The Dog Breeding Industry: The problems it presents to both humans and animals, and the great need

for regulation. Whitney E. Jones

I hold that the more helpless a creature, the more entitled it is to protection by man from the cruelty of man. -Gandhi The greatness of a nation and its moral progress can be judged by the way its animals are treated. -Gandhi

I.

INTRODUCTION

My whole life there was nothing I loved more than going to a local pet store to play with the puppies that were for sale. For so long, I lived in ignorant bliss as to how those puppies had come into existence. However, this would change one fateful day when my view of the puppy industry would be drastically altered forever. I had just begun volunteering at my local Humane Society when I received a call from one of the organizations staff members. She informed me that authorities had closed a local dog breeders operation due to evidence of animal cruelty, and many of the confiscated animals had been brought to that Humane Societys facility. Because I was a trained veterinary technician, she requested my help in providing medical attention to the dogs in their care. I agreed to assist and drove straight to the shelter. When I opened the door to the shelters medical room, I was almost frozen in shock from the horrific scene which confronted me. Dozens of little dogs filled the room, and each one was in appalling physical condition. Some were so severely matted that we were unable to determine

their gender before we sedated and shaved them. Most had open sores and wounds on their body some of which were filled with maggots. Almost all were severely underweight and caked in feces and urine. But perhaps the worst thing I witnessed that day were the dogs that were unable to walk correctly due to being in a small cage their entire life. Being cramped in a small cage had not only caused physical deformities to some of the dogs legs, but it had also made them mentally incapable of knowing how to walk in a straight line. When they were put on the ground, they would simply turn small circles over and over again as this is the only thing they were able to do for years on end. By the end of the day I learned that, unfortunately, these circumstances are very common in the commercial dog breeding industry. The dogs in this particular situation were rescued, medically treated, and found wonderful homes. However, many more dogs are not so lucky and will continue to suffer their entire lives at the hand of a commercial breeder. Main Line Animal Rescue, a leader in the fight against inhumane dog breeders,1 recalls the following things it has witnessed: [The dogs] spend a lifetime on painful wire flooring in cramped rabbit hutches[T]hey wear rusted livestock clips in their ears or chains with USDA tags embedded in their necks[A] breeding female is often starved to death orshot once she can no longer produce puppies for market. From the time a female dog comes into her first heat cycle at six or seven months of age, she is bred unmercifully. Producing two litters a year for eight years, she will spend her entire life isolated from the outside world. Kept along with hundreds of other breeding dogs in rows of outside hutches or hidden away in dark barns. Deprived of the most basic of veterinary care, she can suffer from untreated bite wounds,
1

See Main Line Animal Rescue, About, http://www.mlar.org/about/, (last visited July 19, 2013).

pneumonia, heat stroke, ear infections, blindness, malnutrition, splayed and swollen feet, periodontal disease and mange. Main Line Animal Rescue has rescued breeding females who were de-barked with steal pipes, their back teeth cracked, their jaws broken. Other dogs have come to us with scars from undergoing more than a dozen Caesarian sections, all performed without anesthesia by commercial dog breeders, who are generally farmers unqualified to perform such surgeries.2 Commercial breeders who churn out large numbers of puppies, and who are much more concerned with profit than the welfare of their animals are often referred to as puppy mills. 3 These breeders not only subject their breeding dogs to inhumane treatment, but they also often defraud the public by selling sick or genetically unsound puppies to unsuspecting customers.4 After reeking havoc on their animals and customers, they then leave both their customers and local taxpayers to foot the bill for cleaning up the mess they have created.5 One may ask how this problem can be fixed. The answer is simplestricter regulation. This article will examine the definition of a commercial breeder and the reasons why current commercial breeder regulations, at both the Federal and State level, are insufficient. It will then explain how the lack of regulation is harmful to society and the actions that need to be taken to curtail this harm.

Main Line Animal Rescue, Advocacy: Puppy Mills, http://www.mlar.org/advocacy/puppy-mills/ (last visited Aug. 19, 2013).
3

See The Humane Society of the United States, Puppy Mills: Frequently Asked Questions, (Aug. 30, 2012), http://www.humanesociety.org/issues/puppy_mills/qa/puppy_mill_FAQs.html#definition.
4

See Robert H. Teuscher, The Puppy Industry in Missouri, Better Business Bureau, (March 2010), http://stlouis.bbb.org/Storage/142/Documents/Puppy%20Mills%20study.pdf.
5

See Id. at 2; The Humane Society of the United States, Puppy Mill Closure: The Economic Impact On A Local Community (2011), http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/economic_impact_puppy_mill.pdf.

II.

BACKGROUND

A. The Commercial Breeder A simple definition of a commercial dog breeder is anyone who purposefully breeds dogs in order to sell the offspring for profit.6 However, an exact definition can vary significantly depending on the source. Indiana and Tennessee define a commercial dog breeder as someone who keeps twenty of more female dogs for breeding.7 Nebraska decided the definition should include anyone who owns four or more dogs for the purpose of breeding, sells thirty-one or more dogs in a year, produces four or more litters in a year, or sells a dog for later retail sale.8 North Carolinas currently proposed statute sets the standard at someone who maintains ten or more female dogs over the age of six months that are capable of reproduction and kept primarily for the purpose of breeding and selling the offspring as pets.9 I propose that a commercial breeder be defined as any individual who owns or maintains10 five or more unaltered female dogs that are used for the purpose of breeding and selling the offspring. The goal of this definition is to regulate individuals who use dog breeding for financial purposes while still allowing individuals to breed their family pets without government

See Robyn F. Katz, Quick Summary of Commercial Breeder Laws, Animal Legal & Historical Center, http://animallaw.info/topics/tabbed%20topic%20page/spuscommercialbreeders.htm, 2008.
7

Ind. Code Ann. 15-21-1-4 (West 2013); Tenn. Code Ann. 44-17-702 (West 2013). Neb. Rev. Stat. 54-626 (West 2013). H.B. 930, 2013 Gen. Assemb. Reg. Sess., (N.C. 2013).

