Argued: September 19, 2016
from an order of the United States District Court for the
Eastern District of New York, Gleeson, J., dismissing a
complaint challenging New York City animal welfare laws on
Commerce Clause and preemption grounds. The complaint alleged
that one law-requiring City pet shops to purchase dogs and
cats directly from federally licensed breeders-violated the
dormant Commerce Clause and was preempted by the federal
Animal Welfare Act, and that another-mandating that pet shops
sterilize dogs and cats before releasing them to
consumers-was preempted by New York law. The district judge
held that the challenged laws do not discriminate against or
unduly burden interstate commerce, and do not conflict with
either federal or New York law.
Jeffrey M. Pollock, (Nancy Elizabeth Halpern, on the brief),
Fox Rothschild LLP, Lawrenceville, N.J. (James M. Lemonedes,
Fox Rothschild LLP, New York, NY, on the brief), for
Benjamin Welikson, of Counsel (Zachary W. Carter, Corporation
Counsel, Richard Dearing, Assistant Corporation Counsel,
Devin Slack, of Counsel, on the brief), City of New York, New
York, NY, for Defendants-Appellees.
Reid Kahn, Kane Kessler, P.C., New York, NY, for Amicus
Curiae The Humane Society of the United States.
Before: Leval and Lohier, Circuit Judges, and Korman,
District Judge. [*]
R. Korman, District Judge
more than a million dogs and cats,  New York City (collectively
with two individual defendants, "the City") has
long worked to address a tangle of problems surrounding the
companion animal business-including irresponsible breeding of
animals destined for the City market, their subsequent sale
to unwitting consumers, and an overpopulation of unwanted
animals. Armed with a new grant of authority from the
Legislature, the City enacted a package of laws in 2015 that
aimed to mitigate these issues by regulating the sale of dogs
and cats in pet shops.
day they were to take effect, the New York Pet Welfare
Association ("NYPWA") brought this suit to block
two of these mandates. The first-the "Sourcing
Law"-requires that pet shops sell only animals acquired
from breeders holding a Class A license issued under the
federal Animal Welfare Act ("AWA"), and the
second-the "Spay/Neuter Law"-requires that pet
shops sterilize each animal before releasing it to a
consumer. NYPWA claims that the Sourcing Law violates the
"dormant" Commerce Clause and is preempted by the
AWA, and that the Spay/Neuter Law is preempted by New York
The district judge dismissed NYPWA's entire complaint.
N.Y. Pet Welfare Ass'n, Inc. v. City of New
York, 143 F.Supp.3d 50 (E.D.N.Y.) (Gleeson, J.). NYPWA
appeals, and we affirm.
Federal, State, and City Regulation of Commerce in
commercial breeding and sale of companion animals is subject
to a web of overlapping federal, state, and local regulation.
The Animal Welfare Act, 7 U.S.C. § 2131 et
seq., is the only federal law addressed to the trade and
treatment of dogs and cats intended for use as pets. The AWA
applies broadly, covering any "dealer"-a
"person who, in commerce, for compensation or profit,
delivers for transportation, or transports, except as a
carrier, buys, or sells, or negotiates the purchase or sale
of . . . any dog or other animal . . . [for] use as a pet,
" id. § 2132(f)- but the statute itself
does not deal in details. Rather, it sets up a general
structure and tells the Secretary of Agriculture to fill in
the blanks. The AWA requires most dealers to be federally
licensed, id. § 2133-34, but leaves it to the
Secretary to design the licensing scheme, see id.
§ 2133, and define specific standards of care that
dealers must abide by, id. § 2143(a)(1).
Secretary has created three licensing categories of dealers:
Class A breeders, Class B distributors, and exempt breeders.
Class A breeders include all dealers subject to licensure
"whose business involving animals consists only of
animals that are bred and raised on the premises." 9
C.F.R. § 1.1. Class B distributors include all dealers
subject to licensure "whose business includes the
purchase and/or resale of any animal, " including
brokers who "negotiate or arrange for" the purchase
or sale of animals, but do not take possession or ownership
of them. Id. Exempt breeders do not need licenses so
long as they have four or fewer breeding females, and sell
only their offspring. 9 C.F.R. § 2.1(a)(3)(iii), (vii).
its breadth, the AWA has always explicitly contemplated
continuing state and local regulation of commerce in animals.
The Act authorizes the Secretary "to cooperate with the
officials of the various States or political subdivisions
thereof in effectuating the purposes of this Act and of any
State . . . or municipal legislation or ordinance on the same
subject." Pub. L. No. 89-544 § 15(b), 80 Stat. 350,
352 (codified as amended at 7 U.S.C. § 2145(b)).
Moreover, in 1985, Congress directed that the federal
standards applicable to dealers under the AWA "shall not
prohibit any State . . . from promulgating standards in
addition to those . . . promulgated by the Secretary."
