve to confound us and to lead us into disputes, which never come to a conclusion; that they cause us to fall into eccentricities, and unfit us for all the offices of life, and at last drive us into downright madness.[8]

Forbid it that we should give assent to such tenets as these!  That we should suffer for one moment our reason to be veiled by such delusions!  But on the contrary let us hold fast every idea, and cherish every glimmering of such kind of knowledge, as that which shall enable us to distinguish between right and wrong, what is due to one individual-what to another.[9]

Some two hundred years later, Gompertz's words eloquently remind us that cruelty to animals continues to demand a moral inquiry, including asking and answering questions about the consequences of dog (and other companion animal) overpopulation.

Anyone who looks closely at how animals are treated in America today cannot help being confused.  Hunters cherish their hunting dogs, but kill and trap wildlife without conscience or regret.  Stylish women coddle furry house pets, but think nothing of wearing the skins of animals.  At animal farms and petting zoos, parents introduce their children to a world of innocence and beauty, but see no harm in exposing them to circus acts which degrade animals, and to rodeos, which brutalize them.
The law, too, is contradictory.  It is legal to butcher livestock for food, but not to cause them to suffer during slaughter (although federal law contains an exception: "ritually" slaughtered cattle are allowed to suffer).  It is legal to kill chickens for the pot, but not to allow fighting cocks to kill each other.  Animals can be used for painful laboratory experiments, but they must be exercised and their cages must be kept clean.  Kittens can be drowned, but not abandoned.  Certain types of birds are protected, but others are annihilated.  With a permit, one can own a falcon, and with a falcon, one can hunt rabbits; but rabbits cannot be dyed rainbow colors and sold at Easter Time. 
It is not surprising that countless contradictions exist today in man's relationship to animals, because never has there been a consistent humane principle to guide him in dealing with those dependent creatures who share his planet.  What is surprising is that animals have been accorded any decent treatment at all, considering the overwhelmingly dominant attitude, from the earliest of times, that animals could be used, abused, and even tormented, at the utterly capricious will of man.  Absent from the history of ideas has been even a semi-plausible notion to the contrary, let alone a defensible, fully integrated theory of animal rights.
The problem of animal rights antedated Lewis Gompertz by thousands of years, and begins with the Book of Genesis[10]: "And God said: Let us make our image, after our likeness; and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth."  Later, after the flood, ". . .  Noah builded an altar unto the Lord; and took of every clean beast, and of every clean fowl, and offered burnt offerings on the altar, and the Lord smelled the sweet savour . . . ."[11]  To express his gratitude, "God . . . blessed Noah and his sons and said unto them: Be fruitful, and multiply, and replenish the earth. And the fear of you and the dread of you shall be upon every beast of the earth, and upon every fowl of the air, and upon all wherewith the ground teemeth, and upon the fishes of the sea; into your hand are they delivered. Every moving thing that liveth shall be for food for you; as the green herb have I given you all."[12]
In short, the view expressed by scripture was that animals were put on earth by God to be used by man.
The predominant Greek attitude, as expressed by its most influential philosopher, Aristotle, was no better: ". . . we may infer that, after the birth of animals, plants exist for their sake, and that the other animals exist for the sake of man, the tame for use and food, the wild, if not all, at least the greater part of them, for food, and for the provision of clothing and various instruments. Now if nature makes nothing incomplete . . . and nothing in vain, the inference must be that she has made all animals for the sake of man."[13]
As to the attitude of the Romans, one need only recall history's bloody forerunner to today's bullfights and rodeos -- the Coliseum -- where no distinction was made between  animal and human victims.
When pagan Rome gave way to Christianity, men may have fared better, but Christian charity was not extended to animals. Indeed, early Christian thought seems obediently to echo the Genesis thesis: animals exist merely to serve man's needs.
Hundreds of years passed, with no discernible change in attitudes toward animals. With the advent of St. Thomas Aquinas in the 1200s, the concept of animal servitude was reinforced.  Aquinas, drawing on the Old Testament and on Aristotle, not surprisingly concluded that since all things are given by God to the power of man, the former's dominion over animals is complete.
Aquinas' theory of dominion says nothing, one way or the other, about the nature of the animals being dominated, but renowned Christian philosopher-mathematician Rene Descartes had a great deal to say on that subject.  He held that animals were automatons -- literally.  He asserted that lacking a Christian "soul," they possessed no consciousness.  Lacking a consciousness, he concluded, they experienced neither pleasure nor pain.  His conclusion was a convenient one: It allowed him to rationalize dissection of unanesthetized living creatures. 
Although Descartes's hideous experiments purportedly were done to advance the knowledge of anatomy, they properly earn him a place in history as the Seventeenth Century soul mate of Mengele, the Nazi concentration camp doctor who experimented on human beings.
Although the existence of the dominant Genesis-Aristotle-Descartes view of animals, and the resultant lack of an appropriate theory of animal rights, is reason enough to explain more than fifteen-hundred years of man's maltreatment of animals, there is a related explanation: during this same period there was no appropriate theory of the rights of man
From the days of the Pharaohs to the threshold of modern philosophy in the 1600s, man's status fell into one of two categories: oppressor or oppressed.  The tyrants of Egypt had much in common with the despots of feudal Europe; the Hebrew slaves who built the pyramids, with the serfs who tilled their lords' estates.  It is not surprising that cultures which regarded some men as other men's chattels would treat animals, at best, as plants, and, at worst, as inanimate objects. Accordingly, when man's lot improved, the lot of animals also improved, albeit very slightly.
The historical turning-point for the Rights of Man came with the 18th Century's Age of Enlightenment.  It was a time of Adam Smith and laissez-faire capitalism, of John Locke, and of Thomas Jefferson's Declaration of Independence.  Man was recognized, at least by some, to possess inalienable rights, among them the right to life, liberty and the pursuit of happiness.  By no means had the world's ideas about liberty changed, but a fresh wind was blowing for man, one which would soon lead to the creation of a new Nation -- one, as Lincoln would say nearly a century later, "conceived in liberty and dedicated to the proposition that all men are created equal." Surely, it is more than coincidence that at about the same time, thinkers like Voltaire, Rousseau, Pope, and Bentham were questioning man's maltreatment of animals.
Yet, despite these questions, for another two centuries the lot of animals did not improve noticeably even in the civilized world, because the attitudes of most people remained rooted in the ideas of Genesis, Aristotle, and Descartes.
Before change could come, these ideas had to be discarded.  Although it was a long gestation, finally, in the last quarter-century, a handful of philosophers, scientists, theologians, and lawyers -- among them Brigid Brophy, Andrew Linzey, Richard Ryder, Peter Singer, Gary Francione, and Steven M. Wise -- have launched broadside attacks on the basic ideas which for so long have served to rationalize man's brutalization of the only other living species with whom he shares this planet.
But as important as that is, merely exposing fallacies and immoralities does not itself constitute propounding anything affirmative.  Recognizing this, today's animal rights activists have begun to build that affirmative, defensible theory of animal rights.
An inevitable result of this growing inquiry into the rights of animals has been scrutiny of various aspects of the abuse of companion animals generally and of dogs [and cats] in particular -- a particularly monstrous example of which are puppy mills [and kitten factories].
That scrutiny has led to some successes in society's efforts to alleviate, though not nearly eliminate, the puppy mill [and cat factory] abuse.
For example, to HSUS's great credit in recent years it conducted several investigations into U.S. puppy mills.  It campaigned, and filed a class action lawsuit against, Petland, the largest retailer of dogs acquired from puppy mills.[14] HSUS lobbied for an amendment to the Farm Bill that bans the importation of dogs from foreign puppy mills. And numerous dogs were rescued from puppy mills throughout the country by HSUS itself, and through its efforts.[15]