10

Maintains shall mean keeping the dog under ones control on a regular basis or being the individual who is regularly responsible for caring for the dog.

intervention. It seems fair to say that once an individual begins breeding five or more female dogs they have crossed the line from breeding as a hobby to breeding for business purposes.

B. Why Current Commercial Breeder Regulations Are Not Enough The current federal legislation concerning commercial dog breeding excludes a large portion of commercial breeders from regulation.11 It is estimated that there are approximately 10,000 puppy mills in the United States, but only between 2,000 and 3,000 are licensed and regulated by the federal government.12 In 1970, Congress created the Animal Welfare Act (AWA) which, among other things, requires wholesale sellers of animals to be licensed and subjected to regular inspections by the United States Department of Agriculture (USDA).13 However, a major loophole exists in the word wholesale; it excludes all dog breeders who sell directly to the public.14 While the AWA may have been sufficient when it was implemented in 1970, new technology has seriously dampened its effectiveness in regulating commercial breeders. With the advent of the Internet, many breeders now sell directly to the public and are able to avoid federal regulation altogether.15 Breeders often create their own websites or use online classifieds such as Craigslist or Kijiji to advertise and sale their puppies directly to the consumer. In 2010, the

11

See USDA, Office of Inspector General, Animal and Plant Health Inspection Service, Animal Care Program, Inspections of Problematic Dealers (Report No: 33002-4-SF, Issued May 2010), p. 37.
12

Puppy Mills: Facts and Figures, The Humane Society of the United States, (Jan. 2013), http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/puppy_mills_facts_figures_2013_2.pdf.
13

USDA, supra note 11, at 4. USDA, supra note 11, at 36. USDA, supra note 9, at 37.

14

15

USDAs Office of Inspector General used search engines to find breeders in two sample States.16 Out of the 138 breeders identified, 112 of them were not licensed by the Animal and Plant Health Inspection Service (APHIS),17 the Agency within the USDA responsible for enforcing the provisions of the AWA.18 In fact, many breeders who are cited for AWA violations are choosing to go from wholesale to direct sale in order to avoid the fines or possible closure that may result from their illegal behavior under federal regulation.19 While statistics show that the federal government does not regulate 70-80% of commercial breeders in any fashion,20 statistics also show that the government is very lax in enforcing the law on those breeders which they do regulate.21 A 2010 audit report by the Office of the Inspector General (OIG), revealed deep concerns that the APHIS was not adequately enforcing the AWA regulations during their inspections of commercial breeders.22 The OIG found that most inspectors did not take enforcement action against a first-time violator even if the violation was one that had a high potential for causing harm to the animal.23 Even for repeat violators, inspectors did not take enforcement action 52% of the time.24 The audit report gave the following example of the inspectors failures to enforce humane standards:
16

Id. Id. USDA, supra note 11, at 4.

17

18

19

The Humane Society of the United States, The Problem of Unlicensed Puppy Mills, 6, (Aug. 31, 2012), http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/unlicensed_and_internet_pm.pdf.
20

Puppy Mills: Facts and Figures, supra note 12. USDA, supra note 11, at 8-14. USDA, supra note 11, at 1. USDA, supra note 11, at 8. USDA, supra note 11, at 9.

21

22

23

24

At a facility in Oklahoma with 219 dogs, AC25 cited the breeder for 29 violations (including repeats) during 3 inspections from February 2006 to January 2007. AC requested an IES26 investigation in May 2007. However, before the investigation resulted in any enforcement action, the inspector conducted another inspection in November 2007 and found five dead dogs and other starving dogs that had resorted to cannibalism. Despite these conditions, AC did not immediately confiscate the surviving dogs and, as a result, 22 additional dogs died before the breeders license was revoked.27 Along with the failure to enforce AWA standards, the OIG also reported the APHIS inspectors failed to correctly document violations and gave much lower penalties than required for specific violations.28 Though federal regulation has failed miserably in regulating the commercial dog breeding industry, states have the ability to impose their own regulations on dog breeders.29 In the recent years, there has been a strong push by animal welfare groups to implement puppy mill laws at the state level.30 This year, 2013, a bill was introduced in the North Carolina legislature that would establish basic standards of care for commercial dog breeding operations.31 The bill

25

Animal Care, unit of the Animal and Plant Health Inspection Service that responsible for enforcing the Animal Welfare Act.
26

Investigative and Enforcement Services, unit responsible for investigating violations reported by the Animal Care Unit of the Animal and Plant Health Inspection Service.
27

USDA, supra note 11, at 10-11. USDA, supra note 11, at 17, 23, 30. U.S. Const. amend. X.