Pub. L. No. 99-198 § 1752(b)(3), 99 Stat. 1354, 1647
(codified at 7 U.S.C. § 2143(a)(8)).
many states have specifically regulated the sale of dogs and
cats. Many of these laws are motivated by concern that
large-scale commercial breeders-often maligned (whether
fairly or not) as "puppy mills"-prioritize profit
over humane treatment and responsible breeding, and target
them for special scrutiny. See, e.g., N.Y.
Agric. & Mkts. Law § 405 (requiring yearly
inspections of dealers who sell more than 25 animals per
year); see also American Society for the Prevention
of Cruelty to Animals, State Puppy Mill Chart (last updated
June 16, 2015), archived at
addition to regulating large breeders directly, some
jurisdictions have also opted to regulate the pet shops
through which poorly bred or ill-treated animals are often
sold. Some of these laws simply provide consumers additional
protection by strengthening warranties and mandating
disclosures about the animal. See, e.g., N.Y. Gen.
Bus. Law §§ 751-55. Over the last several years,
however, many jurisdictions have enacted laws that sharply
limit-or simply eliminate-pet shops' ability to acquire
dogs and cats from commercial sources. Three states limit pet
shops' sale of commercially bred dogs to animals obtained
from federal licensees with clean records. And numerous
local governments have gone farther, banning pet shops from
selling any animal not acquired from a shelter or
recently, New York law blocked any efforts by the City to
regulate its own pet shops. The Pet Dealer Act, L. 2000, ch.
259, §§ 2, 4, 2000 N.Y. Laws 2885, 2888, 2889
(codified at N.Y. Agric. & Mkts. Law § 400-a
(repealed 2014); N.Y. Gen. Bus. Law § 753-e (repealed
2014)), expressly preempted "any local law . . .
regulating or licensing pet dealers." In 2014 the
Legislature changed course, explicitly providing that nothing
in the Pet Dealer Act should be construed to "limit or
restrict any municipality from enacting or enforcing a local
law . . . governing pet dealers . . . including a law . . .
governing the source of animals sold or offered for sale by
pet dealers, and the spay or neuter of such animals."
Act of Jan. 10, 2014, L. 2013, ch. 553, 2013 N.Y. Laws 1457
(codified as amended at N.Y. Agric. & Mkts. Law §
407; N.Y. Gen. Bus. Law § 753-d).
The Challenged Laws
thereafter, the New York City Council began considering
several new laws regulating pet shops. After multiple
hearings and extensive testimony on the proposed regulations,
the City enacted, inter alia, the Sourcing Law, 2015
N.Y.C. Local Law No. 5 § 2 (Jan. 17, 2015) (codified as
amended at N.Y.C. Admin. Code § 17-1702), and the
Spay/Neuter Law, 2015 N.Y.C. Local Law No.7 § 3 (Jan.
17, 2015) (codified as amended at N.Y.C. Admin. Code §
Sourcing Law provides that City pet shops may obtain dogs or
cats only directly from federally-licensed Class A
breeders (who sell only animals bred and raised on their own
premises). N.Y.C Admin. Code § 17-1702(a)(1). Moreover,
pet shops may buy only from breeders whose federal license
has not been suspended within the last five years,
id., have not been recently cited for violating the
AWA by the U.S. Department of Agriculture, see id.
§ 17-1702(a)(2), and provide a sworn affidavit that they
have never been convicted of violating certain animal
protection laws, id. § 17-1702(a)(3)-(4). Pet
shops are also expressly forbidden from selling animals
knowingly obtained from Class B distributors (who purchase
and resell animals), id. § 17-1702(b), and
forbidden by implication from selling animals obtained from
exempt breeders (who cannot obtain a Class A license because
they have fewer than five breeding females). Notably, the
same sourcing rules do not apply to animal shelters or animal
Spay/Neuter Law prohibits pet shops from releasing any dog or
cat to a consumer unless it has been sterilized by a
veterinarian. Id. § 17-804(b). The Law
specifically defines "sterilization" as such an
operation performed on a "dog or cat that is at least
eight weeks of age and that weighs at least two pounds."
Id. § 17-802(i). Animal shelters are also
generally required to sterilize dogs and cats before
releasing them, id. § 17-804(a), but their
obligation to do so is subject to a number of exceptions not
applicable to pet shops, see id. §
of a dismissal under Fed.R.Civ.P. 12(b)(6) is de novo. We
consider the facts alleged in the complaint, documents
attached to it or incorporated by reference, and matters
subject to judicial notice, Parkcentral Glob. Hub Ltd. v.
Porsche Auto. Holdings SE, 763 F.3d 198, 202 (2d Cir.
2014) (per curiam). We accept ...