Public awareness was also heightened through several puppy mill exposures featured on such television shows as Oprah Winfrey, featuring Main Line Animal Rescue (an organization that has rescued over 5,000 animals from puppy mills),[16] Animal Planet featuring Philadelphia's SPCA,[17] and National Geographic featuring Cesar Millan (the "Dog Whisperer").[18]

All well and good. But after all these good works and many others by countless people from every walk of life, the moral question remains: By what right can humans treat companion animals -- or for that matter, any animals -- as if they were soulless automata, existing solely for man's pleasure?


How to contact APHIS to demand prohibition of retail pet store sale of companion animals:

Mailing Address:
4700 River Road, Unit 84
Riverdale, MD 20737-1234
Phone: (301) 851-3751
Fax: (301) 734-4978

Western Region
Mailing Address:
2150 Centre Ave.
Building B, Mailstop 3W11
Fort Collins, CO 80526-8117
Phone: (970) 494-7478
Fax: (970) 494-7461

Eastern Region 
Mailing Address:
920 Main Campus Drive
Suite 200
Raleigh, NC 27606-5210
Phone: (919) 855-7100
Fax: (919) 855-7123
Center for Animal Welfare
Mailing Address:
Beacon Facility mailstop 1180
9240 Troost Ave
Kansas City, MO 64131
Phone: 816-737-4200

Please copy ISAR with all letters, emails, and faxes.