28

29

30

The Humane Society of the United States, The HSUS Ranks State Puppy Mill Laws (March 12, 2012), http://www.humanesociety.org/news/press_releases/2012/03/hsus_puppy_mill_state_ranking_031212.html.
31

H.B. 930, supra note 7.

mandates that any individual who maintains ten or more female dogs for breeding must provide the dogs with basic food, water, shelter, and exercise.32 Indiana passed regulation in 2010 that requires any individual who possesses more than twenty female dogs used for breeding to be registered and meet minimum standards of care.33 In 2010, Oregon enacted a new law that not only required minimum levels of care to be given by owners of 10 or more sexually intact dogs, but also limits ownership to no more than fifty intact dogs if they are primarily used for breeding.34 However, a major problem with many of the current state commercial breeding laws is the lack of required registration and inspection.35 Laws simply cannot be enforced if there is no way to discover violations. For example, the Director of Charlotte Mecklenburg Animal Care and Control, Mark Balestra, expressed his concern about the pending dog breeding legislation in North Carolina because it only outlines required standards of care and does not require breeders to be licensed or subject to routine inspections by authorities.36 He stated that the proposed bill gave his agency no more power than they already had with current anti-cruelty laws, and the bill would be largely ineffective until licensing and inspection provisions were also enacted.37 Though some States have taken steps in an attempt to bring dog breeders under government regulation, many of the laws that do exist are meager and, like federal regulation, are

32

H.B. 930, 2013 Gen. Assemb. Reg. Sess., (N.C. 2013). Ind. Code Ann. 15-21-1-4 (West 2013). Or. Rev. Stat. Ann. 167.374, 167.376 (West 2013).

33

34

35

Animal Legal & Historical Center, Table of State Commercial Pet Breeders Laws 2012, http://animallaw.info/articles/State%20Tables/tbuscommercialbreeders.htm.
36

Interview with Mark Balestra, Shelter Director, Charlotte Mecklenburg Animal Care and Control, in Charlotte, N.C. (June 17, 2013).
37

Id.

rarely enforced.38 Additionally, some states still do not have any type of laws regarding the regulation of commercial breeders. This lack of state law combined with the loophole in federal law leaves most breeders without any form of oversight.

III.

REASONS FOR REGULATING COMMERICAL BREEDERS A. Prevention Of Animal Cruelty

The United States, as a whole, has decided that animal cruelty is against public policy.39 Most States agree that the act of unjustifiably torturing, injuring, or killing an animal constitutes animal cruelty.40 They also tend to agree that failing to provide an animal in ones care with adequate food, water, shelter, and medical care will constitute animal cruelty.41 For instance, North Carolina law states that individuals who overdrive, overload, wound, injure, torment, kill, or deprive of necessary sustenance, or cause or procure to be overdriven, overloaded, wounded, injured, tormented, killed, or deprived of necessary sustenance, any animal commit the crime of animal cruelty.42 The State of Washingtons statutes say an owner of an animal is guilty of animal cruelty if he killsstarves, dehydrates, [or] fails to provide the animal with necessary shelter, rest, sanitation, space, or medical attention.43

38

Puppy Mills: Frequently Asked Questions, supra note 3.

39

Humane Soc. of Rochester & Monroe Cnty. for Prevention of Cruelty To Animals, Inc. v. Lyng , 633 F. Supp. 480, 486 (W.D.N.Y. 1986).
40

See sources cited infra notes 39-43. See sources cited infra notes 39-43. N.C. Gen. Stat. Ann. 14-360 (West 2013). Wash. Rev. Code Ann. 16.52.205, 207 (West 2013).

41

42

43

Courts agree that certain acts and omissions listed in state animal cruelty statutes are, indeed, animal cruelty. An Illinois court concluded that the defendant was guilty of animal cruelty for shooting and killing his family dog.44 In Massachusetts, a court found animal cruelty existed in a case where the defendant had failed to provide his dog with food, water, and a sanitary living environment.45 In a case where the defendants dog was suffering from fleas, heartworms, intestinal parasites, and bloody stool, a Texas court confirmed that failure to provide medical care constitutes animal cruelty.46 It is hard to dispute that unspeakable acts of cruelty exist in many commercial breeding operations. Both the United States government and independent humane agencies have documented conditions such as filthy living spaces, extremely small enclosures, lack of food and water, no human interaction or mental stimulation, and exposure to extreme weather.47 Also, the dogs at these facilities are often reported to suffer from parasites, dental disease, skin conditions, blindness, deadly viruses, and other medical ailments.48 The following are quotes from USDA inspection reports: [D]og had been bitten by another dogleft untreated for at least 7 days, which resulted in the flesh around the wound rotting away to the bone.49 The ticks completely covered the dogs body. The dog appeared extremely tired and stressed and did not move, even when we approached it.50
44

People v. Larson, 379 Ill. App. 3d 642, 653, 885 N.E.2d 363, 373 (2008). Com. v. Erickson, 74 Mass. App. Ct. 172, 177, 905 N.E.2d 127, 132 (2009). Thomas v. State, 352 S.W.3d 95, 101 (Tex. App. 2011), petition for discretionary review refused (Mar. 7, 2012).

