HOW YOU CAN HELP ANIMALS!
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.
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"). http://www.isaronline.org/puppy_mill_statute.html
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.
4 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 http://www.aphis.usda.gov/animal_welfare/downloads/aw/awlicreg.pdf .
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 http://www.hsus.org/pets/. The term
"facilitator" as used in ISAR's Model Statute is intended to include
all of the persons and legal entities described above.
5 State Legislation, Humane Society of the United States, available at http://www.humanesociety.org/about/departments/legislation/state_legislation.html.
6 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).
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