All the following text though not blocked nor containing quotation marks is taken from that Monograph.
Author Who Featured Obama in a Book About Adoption Speaks Out About His Broken Pledge,, available at 

Id.  The USDA's Bureau of Dog Law Enforcement warned the puppy mill's owner about drainage and maintenance violations during an inspection in Jan. 2009, just after Biden had purchased the six-week-old puppy.  During a follow up inspection, investigators found "the conditions had not improved."

5 Investigating Puppy Mills, Oprah, available at   

6 Lewis Gompertz, Moral Inquiries On The Situation Of Man And Brutes, Fontwell Sussex: Centauer Press, Ltd, 1992, 22.
Gompertz, 29.
Gompertz, 30.
Gompertz, 30.  Emphasis in original.

10 Genesis 1:24-28.
11 Genesis 8:20-21.
12 Genesis 9:1-3.
13 Aristotle, Politics, Bk I, Ch. 8, Random House, 1941, 1137.
14 Regrettably, as of Aug. 9, 2009, HSUS's complaint was dismissed.  See Judge Dismisses Lawsuit Against Petland and Hunte - For Now, Mar. 21, 2009, available at
15 Why Must Puppy Mill Regulations Raise Hackles?, HSUS, May 6, 2009, available at
16 Investigating Puppy Mills,, available at .
17 Inside a Puppy Mill, Animal Planet, available at .
18 Inside Puppy Mills, National Geographic, available at  Millan is a dog trainer, TV host of the "Dog Whisperer" (seen in 80-plus countries), has received two Emmy nominations, and is a best-selling author.

Friday, October 31, 2014

Demand that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part IV)


By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part IV)

Lest there be any mistake about the foundational intention of ISAR's Model Statute Prohibiting Retail Sale of Dogs and Cats, we here state it categorically:
Having concluded that overpopulation of dogs and cats and the attendant social and other problems it engenders will not be solved by mere regulation of puppy mills, kitten factories, breeders, facilitators and commercial retail sellers, ISAR supports an outright prohibition on: (1) the commercial retail sale of dogs and cats within the jurisdictions enacting the prohibition, and (2) the purchase by persons within those jurisdictions of cats or dogs bred in a manner inconsistent with the provisions of ISAR's Anti-Breeding Statute no matter where bred.
As we have explained in the Memorandum, among the major faults of virtually all animal protection legislation is its failure to set forth explicitly the fundamental legislative premises upon which the statutes and ordinances are based. ISAR has sought to remedy that omission by making clear in our Model Statute exactly upon what premises ISAR's proposed legislation rests.
Again, lest there be any misunderstanding, having recognized that even the most stringent regulatory laws (which are few and far between) have made no noticeable impact on the companion animal overpopulation tragedy, ISAR now seeks to greatly reduce the flow of dogs and cats through the production pipeline by closing off their sales at the point of destination. Not just at pet stores, but at all commercial retail sales points.
As a matter of principle, ISAR deplores the commercial, and most other, breeding of dogs and cats. We have hoped that until the day comes when ISAR's view of how to deal with the overpopulation problem is accepted as a moral imperative, and is translated into law subject to virtually no exceptions, we would have to be content with the statutory provisions set forth in our other monographs -- if they were rigorously and intelligently enforced.
Because ISAR no longer believes that outcome is likely, as a matter of principle and policy we now support an outright prohibition on commercial retail sales of dogs and cats.
In ISAR's monograph "The Policy and Law of Mandatory Spay/Neuter" we wrote that:
Let's assume that mandatory spay/neuter laws are enacted by every state in the United States, in the real world there will be statutory exceptions, some people will violate the law, underground breeding will proliferate, foreign sources of companion animals will attempt to fill the void.

In other words, while mandatory spay/neuter laws will surely reduce the population of unwanted companion animals in the United States (and possibly contribute to a widespread national No-Kill policy), in the harshness of the real world the problem of too many dogs and cats will continue to exist no matter what.

This sad fact must be taken into account when government considers mandatory spay/neuter legislation. Those laws must be grounded not in hope, sentiment, or a benevolent opinion of mankind, but rather in the world as we find it. A world where companion animals are too often thought of as virtually inanimate objects, property to be used and abused by humans.

It is in this context that the subject of mandatory spay/neuter must be considered.

The relevance of our earlier observation for this Model Statute is ISAR readily acknowledges that a ban on the commercial retail sale of dogs and cats will never be enacted federally, let alone by every state. But even if one was, "there will be statutory exceptions, some people will violate the law, underground breeding will proliferate, foreign sources of companion animals will attempt to fill the void."

So why has ISAR devoted substantial research and other resources to the preparation of the Monograph and Model Statute?

Primarily for two reasons, policy and practicality.