45

46

47

USDA, supra note 11; The Problem of Unlicensed Puppy Mills, The Humane Society of the United States, (Aug. 31, 2012), http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/unlicensed_and_internet_pm.pdf.
48

Id.; Veterinary Problems in Puppy Mills Dogs, The Humane Society of the United States, (2012), http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/veterinary_problems_puppy_mills.pdf.
49

USDA, Office of Inspector General, Animal and Plant Health Inspection Service, Animal Care Program, Inspections of Problematic Dealers (Report No: 33002-4-SF, Issued May 2010), p. 11.

10

[F]ound five dead dogs and other starving dogs that had resort to cannibalism.51 Food bowls were also infested with live and dead cockroaches.52 The applicant stated that she would bend the head [of the dog] a certain way and the neck would break.53 Maltese in the same pen did not have any teeth left and was not eating or drinking in a normal manner because the jaw structure is deformed. Unable to drink and eat properly the muzzle area and entire front of the dogs coat was wet and soiled from water and drool running out of the mouth.54

Licensee stated that at least seven and possible as many as ten animals were shot by her boyfriend approximately one week before Thanksgiving.55 Three dead dogs were found in enclosures on the premises. The dead, unidentified, female basset hound Amy was extremely emaciated. Her ribcage, shoulder blades, and backbone were very prominent with almost all detail of the bone structure visible.56 At the time of inspection the outdoor temperature was 13.6 F and the surface temperature in various boxes ranged from 0-9F. One dog was observed to be shivering and had frozen droplets on its chin.57 When the inspector asked the licensee when she had last removed the feces from under the enclosures she said it had not been removed since last fall.58

50

Id. at 12. Id. at 13. Id. at 19.

51

52

53

USDA Inspection Report Quotes: Examples of Severe Violations , (2012), The Humane Society of the United States, at 1, http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/usda_severe_violations_pm.pdf.
54

Id. at 4. Id. at 6. Id. at 7. Id. Id. at 11.

55

56

57

58

11

Poodlehad outgrown the chain collar. This had caused the chain to dig into the neck causing a severe open wound nearly around the entire neck with the throat area being the worse. Licensee began removing the collar and bright red blood and pus started dripping from the throat area.59 The dogs lower jaw moved freely with minimal pressure. When asked about the jaw, the applicant stated that the veterinarian had told them that the jaw was broken but didnt really say anything about it.60 It is not hard to imagine why these conditions occur in large breeding operations. First, it seems quite impossible that an individual could provide adequate care for hundreds of dogs without any assistance, and most facilities do not hire staff.61 Secondly, most large commercial breeders are concerned solely with making a profit, and properly caring for their dogs cuts into their profit margin.62 The only feasible way to end this cycle of animal abuse is to implement standards of care and strictly enforce those standards during regular inspections of breeding facilities. B. The Burden Commercial Breeding Puts On State Taxpayers Large scale breeding facilities can have serious negative financial impacts on the local community where it is located. These facilities are usually ignored by law enforcement until the conditions on the premises have become so deplorable that the facilities must be closed and all of the animals must be seized.63 In these situations, local authorities are charged with removing, transporting, and housing what is usually hundreds of animals.64 Additionally, most of these
59

Id. at 14. Id. at 16

60

61

Puppy Mill Closure: The Economic Impact On A Local Community, (2011), The Humane Society of the United States http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/economic_impact_puppy_mill.pdf.
62

Puppy Mills: Frequently Asked Questions, supra note 3. Puppy Mill Closure: The Economic Impact On A Local Community, supra note 61. Id.

63

64

12

animals are in very poor medical condition which adds significantly to the cost of caring for them while they are in the custody of local government.65 For example, in 2009, 371 dogs were seized from a dog breeder in Washington State; the total cost to the city was approximately $330,000. 66 In 2008, a city in Maine was forced to seize 249 dogs from a breeder; the total cost of the operation was approximately $510,000.67 These costly actions by local government could often be avoided if poor conditions at breeding facilities were recognized and corrected through inspections before they reached such a dire point. In addition, the revenue generated from licensing and fines would put money back into the community while also preventing further money from being expended for large-scale seizures. Commercial breeders also cost the taxpayer money by producing approximately 2.15 million puppies a year to add to the pet overpopulation.68 It is estimated between 5-7 million animals enter city shelters every year in the United States; twenty-five percent of which are pure bred.69 Of these animals entering the shelter, approximately 3-4 million are euthanized due to the lack of available homes.70 It costs United States taxpayers over $2 billion per year to run city animal shelters.71 In 2012, the city of Charlotte, North Carolina spent over $5 million to run their

65

Id. Id. Id. Puppy Mills: Facts and Figures, supra note 12. Pet Statistics, ASPCA, http://www.aspca.org/about-us/faq/pet-statistics.aspx, (last visited June 29, 2013).

66

67

68

69

70

Id.; Why Spay or Neuter, Oklahoma Spay Network, http://okspaynetwork.org/whyspay.php, (last visited June 29, 2013).
71

Id.

