o understand why so many responsible dog breeders and organizations object to PAWS, you first have to understand the history of the Animal Welfare Act and the underlying danger of the AR (Animal Rights) strategy of incrementalism. In the words of AKC's Jim Holt:
"One of the best examples both of exploiting opportunities and incrementalism is the recent history of the federal Animal Welfare Act, which has been mentioned in passing at this conference, but which so far we've not really focused on. Let me give you a brief history of the Animal Welfare Act and a couple of recent examples of incrementalism and exploitation of opportunities at work."
"The federal legislation which is now known as the Animal Welfare Act began life on August 24, 1966, as the Laboratory Animal Protection Act. Prior to that, the regulation of animal welfare was considered the province of states and local jurisdictions. However, after a campaign of sensationalized exposes of alleged animal abuses in medical research laboratories (about which we now have reason to be highly skeptical), Congress was persuaded that states and local jurisdictions were not up to the task of imposing humane standards on research laboratories, and decided to make this a federal responsibility.
Part of the argument for federal legislation also was that federal research facilities, and facilities conducting research using federal funds, were alleged to be a large part of the problem, ergo the federal government had a responsibility to regulate them."
"After enactment of the Laboratory Animal Protection Act in 1966, significant amendments to the Act were made in 1970, 1976, 1985, and 1990 along with less comprehensive amendments on several other occasions. By 1990, legislation that had started life as the Laboratory Animal Protection Act - to regulate the treatment of animals in research facilities - also regulated animals in zoos, aquariums, animal exhibitions such as circuses, the transport of animals by common carriers, handling and sale of animals at auctions, and breeders who sell dogs and cats at wholesale for use as pets or for hunting, breeding and security purposes. It had also been insidiously renamed the Animal Welfare Act."
"In addition to the many amendments to the Act actually enacted, there have been many additional unsuccessful attempts in Congress and the courts to expand coverage of the Act, both with respect to the activities regulated and with respect to the species covered. (Significantly, the Act does not regulate agricultural animals.) Barely a year goes by that Congress does not have before it several proposed amendments to the Animal Welfare Act. For example, in just the last few years litigation has been undertaken to bring under the Act persons who breed and sell dogs and cats at retail from their residences, who are currently exempted from coverage, and rats, mice and birds,
which are also currently not covered. Coverage of rats, mice and birds was also proposed in Congressional legislation, as was legislation to require airlines which carry animals to retrofit cargo holds, and legislation to require the federal government to regulate the age and frequency of breeding of dogs and the socialization of puppies. Both the addition of rats, mice and birds and the regulation of breeding and socialization of dogs became major issues of controversy in the 2002 Farm Bill."
"The legislation to require federal regulation of the breeding and socialization of puppies is an excellent example both of incrementalism and the hypocrisy of the animal rights movement."
"One of the reasons they have been able to [raise so much money] is because they have been, for the most part, masters of the process which I call "incrementalism". For the most part they have learned to be patient and take very small steps, sometimes exploiting genuine problems and sometimes exploiting opportunities that circumstance drops in their lap, to make small gains and establish new public policy precedents which can be exploited and expanded over time." (Jim Holt's remarks to the NAIA on March 29, 2004)
The principle that the HSUS et al seek to impose with PAWS is the same one that they were seeking in the Puppy Protection Act: that the federal government should regulate all breeders of dogs (and cats, but more about that later).† In the words of Jim Holt:
"Currently, neither the Animal Welfare Act nor any other federal statute regulates breeding practices of any species of animals. The HSUS wants desperately to establish the principal that it is within the purview of the federal government to regulate breeding. Once they've established that principle, they'll work on the details." (Jim Holt's remarks to the NAIA on March 29, 2004)
If you donít believe Jim Holt when he says that AR organizations consider each bill a single step in the process, then maybe youíll believe HSUS (The Humane Society of the United States):† "While the HSUS believes the best place to find an animal companion is your local animal shelter, PAWS is a crucial first step to establish a safety net for the thousands of animals bred yearly for the pet trade..."