As to policy, for decades -- through our legal, legislative and humane education efforts -- ISAR has been working to solve the dog and cat overpopulation problem.

This Model Statute is yet another means of advancing that policy goal.

As to practicality, we believe that a growing trend of village, town, city, county and even state West Hollywood-like statutes and ordinances, while not ending the commercial retail sale of dogs and cats, will make it more difficult for casual purchasers to acquire them. For example, despite the weaknesses in the West Hollywood ordinance examined at length in the Memorandum, the casual buyer of a dog or cat must now go elsewhere to purchase one. If Los Angeles County had a no-sale statute, buyers would have to go elsewhere. And so on. [1]

The Statute Findings

Whereas, there have been and are today within the United States countless unwanted dogs and cats lacking permanent homes, that are a major cause of dog and cat overpopulation; and

Whereas, a major source of such dogs and cats are commercial breeders who operate puppy mills and kitten factories, and other breeders; and

Whereas, the treatment of dogs and cats and their physical conditions at the hands of breeders, puppy mills, kitten factories, facilitators and commercial retail sales outlets are a matter of political, economic, legal and moral concern affecting the public, health, safety, welfare, and environment; and

Whereas, although some of the dogs and cats produced by breeders, puppy mills, kitten factories and elsewhere, and sold by facilitators and commercial retail sales outlets, may be healthy, many are not; and

Whereas, many of the dogs and cats produced by breeders, puppy mills, kitten factories and elsewhere, and sold by facilitators and commercial retail sales outlets have an adverse impact on the public health, safety, welfare, morals and environment; and

Whereas, the social impact of these dogs includes, but is not limited to, the transmission of disease, the injury and sometimes death of humans and other animals and the drain on public finances; and

Whereas, many of these animals and others from random sources are eventually euthanized by shelters, humane societies, and similar organizations; and

Whereas, euthanizing dogs and cats except for bona fide medical reasons is inhumane and abhorrent to the people of the United States; and
Whereas, euthanizing dogs and cats except for bona fide medical reasons is not an effective, economical, humane, or ethical solution to the problem of dog and cat overpopulation; and

Whereas, one of the most effective, economical, humane, and ethical solutions to the problem of dog and cat overpopulation is to substantially reduce, if not entirely eliminate, their breeding, facilitation and their commercial retail sale without which there would be substantially less breeding; and

Whereas, such reduction or elimination, especially of commercial retail sales, will protect and advance the public health, safety, welfare, and environmental interests of its citizens; and

Whereas, existing state and federal laws merely regulate, but do not prohibit, dog and cat breeding and pet stores and other places that sell dogs and cats. These include the Lockyer-Polanco-Farr Pet Protection Act (California Health and Safety Code Section 122125 et seq.); the Polanco-Lockyer Pet Breeder Warranty Act (California Health and Safety Code Section 122045 et seq.); the Pet Store Animal Care Act (California Health and Safety Code Section 122350 et seq.); and the Animal Welfare Act ("AWA") (7 U.S.C. Section 2131 et seq.); and

Whereas, the Albuquerque and West Hollywood ordinances are mere regulation but not prohibition; and
Whereas, the Animal Welfare Act is mere regulation but not prohibition; and

Whereas, it is commonly known that American consumers purchase dogs and cats from commercial retail sales outlets that they believe to be genetically sound and healthy, but when in reality the animals often face an array of health problems including communicable diseases or genetic disorders that become apparent immediately after sale or that do not surface until several years later, all of which lead to costly veterinary bills and distress to consumers; and

Whereas, review of state and USDA inspection reports from more than one hundred breeders who sold animals to the nation's largest commercial retail pet store chain revealed that more than sixty percent of the inspections found serious violations of basic animal care standards, including sick or dead animals in their cages, lack of proper veterinary care, inadequate shelter from weather conditions, and dirty, unkempt cages that were too small; and

Whereas, a 2005 undercover investigation of California commercial retail sales outlets revealed that nearly half of the premises visited displayed animals that showed visible signs of illness, injury, or neglect, and nearly half of the premises also sold animals showing clear symptoms of psychological distress; and

Whereas, according to The Humane Society of the United States, hundreds of thousands of dogs and cats in the United States have been housed and bred at substandard breeding facilities known as "puppy mills" or "kitten factories" which mass-produce animals for sale to the public through commercial retail sales outlets. Because of the lack of proper animal husbandry practices at these facilities, animals born and raised there are more likely to have genetic disorders and lack adequate socialization, while breeding animals utilized there are subject to inhumane housing conditions and are indiscriminately disposed of when they reach the end of their profitable breeding cycle; and

