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New York Pet Welfare Association, Inc. v. City of New York

United States Court of Appeals, Second Circuit

March 2, 2017

New York Pet Welfare Association, Inc., Plaintiff-Appellant,
City of New York, New York City Council, Corey Johnson, individually and in his capacity as New York City Councilman, Elizabeth S. Crowley, individually and in her capacity as New York City Councilwoman, Defendants-Appellees, Linda B. Rosenthal, individually and in her capacity as New York State Assembly Member, Defendant.

          Argued: September 19, 2016

         Appeal 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 Plaintiff-Appellant.

          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.

          S. 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. [*]

          Edward R. Korman, District Judge

         Home to more than a million dogs and cats, [1] 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.

         On the 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 law.[2] 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.[3]


         I. Federal, State, and City Regulation of Commerce in Animals

         The 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).

         The 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).

         Despite 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)).

         Indeed, 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

         In 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.[4] And numerous local governments have gone farther, banning pet shops from selling any animal not acquired from a shelter or humane society.[5]

         Until 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).

         II. The Challenged Laws

         Shortly 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 § 17-804(b)).

         The 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 rescue organizations.

         The 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. § 17-804(a)(1)-(4).


         Review 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 ...

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