The Retail Pet Ban: A Blow to Illegal Breeders or to Small Businesses?

By: Ashley Willard

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Purchasing your next furry family member from a pet store may soon become a relic of the past. In October 2017, California became the first state to ban the retail sale of dogs, cats, and rabbits, unless they originated from an animal shelter or rescue group. The measure is intended to encourage adoption and to deal a blow to puppy mills, which are notorious for mistreating the animals they breed. However, opponents of the ban have raised a variety of concerns—driving small business owners out of business, limiting consumer choice, and motivating consumers to order their dogs from unregulated sellers online. As the retail pet ban debate has begun to pick up steam and start trending across the country, these arguments have framed the discussion on how best to promote the welfare of our nation’s animals.

Maryland Governor Larry Hogan signed a similar, but more extensive, blanket ban on retail pet sales into law in April 2018. Shortly thereafter, a group of pet shops and breeders led by Just Puppies filed suit, hoping to block the measure from taking effect in January 2020. Just Puppies argued that the ban violated both the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment, as it encouraged pet stores to “showcase” dogs and cats from shelters and “local breeders.” However, in February 2020, a federal district judge rejected this challenge and upheld the law. She found that Maryland had articulated a variety of legitimate state interests—protecting consumers, reducing financial support for mill breeders, and encouraging pet adoptions—and that there was a rational basis for the law. While she acknowledged that there were grounds to support the argument that “the cure is worse than the disease,” namely that the ban shifted the sale of puppies from regulated to unregulated sources, she ultimately deferred to the legislature.

Several state legislatures (including Colorado, Minnesota, New Hampshire, and New York, where a ban just passed in the Senate) began considering retail pen bans before the pandemic took hold, and we can expect that they will soon take up the issue again. As noted, these measures are grounded in a well-meaning desire to reduce the demand for dogs born in puppy mills. However, opponents, who consider such bans misguided, have raised a variety of concerns.

First, retailers are subject to regulations that do not apply to online sellers. Consumers seeking out a new puppy or a specific breed of dog will likely turn to these unregulated sources when they inevitably cannot find what they’re looking for in shelters. The unintended consequence of these laws is that rather than steering consumers away from puppy mills, the laws actually drive consumers directly to these irresponsible breeders on the black market. Second, small business owners would likely be driven out of business. While hosting adoption events may draw consumers into these stores to purchase toys, food, and other pet supplies, small businesses would still likely struggle to compete with big chain stores. Further, blanket bans on retail pet sales do not distinguish between those who breed responsibly and those who source from puppy mills. Some, including the president of the Pet Industry Joint Advisory Council (“PIJAC”), have instead suggested pushing for better enforcement of the federal law requiring pet stores to guarantee that their pets came from licensed breeders and to display those credentials. The PIJAC secretary emphasized that legislatures should focus on applying animal care standards to all caretakers—stores, breeders, shelters, and rescues alike.

As of yet, the federal government has not weighed in on the issue. However, there are two bipartisan bills in Congress—the WOOF! Act and the Puppy Protection Act—that, if passed, would further regulate breeding facilities and might obviate the need for states taking matters into their own hands. Until then, however, it seems that states are trending toward some version of a retail pet ban, and we may never ask again Patti Page’s famous question, “how much is that doggie in the window?”

 

Ashley Willard is a second-year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in both Political Science and Economics and a Bachelor of Science in Psychology from the University of Georgia. Upon graduation, she intends to practice criminal law.