Whereas, according to USDA inspection reports, some additional documented problems found at puppy mills include: (1) sanitation problems leading to infectious disease; (2) large numbers of animals overcrowded in cages; (3) lack of proper veterinary care for severe illnesses and injuries; (4) lack of protection from harsh weather conditions; and (5) lack of adequate food and water, and similar problems are found at kitty factories; and
Whereas, while "puppy mill" puppies and "kitten factory" kittens were, for example, being sold in commercial retail sales outlets such as pet stores throughout the metropolitan Los Angeles area, in 2009 alone more than thirty-five thousand dogs and sixty-seven thousand cats were euthanized in city and county shelters; and

Whereas, while the legislature recognizes that not all dogs and cats sold in commercial retail outlets such as pet stores are products of inhumane breeding conditions and does not classify every commercial breeder selling dogs or cats to commercial retail sales outlets such as pet stores as a "puppy mill" or "kitten factory," it is the legislature's finding that puppy mills and kitten factories continue to exist in large part because of public demand and the ease with which dogs and cats can be purchased from commercial retail sales outlets such as pet stores; and

Whereas, the legislature finds that the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction adds to overpopulation and all of its unacceptable consequences, and is also inconsistent with the legislature's goal of reducing the number of unwanted dogs and cats, and the principle of animal protection; and

Whereas, the legislature believes that eliminating the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction is a matter of political, economic, legal and moral concern affecting the public, health, safety, welfare, morals and environment and will promote humane awareness of the dog and cat overpopulation problem and, in turn, will foster a more humane environment in this jurisdiction; and

Whereas, the legislature believes also that elimination of the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction will also encourage consumers to adopt dogs and cats from shelters, thereby saving animals' lives and reducing the cost to the public of sheltering animals;


Commercial retail sale of dogs and cats prohibited.

A. Definitions.

For purposes of this statute the following definitions shall apply: 
  • "Animal shelter": a municipal or related public animal shelter or duly incorporated nonprofit organization devoted to the rescue, care and adoption of stray, abandoned or surrendered animals, and which does not breed animals.
  • "Commercial": "relating to the buying, selling, or barter of dogs and cats in return for a monetary or non-monetary benefit."
  • "Retail": "the selling of dogs and cats directly to purchasers."
  • "Sale": "the transfer of ownership of dogs and cats for monetary or other consideration."
  • "Seller": "any person or legal entity that makes a sale."
  •  "Outlet": "the place where, or through the means of which, a retail sale occurs."
  • "Purchaser": "any person or legal entity that is the recipient of a sale."
  • "Breeder": "any person who, or legal entity which, intentionally, recklessly or negligently causes or allows a female dog or cat to be inseminated by, respectively, a male canine or feline."
  • "Mill": "a place where at the same time more than three female dogs or cats are kept whose sole or major purpose is producing puppies or kittens for sale.
  • "Facilitator": "any person or legal entity, not a breeder, seller, outlet or purchaser, as defined herein, who acts as a broker, dealer, wholesaler, agent, bundler, middleman or in any similar role in the sale, purchase, trade, auction, or other transfer of the ownership of dogs or cats, whether or not such animals are in the custody or control of the facilitator at the time of transfer."  
B. Prohibition.

1. No commercial retail sales outlet shall consummate a sale of dogs or cats in this jurisdiction on and after the effective date of this statute.

2. On and after the effective of this statute no person within this jurisdiction shall purchase a dog or cat from outside this jurisdiction which has been bred in a mill.

3. Every purchaser of a dog or cat in accordance with Section 2 above shall produce for inspection by, and to the satisfaction of, animal control or similar authority a sworn written statement provided by the breeder and facilitator containing the following information: a) the name and address of the breeder and facilitator; b) when and where the dog or cat was bred; c) its general state of health when sold.

C. Existing commercial retail sales outlets. Commercial retail sales outlets existing as of the effective date of this statute may not consummate sales of dogs and cats more than 30 days thereafter.

D. Exemptions.

This statute does not apply to:

1. The sale, barter, adoption, or gift of a dog or cat made necessary because its owner can no longer care for it.

2. Surrender of a dog or cat to a publicly operated animal control facility, authorized animal shelter, or authorized private humane, rescue or similar organization.

3. Dogs or cats in the legal possession of a publicly operated animal control facility or animal shelter or duly authorized private humane, rescue or similar organization.

E. Adoption of Shelter and Rescue Animals.

Nothing in this law shall prevent an outlet that does not sell dogs or cats or other mammals from providing temporary weekend space and appropriate humane and temporary care for dogs and cats legally possessed by a publicly operated animal control facility or animal shelter or duly authorized private humane, rescue or similar organization for the sole purpose of offering such dogs and cats for adoption by the public.