13

local animal control department.72 Regulating commercial breeders could reduce the overall pet population in the United States which, in return, could decrease the amount taxpayers must spend on local animal control. Finally, commercial dog breeders cost taxpayers money by often failing to pay sales and income taxes.73 Regulation would not only help prevent breeders from draining money from their communities, but would also help ensure breeders are contributing their fair share into the tax pool. C. Fraud And Misrepresentation That Occurs In The Commercial Breeding Industry Because commercial breeders often breed indiscriminately and do not properly care for their animals, the puppies they sell can be far from the perfect pet customers are expecting. Often, consumers who purchase dogs from commercial breeders complain that the puppy they received suffered from congenital defects, was sick; or, in some cases, even died shortly after purchase.74 These customers may spend thousands of dollars in an attempt to save their puppy only to find that the seller refuses to give them any type of refund or assist with any of the medical bills.75 Some states have created puppy lemon laws which allow some sort of relief for a consumer who has purchased a sick puppy. 76 Unfortunately, most of these laws are too inadequate to deter breeders from selling defective dogs. For example, Maine law states that a
72

Interview with Mark Balestra, supra note 36. Puppy Mill Closure: The Economic Impact On A Local Community, supra note 61.

73

74

See The Humane Society of the United States, Puppy Buyer Complaints A Five Year Summary, 2007-2011, (2012), http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/puppy_mill_buyer_complaints.pdf.
75

Id.

76

See Stephanie K. Savino, Puppy Lemon Laws: Think Twice before Buying that Doggy in the Window, Comment, 114 Penn St. L. Rev. at 650 (2009-2010).

14

breeder only has to reimburse the customer for half of the veterinary expenses, and that reimbursement cannot exceed half of the purchase price.77 In Rhode Island, the breeder is only responsible for medical bills up to the purchase price of the puppy.78 New Hampshire does not provide for reimbursement of any veterinary bills. 79 South Carolina allows reimbursement of veterinary fees up to half of the purchase price.80 Still, some states, including North Carolina, do not have any type of puppy lemon law. 81 The reason that most of these laws are ineffective is that, though they often provide for the return of the puppy to the breeder, people bond quickly to pets and hesitate to return the puppy they have grown to love.82 Thus, their only remedy is the reimbursement of medical bills. As demonstrated in the previous paragraph, the amount breeders are required to pay is often less than what the consumer had to pay for veterinary expenses and is also often less than the profit the seller made from the sale of the puppy. Since breeders are rarely required to pay out more than they received for the puppy, there is not much of an incentive for them to stop selling sick puppies. More stringent regulation on breeder facilities can help insure that the puppies being sold are healthy, thus avoiding much of the fraud that is being perpetuated onto unsuspecting consumers.

77

ME. REV. STAT. ANN. tit. 7 4155 (2013). R.I. GEN. LAWS 4-25-5 (2013); N.H. REV. STAT. ANN. 437:13 (2013) S.C. CODE ANN. 47-13-160 (2013). Stephanie K. Savino, supra note 76.

78

79

80

81

82

See Stanley Coren, Ph.D., The Human-Animal Bond, Psychology Today, (Aug. 17, 2010), http://www.psychologytoday.com/blog/canine-corner/201008/the-human-animal-bond-having-kids-and-living-in-thecity-make-difference.

15

IV.

THE CONSTITUTIONALITY OF STRICTER REGULATION

Strict laws regarding the regulation of commercial dog breeders should have no issue passing constitutional muster at both the federal and state level. At the federal level, Congress has the power to regulate activities which have a substantial relation to interstate commerce.83 Congress has concluded that it is necessary to regulate the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or persons or organizations engaged in using them forsale as pets in order to prevent and eliminate burdens uponcommerce.84 The Animal Welfare Act, the current federal legislation that regulates dog breeding, has already been deemed a valid exercise of Congress commerce power.85 At the state level, the Tenth Amendment of the Constitution of the United States gives states the power to regulate for the publics health, safety, welfare, and morals.86 Since dog breeding has not been deemed a fundamental right, any law regarding its regulation will only need to pass the rational basis standard.87 Under the rational basis standard, the governmental action will be held constitutional if it is rationally related to a legitimate governmental interest or purpose.88

83

United States v. Lopez, 514 U.S. 549, 559, 115 S. Ct. 1624, 1630, 131 L. Ed. 2d 626 (1995). 7 U.S.C.A. 2131 (West). Id. U.S. Const. amend. X. 16B C.J.S. Constitutional Law 1120. Id.

84

85

86

87

88

16

There are a number of legitimate concerns the government can assert when it comes to large scale breeding facilities. These concerns include: public health,89 loss of tax revenue,90 and the prevention of animal cruelty.91 Additionally, regulating commercial dog breeding is a rational way to help resolve these issues.92 In Muehlieb v. City of Philadelphia, the court ruled that there was no right to own a dog, and a regulation on how many dogs an individual could own was legitimately related to the citys interest of maintaining health and safety in the community.93 Additionally, a New Jersey court upheld the constitutionality of an ordinance which regulated the sale of dogs despite the plaintiffs objections that the law deprived pet dealers of their right to earn a living.94

V.

TYPE OF REGULATION NEEDED AT THE FEDERAL LEVEL

The Animal and Plant Health Inspection Service is currently proposing a revision to the Animal Welfare Act which would help address the current issue of unregulated commercial dog breeding.95 As discussed previously in this article, the current version of the Animal Welfare Act only provides for the federal regulation of wholesale breeders, thus exempting breeders who sell

89

See Dr. Linda Wolf, Summary of Veterinary Inspection of McDuffee Dog Breeding Facility, The Animal Ark Shelter, (2006), http://animalarkshelter.org/PDFs/Mcduffee%20Vet%20Report.pdf. (scientific study reporting environmental contamination caused by breeding facility).
90

See supra pp. 12-14. See supra pp.9-12. See infra notes 93-94. Muehlieb v. City of Philadelphia, 133 Pa. Cmwlth. 133, 139, 574 A.2d 1208, 1211 (1990).