As late as March 2005, AKC was still opposing federal regulation of retail dog breeding. In a meeting with the USDA that month, Jim Holt said:
"At the same time, recognize that there are individuals and groups who seek to unduly restrict the ability of persons to breed, own, and enjoy purebred dogs and who seek to redefine the relationship between humans and animals. Unfortunately, these individuals and groups often advocate expanding laws and government regulations and policies to further their objectives in the name of animal welfare. We strongly oppose their efforts to use government to impose an extremist animal welfare and animal rights agenda. And we also strongly oppose efforts to redefine all dog breeding as commercial activity and to undermine the essential amateur and hobbyist status of the sport of purebred dogs." (USDA Animal Welfare Listening Session, March 23, 2005)
So you can imagine our shock when on May 26, AKC issued a press release supporting PAWS - a bill that is exactly what Mr. Holt warned against just two months earlier. Worse yet, the HSUS and DDAL (Doris Day Animal League) issued similar press releases on the same day. At that point, the AKC board had not yet voted to support PAWS and the delegate body hadnít even been told that PAWS was in the works. The Cat Fanciers, and other allies who worked with us to oppose the Puppy Protection Act, were blindsided.
AKC has justified this abandonment of principles and allies with the following four reasons for supporting PAWS:
- Increase of dog sales via the internet and 'mass marketing channels', which may increase possibility of deceptive sales practices.
- Increase in number of imported dogs, many of which are said to be in poor health and badly bred.
- High volume breeding operations that sell retail only are not required to be USDA licensed under current law.
- To protect breeders from a sudden reversal of USDA policy exempting retail breeders.
Letís take a closer look at these reasons.
PAWS opponents are not denying that sales via the internet or 'mass marketing channels' (whatever those are) have created problems. What concerns us is that AKC has not proven first, that internet retail sales have created a problem that cannot be dealt with by current state and federal regulations, and second, that the PAWS bill as written will solve this particular problem.
According to one source, the U.S. dog marketplace absorbs some 7,000,000 dogs per year or roughly 20,000 per day. (I do not vouch for these figures but do not have ready access to better ones.) Before we abandon our principles and allies and support the PAWS bill, I would like these questions answered:
- What percentage of dog sales are internet sales where the purchaser does not see the kennel?
- Of those sales, what percentage results in consumer complaints?
- Of these consumer complaints, how many cannot be settled using current consumer protection laws?
AKC has provided no answer to any of these questions. And one more thing... PAWS makes no mention at all of internet sales.
Again, the question is whether or not the number of imported dogs with problems is so great that it requires additional federal regulation, and if so, is PAWS the answer?
In attorney John Hoffmanís defense of PAWS in Dog News, he cited a recent problem with an importer bringing in sick bulldogs and French bulldogs through LAX. This story was intended to show that PAWS is necessary, but in the same article, Mr. Hoffman writes:
"Because of our efforts, the importer has been ordered by a court not to buy, sell, or kennel dogs during the five year period of a repayment plan, has been fined $500 by the California Veterinary Board for furnishing prescription drugs without a license, and has been suspended for life and fined $3,000 by the AKC."
In other words, current state and federal laws were adequate to deal with the problem.
Under current USDA regulations:
- Imported dogs must be at least 8 weeks of age.
- The USDA Animal Care department already inspects dogs traveling on US and foreign carriers.
- Most of these dogs are consigned to intermediaries who are already required to be USDA licensed.
How widespread is this problem? AKCís Aug 5 PAWS 'Fact of the Day' provides a link to a web site and says, "To read how puppies, many of which are sick, underage, and unvaccinated, are being imported and sold to the pet-buying public each year visit: PAWS 'Fact of the Day'." Check that link for yourself - there is NOTHING there that provides any facts to support AKCís argument that this problem is widespread or critical.
As an aside, I think itís noteworthy that the problem reported by Mr. Hoffman in his article took place in Southern California, where Los Angeles county has some of the most restrictive anti-breeding laws in the country.
High volume retail breeders
In the early days of our sport, high volume kennels were the norm. Most of our breeds were created and refined by high volume breeders of the past. In the 70s, however, in an attempt to distance ourselves from puppy mills featured in TV scandals, and in response to the AR mantra "Every time you sell a puppy, a dog is killed in a shelter", we started reducing OUR numbers. Today, some breeders compete to brag how FEW dogs they breed.
AKC reflects our ambivalence about high volume breeding. On the one hand, high volume breeders generate lots of income, but we pretty much keep their hands out of leadership positions. The controversy over the High Volume Breeders Committee Report was more evidence of our mixed feelings about high volume breeders. Senator Santorumís July 27 speech about PAWS reflects how our negativity about high volume breeding has seeped into the public consciousness.
He said: "PAWS will bring under coverage of the Animal Welfare Act high volume dealers who are in every respect like those dealers currently regulated, but are evading regulation because they sell animals exclusively at retail." (Senator Santorum's speech, July 27, 2005)
There are two problems with this statement. First, the word 'evading' already assumes that these people are doing something wrong. Secondly, I can think of at least one important distinction between high-volume wholesale breeders and high-volume retail breeders and that is the question of profit. Very few hobby breeders, regardless of volume, are motivated primarily or even in large part, by profit.