F. Penalties.

1. First violation of this statute shall be punished by a fine of $1,000 per dog or cat sold or purchased.

2. Each subsequent violation of this statute shall be punished by a fine of $2,000 per dog or cat sold or purchased.

3. The fifth violation of this statute shall be punished by a fine of $5,000 per dog or cat sold or purchased, up to six months in jail, or both.

G. Separability clause.

If any provision of this statute shall be held unenforceable, the remaining parts thereof shall survive.

H. Effective date.

This statute shall become effective as provided by law.

For too many people, including some in the animal protection movement and bureaucrats at USDA and APHIS, the phenomenon of companion animal overpopulation in the United States caused largely by breeding is a mere "practical" problem to be dealt with in a "practical" way.

On the other hand, ISAR has always seen the problem as a moral one, and that the commercial retail sale of companion animals raises serious moral questions. They are addressed in Part V. 

We are using the West Hollywood ordinance as the template for this Model Statute, and making such changes as are necessary to correct the deficiencies in that law, as explained at length in the Memorandum.

Wednesday, October 15, 2014

Demand that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part III)


By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part III)

A major defect in many animal protection statutes is that crucial terms are ill-defined, or not defined at all.  This failure leads to ambiguity, unavoidable litigation, lack of enforcement, and other problems undermining or defeating the goals the legislation was enacted to achieve.
Hence, for purposes of ISAR's anti-breeding Monograph and our "Model Statute Prohibiting Commercial Retail Sales of Dogs and Cats" (hereafter "Model Statute"), we employed the following definitions:  
  • "Commercial": "relating to the buying, selling, or barter of dogs and cats in return for a monetary or non-monetary benefit."
  • "Retail": "the selling of dogs and cats directly to purchasers."[1]
  • "Sale": "the transfer of ownership of dogs and cats for monetary or other consideration."
  • "Seller": "any person or legal entity that makes a sale."
  • "Outlet": "the place where, or through the means of which, a retail sale occurs."
  • "Purchaser": "any person or legal entity that is the recipient of a sale."
  • "Breeder": "any person who, or legal entity which, intentionally, recklessly or negligently causes or allows a female dog or cat to be inseminated by, respectively, a male canine or feline."[2]
  • "Mill": "a place where at the same time more than three female dogs or cats are kept whose sole or major purpose is producing puppies or kittens for sale."[3]
  • "Facilitator": "any person or legal entity, not a breeder, seller, outlet or purchaser, as defined herein, who acts as a broker, dealer, wholesaler, agent, bundler, middleman or in any similar role in the sale, purchase, trade, auction, or other transfer of the ownership of dogs or cats, whether or not such animals are in the custody or control of the facilitator at the time of transfer."[4]
ISAR published our Anti-Breeding Statute in 2009.  In our Introduction we wrote:
While ISAR's [Anti-Breeding] Statute applies to all breeders, it contains certain provisions aimed specifically at the horrors of mills because they are, by far, the most inhumane kind of breeding that exists today in the United States and elsewhere in the world.
Puppy mills, however, are only the first stage in the mass production and sale of dogs.  Next come the facilitators, followed by the commercial retailers who sell to the public.
That public, however, [usually] has little or no [information] just how immoral and inhumane are certain aspects of the business of commercially producing and selling puppies and adult dogs [and kittens and adult cats] as if they were inanimate objects, no different from sausages.
Not only is the factory-like commercial production and sale of dogs [and cats] by itself immoral and inhumane, the business is a leading cause of the nationwide canine [and feline] overpopulation problem. That problem, in turn, has an adverse impact not only on the animals themselves, but also on society at large.  Overpopulation of dogs [and cats] has severe economic, social, political, financial, health, environmental and other consequences which are well-documented and not debatable.
Accordingly, by severely reducing the numbers of dogs [and cats] produced by breeders, brokered by facilitators, and sold by commercial retailers, the related problems of immorality, inhumaneness and overpopulation could be dealt a serious blow.

Regrettably, however, even the most aggressive educational efforts by the animal protection movement have not been powerful enough to put sufficient pressure on breeders, facilitators and commercial retailers to reduce voluntarily their production and sales of dogs, let alone to drive them out of business altogether.
That said, however, there is a way in which production, trafficking and sale of dogs [and cats] can be greatly reduced -- a way in which puppy mill producers, facilitators and commercial retail sellers of dogs [and cats] could virtually be put out of business.
How, then, to accomplish this worthy goal?
The short answer -- which is developed at length in this Monograph [containing ISAR's Anti-Breeding Statute] -- is through strict administrative regulation of breeders, facilitators and commercial retail sellers, coupled with harsh penalty and generous "standing to sue" provisions.