91

92

93

94

Pet Dealers Ass'n of New Jersey, Inc. v. Div. of Consumer Affairs, Dep't of Law & Pub. Safety, State of N. J., 149 N.J. Super. 235, 240, 373 A.2d 688, 690 (N.J. Super. Ct. App. Div. 1977).
95

Animal Welfare; Retail Pet Stores and Licensing Exemptions, 77 FR 28799-01, (proposed May 16, 2012).

17

directly to the public.96 The pending proposal seeks to make dog breeders who sell directly to the public subject to licensing and inspection under the AWA.97 The proposal also includes an exception for breeders who maintain four or fewer breeding females dogs, thus allowing small breeding operations, conducted primarily for pleasure, to continue without government intervention.98 It is very important that this proposed rule change be implemented in order to close current loopholes in the Animal Welfare Act and provide further protection for the animals, taxpayers, and consumers who are affected by the commercial breeding industry. However, the issue of lack of enforcement must also be addressed. The Animal and Plant Health Inspection Service should provide extensive training to all of its inspectors so they will be able to recognize and take appropriate action towards violations. The APHIS should also issue strict guidelines regarding standards and enforcement that must be followed. These guidelines should include mandatory action for any serious violations, compulsory fines for any repeat offenses, and allowance for immediate seizure if animals are in danger of serious injury or death. Finally, if a facility continues to have serious violations after repeated warnings, its license should be permanently revoked. Requiring federal regulation of all breeders who maintain five or more breeding females and insuring that standards are enforced during regular inspections will be a very large step towards ending the needless suffering of animals, the hefty expensive of taxpayers, and the constant consumer fraud that is rampant in the commercial dog breeding industry.

96

See supra pp. 5-6. Animal Welfare; Retail Pet Stores and Licensing Exemptions, 77 FR 28799-01, (proposed May 16, 2012). Id.

97

98

18

VI.

TYPE OF REGULATION NEEEDED AT THE STATE LEVEL

Though a change in federal legislation would be ideal because of its far-reaching effects, the states should not sit by idly waiting for actions by the federal government. It is important for states to implement their own legislation concerning commercial dog breeding to supplement current federal law and protect the citizens and animals in their state. Because many local municipalities lack resources, the states Department of Agriculture should be responsible for the enforcement of any commercial dog breeding legislation.99 For a state to successfully regulate commercial dog breeding, it must address the issues of licensing, minimum standards of care, inspections, limits on number of breeding dogs, and consumer protection laws.

A. Licensing The first thing that must be established in order to regulate commercial breeders is a licensing system. According to Wisconsins Department of Agriculture, licensing is necessary to protect the welfare of dogs and those individuals who are purchasing them.100 Without a licensing system, there is no way for the government to have knowledge of breeders, thus rendering the enforcement of statutes impossible. All dog breeders should be required to obtain a license; and, as stated previously, a breeder should be defined as any individual who owns or maintains five or more unaltered female dogs that are primarily used for the purpose of breeding
99

Mark Belestra expressed the extreme lack of resources in many small municipalities across North Carolina. He stressed the need for the North Carolina Department of Agriculture to be in charge of regulating commercial dog breeders since their department regulates other activities concerning animals and has many more resources than local governments. See Interview with Mark Balestra, supra note 36.
100

Dog Sellers and Shelters, Wisconsin Department of Agriculture, Trade and Consumer Protection, http://datcp.wi.gov/animals/dog_seller_and_shelters/, (last visited July 10, 2013).

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and selling the offspring.101 A license should not be issued without a preliminary inspection of the breeding facility and should require renewal on a yearly basis. In addition to requiring every breeder to obtain a license, the breeders should also be charged for their licenses. The licensing fees would help offset regulation costs incurred by the government and would help shift the financial burden from taxpayers to those who are profiting from the dog breeding business. I would recommend a sliding scale fee system similar to that which the State of Pennsylvania has in place. In Pennsylvania, the fee schedule is as follows: $75 for 50 or fewer dogs, $200 for 51-100 dogs, $300 for 101-150 dogs, $400 for 151-250 dogs, and $500 for 251 or more dogs.102 A sliding scale would, hopefully, not only distribute the cost based on the burden each breeder is placing on the regulatory system, but also discourage larger numbers of breeding dogs.

B.

Minimum Standards of Care

There should be explicit rules regarding the standard of care which breeders much give to the dogs which they own or maintain.103 These standards of care should include things such as: adequate housing, appropriate amounts of nutritious food, constant access to fresh water, regular veterinary care, and physical and mental stimulation. The American Veterinary Medical Association104 has recommended standards that they feel are necessary for both the well being of

101

See supra p. 3. 3 Pa. Stat. Ann. 459-206 (West 2013).

102

103

Maintains shall mean keeping the dog under ones control on a regular basis or being the individual who is regularly responsible for caring for the dog.
104

The American Veterinary Medical Association was founded in 1864 and is a non-for-profit association with over 84,000 veterinarian members. See Who We Are, American Veterinary Medical Association, https://www.avma.org/About/WhoWeAre/Pages/default.aspx (last visited July 16, 2013).