This is the $64,000 question for AKC: are we taking a position that high volume breeding, however we define it, is inherently wrong and to be discouraged? Because, as Jim Holt has repeatedly told us, it is really only a small part of the dog breeding community that we are abandoning in order to placate Senator Santorum and company:
"[T]he vast majority of persons who register litters with the AKC are hobby and show breeders. In recent years, more than two-thirds of all persons who register a litter with the AKC, registered only one litter that year and more than 85 percent registered only two litters a year. Litters registered by these small hobby and show breeders account for more than half of all puppies in litters registered by the AKC. On the other hand, persons registering 10 or more litters in a year with the AKC, account for only 2 percent of our litter registrants and only about 20 percent of the puppies in AKC registered litters. Constituency of the AKC, therefore, is primarily hobby & show breeders." (USDA Animal Welfare Listening Session, March 23, 2005)
Before we betray this small number of our fellow breeders (and donít forget the cat fanciers who are also affected by this bill), Iíd like to know if the 'problem' with high volume retail breeders is the fact that they exist at all. If AKC does not believe that high volume breeding is inherently bad, then what problem are we trying to solve with PAWS? It would help to know the answer to these questions:
- If 20% of dog sales are made by high volume breeders,†what percentage of those sales is made by UNREGULATED high volume breeders?
- And of those sales, what percentage is made by UNREGULATED high volume breeders where the buyer does not visit the kennel?
- And of those sales, what percentage of these dog sales result in problems that cannot be solved by current consumer protection or anti-cruelty laws?
AKC might be correct in claiming that these high-volume retail breeders need additional regulation, but until they have answered the questions Iíve posed, should AKC be so readily giving up its principles? And shouldnít these problems be addressed by states as they have in the past rather than the federal government?
Fear of USDA Regulatory Change
The Animal Welfare Act does not exempt hobby breeders. Since 1970, however, the USDA regulations have equated retail breeders with 'retail pet stores' which ARE exempt under the statute. Not one Secretary of Agriculture in that time has attempted to change the regulations, nor has Congress evidenced any intent to bring retail breeders under the aeg is of the AWA.
When the DDAL brought suit to force the USDA to regulate hobby breeders, the agency spent three years in a costly lawsuit to defend that its regulation. Nothing in USDAís record indicates any intention to change their position in the future. AKCís position here is contradictory - on the one hand, they warn us that the USDA could easily eliminate this regulatory exemption, but on the other hand, they assure us that the USDA will remedy problems with PAWS when they write the regulations - and that AKC will have plenty of input at that time.
I have no doubt that the proponents of PAWS have good intentions, but those of us not under the spell of those 'good intentions' are concerned about unintended consequences of this bill.
PAWS is a badly drafted amendment to a badly written and repeatedly patched law. The result would be a playground for litigators. Is it '7 litters and 26 puppies' or '7 litters or 26 puppies?' Does the $500 exemption only apply to birds and furry animals, or does it include all other animals? Ambiguity in a statute leads to litigation. Who will be suing to enforce PAWS?
"The Humane Society of the United States (HSUS), the nation's largest animal protection organization, today announced that Jonathan Lovvorn will head its newly formed Animal Protection Litigation section to focus on the enforcement of animal protection laws.† Lovvorn will assume his duties as vice president on January 1, 2005.† The Animal Protection Litigation section is one of several new initiatives made possible by the recently announced combination of the HSUS and The Fund for Animals, and will add several additional litigators by the end of the year." January 1, 2005. HSUS press release.
Will PAWS affect rescue? Yes. Over the decades, federal courts have stretched the meaning of 'interstate commerce' in order to extend federal jurisdiction.† Rescuers are only exempt now because they fall under the same 'retail pet store' exemption as hobby breeders. At the very least,†PAWS will generate litigation to determine whether or not rescue organizations are engaged in commerce. As an attorney, I can tell you that there are arguments on both sides and whenever there are arguments on both sides, there will be litigation. Are our rescue organizations ready to spend years in court with HSUSí new litigation department?