As we made clear in that Monograph and Anti-Breeding Statute, ISAR's strict, even extreme "regulation" of breeders, facilitators and retail sellers was designed to be a virtual de facto prohibition of dealing in dogs and cats.  We wrote:
Preface to ISAR's [Anti-Breeding Statute]

The Humane Society of the United States suggests that an acceptable statute regulating a puppy breeding facility is one which
applies to all breeding operations with animals or animal sales numbering over a specified threshold; requires a licensing fee and pre-inspection; includes routine, unannounced inspections at least twice yearly; is enforced by an agency with adequate funding and properly trained and tested staff; rotates inspectors to cover different areas of the state; and is equipped with strong penalties when facilities are in repeated non-compliance, including but not limited to cease and desist orders.[5]
While these requirements impose conditions and behavior which are better than those found today in most, if not all, statutes, implicit in them are two premises which ISAR categorically rejects: (1) that indiscriminate breeding of dogs [and cats] is morally acceptable so long as it is moderately ("humanely"!?) regulated, and (2) that through such "moderate" regulation the treatment of dog [and cat] "breeding machines" can be made morally and humanely tolerable.
If another of  ISAR's monographs The Policy, Law and Morality of Mandatory Spay/Neuter, and Chapters 1, 2 and 3 of [our Anti-Breeding] monograph teach anything, they speak loudly for the proposition that there is an intractable dog and cat overpopulation problem, that the only feasible way to alleviate it today is by mandatory spay/neuter and severe regulation of breeders, facilitators and commercial retail sales outlets, and that legislation seeking to deal with the problem must be strict, comprehensive, loophole-free, and without the kinds of compromises that gut the few statutes which have been enacted and others that are now in the legislative pipelines.
In the end, dealing effectively with the breeder-facilitator-commercial retail sales outlet situation, and the dog [and cat] overpopulation problem it so greatly contributes to, is an either/or choice.
Either the dog [and cat] breeding, facilitating and sales valve is turned off almost completely, or useless and counterproductive legislative efforts will perpetuate the charade that something constructive is being done while countless millions of hapless prisoner dogs [and cats] continue to be bred, born, traumatized, abused, killed, and incinerated-and while figuratively, and often literally, our land is suffused with their wind-borne ashes.

In ISAR's proposed [Anti-Breeding] Statute, we have made the "either" choice: ISAR proposes to turn off almost completely the dog [and cat] breeding, facilitating and commercial retail selling outlet valve, and in so doing see the dog [and cat] overpopulation problem substantially ameliorated.
Before presenting the annotated text of ISAR's proposed [Anti-Breeding] Statute, several important antecedent points have to be made.
First.  ISAR realizes that its proposed [Anti-Breeding] Statute far exceeds the prohibitions on breeding, facilitation and sales which appear in other animal protection laws, actual and proposed. ISAR has staked out its extreme position because our organization deeply believes that only very strict regulatory laws will achieve the stated goal, and if there are to be necessary compromises they must be as few, narrow, and morally and humanely defensible as possible.
Second.  ISAR acknowledges that even if its proposed [Anti-Breeding] Statute were to be adopted by the federal government, or in a slightly different form by every state in America, there would still be unwanted dogs [and cats]. ISAR believes, however, that if its [Anti-Breeding] Statute accomplishes its intended purpose there would be adoptive homes for those far fewer dogs [and cats].  (In this connection, see ISAR's blog: Redemption: The Myth of Pet Overpopulation in America by Nathan J. Winograd).
Third.  ISAR believes that while Americans have the right to enjoy the companionship and services of dogs [and cats] of their choosing, no one has either the moral or legal right to be an accessory to the tortured lives and ultimate fates that await the living reproductive machines of most breeders and all puppy [and cat] mills, and many of their offspring.
Fourth.  As Chapter 2 proves, there are neither constitutional nor legal impediments to even the most restrictive breeding and sales laws. Attacks on them in court will fail if the statutes are drafted carefully and defended intelligently.
Fifth.  Readers of ISAR's [Anti-Breeding] Statute may be surprised at its comparative simplicity. There are several reasons for its comparative brevity. Since ISAR's [Anti-Breeding] Statute could be enacted on the federal level, and thus be uniformly applicable nationwide, no provisions for state or local involvement are necessary.  However, absent Congressional enactment, the statute could easily be adapted for, and enacted on, a state level.  Even then, there would be no need for local involvement.[6]
Sixth.  ISAR's [Anti-Breeding] Statute is not the last word on the subject, neither from [its own text,] nor [from] any one person or other organization who can offer constructive suggestions -- so long as others recognize the underlying premise upon which ISAR's proposal is based: turning off almost completely the dog [and cat] breeding, facilitating and commercial retail sales outlet valve [emphasis in original]. That is ISAR's goal, and that is what it has endeavored to codify in the [Anti-Breeding] Statute.
Seventh.  ISAR is well aware that our statute will be unpopular not only with dog breeders, facilitators and commercial retail sales outlets, aiders and abettors, and others complicit in the dog-trade, but also with other animal protection organizations.  So be it!
ISAR's pessimistic 2009 prediction proved correct, doubtless because our Anti-Breeding Statute challenged the root premises of commercial production of dogs and cats, from their conception to their sale at retail.
Many individuals and organizations who should have known better, and from whom we expected support, opposed ISAR's Anti-Breeding Statute.  Because the nature and quality of their objections lacked consistency, let alone substance, they will not be discussed here.
On the other hand, since 2009 some of ISAR's supporters argued for an outright ban on retail sales of dogs and cats, and have sought ISAR's help in making the argument in support of that goal.
Accordingly, our Monograph and ISAR's "Model Statute Prohibiting Retail Sales of Dogs and Cats," is a brief in support of that goal.[7]
That goal has become even more important because on November 18, 2013 a new rule of the United States Department of Agriculture, Animal and Plant Health Inspection Service became final. According to APHIS
USDA has changed the Animal Welfare Act regulations by revising its definition of retail pet store in order to keep pace with the modern marketplace and to ensure that animals sold via the Internet or other non-traditional methods receive humane care and treatment. USDA Animal Care has posted several materials on this webpage in an effort to provide all interested parties with pertinent information. We encourage you to please read through these materials in order to: 1) gain a better understanding of this regulation change; 2) learn the reasons that prompted the change; and 3) see if you need a USDA license or if you are exempt from licensing.
As ISAR will explain in a forthcoming essay, the deficiencies in APHIS's regulation of pet shops and those associated in the sale of companion animals are so glaring and counterproductive that the only humane solution is, as ISAR's model statute proposes, outright prohibition of retail sale.