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dogs at breeding facilities and helping ensure that consumers are receiving healthy, family pets from breeders.105 Because the American Veterinary Medical Association is respected around the world for being the authoritative voice in veterinary medicine,106 it is a sensible resource for standards of care in dog breeding facilities. The following standard of care recommendations by this article have been carefully constructed to align with the AVMAs proposal. First, breeders should provide each dog with proper housing. To reduce the occurrence of infectious disease,107 the housing should be sanitary and free of urine and feces accumulation. It should also be large enough that the dog is able to stand and fully turn about. It is well documented that enclosures which severely restrict a dogs movement cause deterioration of both the dogs physical and mental health.108 If multiple dogs are housed together, the size of the enclosure should be the sum of what each dog would require individually. Any enclosure should have solid flooring as wire flooring often leads to foot injuries, physical pain, and exposure to cold drafts.109 The dogs housing should provide protection against extreme temperatures110 and

105

Model Bill and Regulations to Assure Appropriate Care for Dogs Intended For Use as Pets, American Veterinary Medical Association (April 9, 2010), https://www.avma.org/Advocacy/StateAndLocal/Documents/care_for_dogs_model_act_and_regs_backgrounder.pdf.
106 107

Interview by R. Scott Nolen with Douglas G. Aspros, President, AVMA, (Feb. 2013). Model Bill and Regulations to Assure Appropriate Care for Dogs Intended For Use as Pets, supra note 102 at p.6.

108

Hubrecht RC, Comfortable Quarters for Dogs in Research Institutions, in Comfortable Quarters for th Laboratory Animals. 9th ed. Washington DC: Animal Welfare Institute 56 64 (9 ed., 2002).
109

Problems with Grid Flooring in Dog Kennels, The Humane Society of the United States, http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/wire_grid_floor_pm_fact_sheet.pdf, (last visited July 17, 2013).
110

Extreme temperatures shall be any temperature which could potentially be detrimental to a dogs health.

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precipitation, allow for proper ventilation, and supply adequate lighting.111 It should also be free of any sharp edges, toxins, or any other such hazards that could cause physical injury to the dog. Second, breeders should provide each dog in their care with a proper amount of food and water. Every dog should be fed at least once daily unless otherwise instructed by a veterinarian. The food should be of the proper amount and nutritional value to maintain a weight that is healthy and appropriate for that dogs breed and size. Food should be free of any contaminates or pests. Each dog should have constant access to fresh water unless otherwise instructed by a veterinarian. The water supply should also be clean and free of contaminates or pests. Third, the dogs under a breeders care should receive all necessary medical care and all such care should be given by a licensed veterinarian. All dogs should receive, at minimum, one physical exam a year by a veterinarian. At each dogs annual visit, the veterinarian must certify, in writing, that the dog is suitable for breeding.112 If the veterinarian deems the dog should not be bred, that dog should not be used for breeding until a veterinarian has once again deemed it appropriate.113 It is the breeders responsibility to regularly observe each dog for signs of health issues. If a dog becomes ill or injured at any time, it must be promptly seen by a veterinarian. The breeder should follow all reasonable veterinarian recommendations and prescribed treatment plans concerning the dogs health and wellbeing. At no time should the breeder euthanize a dog

111

Adequate lighting is necessary to clean the facility and to keep a check on the dogs wellbeing. It is also necessary for the mental health of dogs. Ventilation is necessary to reduce odor, provide clean air, and to reduce the concentration of airborne infectious agents. See General Principles of Small Animal Housing, University of Glasgow School of Veterinary Medicine, http://www.gla.ac.uk/t4/~vet/files/teaching/SAHusbandry/generalprinciples.pdf, (last visited July 17, 2013).
112

The American Kennel Club recommends a dog is thoroughly screen by a veterinarian a month before being bred. See, A Guide To Breeding Your Dog, American Kennel Club, http://www.akc.org/breeders/resources/guide_to_breeding_your_dog/step_7.cfm, (last visited July 17, 2013).
113

See Va. Code Ann. 3.2-6507.2 (West 2013).

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unless it is both deemed necessary and performed by a veterinarian.114 The breeder should keep all records of veterinary care and make those records available to the regulating agency upon request. Fourth, all dogs should receive some type of mental and physical stimulation on a regular basis. The American Veterinary Medical Association emphasizes a dogs need for socialization, environmental enrichment, and locomotory activity.115 Socialization with humans and other dogs is crucial for the mental and physical health of a dog.116 A lack of socialization can result in mental harm which can often then lead to self-harming activities by the dog.117 Human socialization can be given in many ways such as petting, holding, and brushing. Dog socialization can also be given in a variety of ways including taking dogs for walks together or giving group exercise time in a play area. Environmental enrichment gives dogs important mental stimulation which is an innate need in the dog species.118 The monotony of living in a small space needs to be broken by enrichment items such as toys, bones, or even something as simple as a raised bed. Locomotory activity, which is defined as freely moving from one place to another, also provides very important mental and physical stimulation for dogs housed in small cages. Allowing a dog to move freely outside of his cage, whether it is a leash walk or a free roam in an

114

Most states have laws that state only a veterinarian may euthanize a companion animal. Some states, however, allow other individuals who have received some sort of training to perform the euthanasia. See, State Laws Governing Euthanasia, American Veterinary Medical Association (Oct. 2012), https://www.avma.org/Advocacy/StateAndLocal/Pages/euthanasia-laws.aspx.
115

Model Bill and Regulations to Assure Appropriate Care for Dogs Intended For Use as Pets, supra note 105 at p.3. Id. Id. Id.