Living With USDA Regulations
There are currently about 90 pages of USDA regulations for dog breeders. In its inspections, the agency uses engineering standards - standards that spell out exactly how to achieve an outcome - as opposed to performance standards - standards that define an outcome in detail and criteria for assessing that outcome, but do not limit the methods by which to achieve that outcome. AKC tells us:
"The regulations promulgated under the authority of this Act set certain minimum humane care standards which are not unlike those the AKC itself applies to the breeders it inspects. When this bill is enacted the USDA will have to write implementing regulations, including regulations covering breeders who raise puppies in their own homes. The AKC will certainly be involved in that process, and it is likely that our own standards will be a model the USDA will look to in crafting its regulations." AKC statement.
Is it likely that USDA will use one set of standards for commercial breeders and another for hobby breeders? With animal rights groups on one side favoring engineering standards and commercial breeders on the other insisting that the rules be applied equally to hobby breeders, we can expect litigation, followed by expensive and complicated federal regulation.
PAWS establishes the principle that there is a numerical threshold at which federal regulation is necessary. During the DDAL litigation, when the proposed numerical threshold was 'three breedable bitches', Noreen Baxter wrote an eloquent argument against a numerical criterion:
"The ANPR [Announced Notice of Proposed Rulemaking] is devoid of any commentary on why a new criterion was needed, why this criterion was selected, what other criteria may have been considered and rejected, and what specific objectives regulation of breeders based on number of breeding females is designed to accomplish. Under the circumstances, the public is not unjustified in perceiving that the regulatory changes under consideration in the ANPR are politically motivated, and not actually necessary." (Letter from Noreen Baxter, AKC Vice President for Public Education and Legislation, dated September 23, 1998 to the U.S. Department of Agriculture in opposition to the Petition of the Doris Day Animal League for rule-making. )
At the NC Federation of Dog Clubs meeting this weekend, one member said that state lawmakers have told her that when PAWS is enacted, they plan to use it as a basis for an even more restrictive state numerical threshold.
As Dr. Phil says, "The best predictor of future behavior is past behavior." Even Mr. Holt has acknowledged that we can expect the AR groups to attempt to lower the threshold in the future. This is exactly the type of 'new public policy precedent' that Mr. Holt repeatedly warned us against in the past.
Zoning and Other Local Restrictions
Many dog fanciers are already fighting restrictive zoning ordinances. It is highly probably that local officials will consider a USDA license as evidence that a breeder is engaging in commercial activity. Considering that the city of Dallas has been prosecuting hobby breeders for just selling puppies in the city limits, imagine the field day that will result when breeders are labeled with a USDA license!
Any time that AKC aligns itself with HSUS, DDAL and now PETA, even for the most innocuous legislation, it gives credibility to organizations dedicated to ending our hobby. Worse, AKCís support for PAWS has alienated virtually all of our allies and has divided our family against itself. Here is an excerpt from a letter written by Joan Miller of the Cat Fancierís Association:
"When AKC decides to "compromise" with organizations who want to stop all breeding this is actually capitulation. AKC has become a collaborator in advancing a detrimental process rejected by dog and cat breeders over many years for sound reasons. HSUS in an article praising the PAWS bill reiterates their well known stance - "the best dogs are the ones available for adoption at the local animal shelter". The PAWS bill opens the door to continuous pressure to lower the thresholds established because HSUS and DDAL consider all breeders to be unscrupulous commercial businesses that should be taxed and regulated by federal, state and local agencies." (Letter from Joan Miller, Cat Fanciersí Association, 8 June 2005)
What can we do about it now? First of all, we must defeat PAWS. At this point, any benefits derived from the bill are insignificant compared to the fact enacting PAWS would benefit the animal rights community and damage us. When PAWS is defeated, we must clean our house. By that, I mean that we must:
- Elect new leadership at AKC.
- Identify what, if any, real problems require federal intervention.
- Craft solutions that are in keeping with our principles.
- Draft legislation that will put those solutions into effect.
- Work with friendly legislators to get our legislation passed.
- Stop playing defense. We must take the offense away from HSUS and other AR organizations. We need to be the 'go-to guys' for lawmakers everywhere.
- Prepare for a long battle with animal rights groups. We must model ourselves after other successful special interest groups, such as the NRA and the AARP.
Other than the death of beloved dogs, no other experience in my 25 years in this sport has been so painful and disagreeable. I have not enjoyed the name calling and unpleasant references in the dog press, and have been deeply disappointed by the personal attacks resulting from my opposition to this bill. It would have been a lot easier to stand back and watch AKC self destruct and if I didnít care so much about our sport, I would have preferred to avoid the confrontation. However, in the words of Coach K, "Confrontation simply means meeting the truth head-on."
The truth is that PAWS is a bad bill and we must defeat it. If we cannot change the minds of our leaders, we must change our leaders.