Preemption and the Sale of Animals

Is it possible that the sales of animals, let’s say dogs and cats, pups and kittens, is strictly a federal issue?  We probably realize that despite the Animal Welfare Act, and APHIS, the laws, statutes, regulations, ordinances etc. that involve animal sales are usually local, and perhaps involve state statutes passed by the legislature.

By having reviewed the actions of HSUS over the years, HSUS appears to prefer federal legislation so it can do the most harm in one fell swoop and not have to enact local state laws.  But if need be, HSUS will break out its volunteer directors or paid people, and get those state laws going. In 2008, HSUS was going gangbusters and had about 150 to 184 laws in 2009 proposed for different states.  Exactly how HSUS could spend the time and funding on this without it being lobbying is peculiar?

In any event, by repeated failures in getting the HSUS pups bill passed, HSUS then moved to embark on their PM campaign and teamed up with Best Friends Utah, to push the “Buying a puppy causes a shelter animal to die” campaign, with Best Friends/ASPCA working relentlessly to stop sales of pets at pet stores or online. Over the course of about 6 years, every person in the USA probably knows what is meant by PM, because it’s been on TV and news millions of times by now.  Now activists have shut down many pet stores, breeders, and even owners trying to rehome their animals.

However we have noted that with the economic downturn, even Craigslist flaggers have stopped their incessant flagging of every single puppy or kitten, and most ads even for purported purebreds are left unflagged. So perhaps the gang flagging of every single puppy has stopped for the time being. That may be because there usually are no puppies in shelters. Puppies should not even be allowed in shelters due to disease.

Now with the dreaded AWA-APHIS regs in place, hobbyists are worried that they too will be the target of the AR regime. Can’t say we blame them, since if the APHIS regs are federal law, how exactly can a state or county or city ignore it?  They probably can’t ignore it, but then the question (to us anyway) comes up as to whether the APHIS regs were set up purposely for INTERNET sales that fell through the cracks?  Was that not one of the primary purposes of it? That such sellers, wholesale to consumer, not wholesale to broker,  who had a lot of puppies, were avoiding regulation because there was a loophole? And who will be the enforcer of such alleged rules in the field?  Will HSUS APHIS people be calling every local Humane Society/SPCA to do the bust?

If the intent of APHIS was to change how wholesale to consumer “was left out of the loop”, then why didn’t APHIS just fix that part?  Why did APHIS put all this garbage about breeders having to meet face to face to sell something? We will tell you why.  It’s simply an AR method of trying to snare all breeders into the Federal scheme of alleged “online” sales and then claiming one must show another the dog in person to be exempted, otherwise one must be federally required to actually become a commercial kennel.  Now that isn’t the wording of any laws written.

But the APHIS mumbo jumbo was done purposely to snare breeders so that when ads are online or in the newspaper, etc, some AR can run out and try and BUST people, SEIZE the animals, and TAKE the $$$$ from selling them.  It  does several things:  One– it penalizes hobby breeders to some degree…  Two — it purports to make a dent in online sales by scare tactics….  Three–  it sets the scene for HSUS/ASPCA to offer rewards for catching those selling animals……..We do think that if properly challenged [and it will not be easy] — the law is far too over-encompassing, and expresses what appears to be a Federal preemption in regulation, but without an actual public law by Congress to stake out the entire field of selling animals. Since commercial kennels are already under Federal law, the new APHIS pretty much makes many breeders in some respect, a commercial kennel, even though clearly the Federal law only applies to those with higher numbers of animals. Is that how a federal regulation preempts the field, by just changing some parts of APHIS?  Maybe. But did it go too far, and end up violating constitutional law somehow?  Selling dogs is not the same as regulating airlines or ships in deep water channels or navigation on open waters. A commercial kennel would not seem to be a kennel with five female breeders, or would it?  How was that number chosen? How much you want to bet that HSUS said to take 5 x 10 x 2 and because that’s potentially 50 pups twice a year, then 100 pups per year means you should be a commercial kennel? (That’s taking a litter of 10 even though many small breeds will never throw 10 puppies obviously.)


One thought on “Preemption and the Sale of Animals

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