116

117

118

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exercise pen, helps prevent the serious physical and mental consequences, such as depression and muscle atrophy, caused by long-term confinement in a cage.119

C. Regular Inspections Requiring licenses and minimum standards of care will be of no value if regular inspections are not preformed to enforce the laws. Every breeding facility should be subject to an annual inspection as well as additional inspections if deemed necessary due to previous violations or complaints from the public. Inspections should be done during normal business hours. Advance notice should not be given to the breeder;120 however, the breeder should be given a reasonable opportunity to be present during the inspection. Breeders must give inspectors access to any space or structure where animals are being housed. As discussed regarding inspections by the federal government, state inspectors should also be thoroughly trained in how to identify and respond to violations of the states minimum standards of care. The state should implement clear guidelines regarding standards and enforcement.

D. Limits on Number of Breeding Dogs Limiting the number of dogs a breeder can maintain will help prevent animal cruelty and decrease taxpayers burden. Logically, the more dogs an individuals owns the harder it will be to meet the required standards of care. It takes a substantial amount of time to feed, water, clean,

119

Animal Rights Uncompromised: Crating Dogs and Puppies, PETA, http://www.peta.org/about/why-peta/cratingdogs.aspx (last visited July 18th, 2013).
120

If a breeder is violating the state-set standards of care, they may attempt to hide evidence if they know of the impending inspection. Some states have agreed that no advance notice is appropriate. See Ohio Rev. Code Ann. 956.10 (West 2013), and Tex. Occ. Code Ann. 802.062 (West 2013).

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and provide stimulation to a large number of dogs. Setting a cap on the number of breeding dogs one may own will make the standards of care more manageable for breeders. Additionally, because pet overpopulation costs United States taxpayers over $2 billion per year121 and commercial breeders add to the overpopulation by producing approximately 2.15 million puppies a year,122 setting a limit on the number of breeding dogs one can possess will help decrease the amount taxpayers must spend on pet overpopulation. Some states have already implemented restrictions on the number of breeding dogs one can possess. Oregon, Washington, and Virginia set a cap at 50 dogs used primarily for breeding purposes.123 Using these states as a guideline, setting the cap at 100 or fewer breeding dogs would be proper to help curb animal cruelty and the taxpayers cost of pet overpopulation.

E. Consumer Protection Laws Establishing minimum care standards for all commercial breeders will help ensure that puppies being sold to the public are healthy. However, remedies also need to be set in place to compensate consumers when breeders misrepresent the health or breeding lineage of a puppy. Courts have found that dogs are goods and consumers should be protected like a consumer of any other product would be under the theories of express warranty, implied warranty of merchantability misrepresentation, and fraud.124 In Maguire v. Mohrmann, the court said New

121

Id. Puppy Mills: Facts and Figures, supra note 12.

122

123

Or. Rev. Stat. Ann. 167.374 (West 2013); Wash. Rev. Code Ann. 16.52.310 (West 2013); Va. Code Ann. 3.2-6507.2 (West 2013).
124

Sacco v. Tate, 175 Misc. 2d 901, 902, 672 N.Y.S.2d 618, 619 (App. Term 1998); Reed v. Comen, 1998 WL 263767 (Conn. Super. Ct. 1998); Adams v. Buchko, 2008 WL 382692 (N.J. Super. Ct. App. Div. 2008).

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Jerseys Consumer Fraud Act was intended to protect consumers against fraud and misleading practices in the sale of goods and services.125 The court then concluded that consumers purchasing dogs are included under the Act.126 It is important that all states recognize that dogs are, indeed, goods and consumers who purchase puppies should have the same protection as consumers who purchase other types of goods. In addition to allowing consumers to bring actions under general seller liability principles, states should also enact puppy lemon laws. As discussed previously in this article, capping remedies at the purchase price or less has failed to dissuade breeders from selling unhealthy puppies.127 If a dog becomes sick shortly after being purchased, the breeder should be responsible for all reasonable medical bills that were needed to return the dog to full health. If the dog should die within a short time after being purchased, the breeder should be responsible not only for reasonable medical bills incurred while trying to save the dogs life but also for refunding the full amount of the purchase price. Additionally, if a seller makes any type of warranty towards the genetic soundness of a dog, he should be responsible for any reasonable medical bills incurred due to a genetic defect in the dog. Allowing these types of remedies will provide protection to the consumer while encouraging breeders to take proper care in their breeding practices.

VII.

CONCLUSION

Commercial dog breeders have been allowed to perpetuate harm on our society by committing unspeakable acts of animal cruelty, draining the pockets of taxpayers, and selling defective dogs to consumers. Current laws regarding dog breeding are either inadequate, rarely
125

Maguire v. Mohrmann, 397 N.J. Super. 103, 109, 935 A.2d 1259, 1263 (N.J. Super. Ct. App. Div. 2007). Id. See supra pp. 14-15.

126

127

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enforced, or both. It is critical for the government to take action to protect the welfare of its citizens and animals. For such protection, the implementation of a licensing scheme, minimum standards of care, regular inspections, limits on the number of breeding dogs one may possess, and consumer protection laws is essential. However, the needed regulation in the dog breeding industry will never occur until citizens standup and demand change from their government. As Margaret Mead once said, Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has.

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