Part IV sets forth ISAR's Model Statute.

1 Many if not most of the dogs and cats seen on retail levels-pet shops, malls, auctions, roadside cages, or elsewhere-have traveled through a pipeline that began with breeders, either commercial or amateurs. For an extensive discussion of that pipeline, see Chapters 1, 2, and 3 of ISAR's "Model Statute Regulating Dog Breeding, Facilitation, and Sales (hereafter, "Anti-Breeding Statute"). 

2 This definition is deliberately broad because it intends to include all breeding-from family pets to the most egregious types, puppy mills and kitten factories.

3 A puppy mill has been defined by one court as "a dog breeding operation in which the health of the dogs is disregarded in order to maintain a low overhead and maximize profits." Avenson v. Zegart, 577 F. Supp. 958, 960 (D. Minn. 1984).  While that description of a puppy mill accurately identifies one aspect of such an operation, applying equally to a place where cats are bred commercially, it does not adequately invoke the horrors of mills and is thus insufficient for the purposes of ISAR's Model Statute.

The Animal Health and Plant Inspection Service (hereafter "APHIS"), a division of the United States Department of Agriculture (hereafter "USDA") has grouped "pet wholesalers" and "animal brokers" under the heading of "dealers."  Pet wholesalers are defined as "anyone importing, buying, selling, or trading pets in wholesale channels." Licensing and Registration Under the Animal Welfare Act, USDA, available at .  Animal brokers are defined as "anyone who deals in regulated animals but does not take physical possession." Id.  Both pet wholesalers and animal brokers are required to be licensed by USDA. Id.  The Humane Society of the United States (hereafter "HSUS") defines brokers as those who purchase dogs from puppy mills and kennels and then resell them to retail pet stores. More on How Petland Continues to Support Cruel Puppy Mills, HSUS, Jun. 29, 2009, available at The term "facilitator" as used in ISAR's Model Statute is intended to include all of the persons and legal entities described above.

State LegislationHumane Society of the United Statesavailable at

In addition, compromises and exemptions which always require considerable verbiage to accommodate, have been held to a bare minimum, unlike in the recent unlamented California "mandatory" spay/neuter statute which, until its demise at the hands of compromisers and lobbyists, attempted to accommodate various anti-mandatory spay/neuter constituencies and in doing so turned itself inside out.

7 Please note that throughout the Monograph 12-point Georgia font was used.  The same specifications apply to the text of ISAR's Model Statute. However, in order to identify ISAR's annotation of each section of the West Hollywood ordinance and our Model Statute, ISAR's comments appear immediately after each section in 12-point Courier font, in which this sentence is written).