Animal Protection Minnesota

In 2011, the USDA announced a proposed a "rule change" that would extend the protection of the Animal Welfare Act to more dogs and cats and other pet animals. On September 10, 2013, the USDA released its final rule in regards to retail pet sales. They chose to revise (narrow) the definition of "retail pet store."

Updating requirements to reflect changing times

When Congress passed the Animal Welfare Act (AWA) in 1966, it specifically exempted retail pet stores from licensing and inspection. This exemption was possible due to how Congress chose to define "retail pet store" in the law. The reason for the exemption (as explained by the USDA):

"At that time, retailers of pets covered under the exemption consisted mostly of traditional "brick-and-mortar" pet stores, as well as small-scale breeders whose place of business was typically their residence. Both types of retail outlets were exempted by the AWA as "retail pet stores" because, despite the many dissimilarities in how pet shops and small-scale residential breeders conduct business, they share in common a business model in which buyers visit their places of business and personally observe the animals available for sale prior to purchasing and/or taking custody of them."

In other words, the original definition of "retail pet store" in the AWA made an assumption that most animals sold at retail would be observed prior to purchase. And the definition of pet store was also very broad — it covered nearly all retail outlets. If you were a traditional pet store, like a Petland, and sold pet animals directly to consumers, you were exempted from licensing and inspection. Or if you sold directly to consumers over the Internet or by mail, telephone or any other method, you were exempted — you did not need a license from the federal government. These type of sales were defined as "retail" — selling directly to a consumer. (If you bred pet animals and/or brokered them and then sold to pet stores who, in turn, would re-sell to consumers, that would be defined as wholesale and you would need a federal license.)

How the internet changed pet sales

That was then. This is now. With the growth of the Internet in the 1990s, times changed and how pet animals were (and are) sold also changed.

Breeders realized they didn't need traditional pet stores anymore to sell a puppy or kitten. Breeders and other businesses started setting up websites to sell animals directly to consumers nationwide and claim "retail pet store" status, exempting themselves from oversight by both consumers and the USDA. Many retail sales became "click and ship" and sight unseen.

Even the USDA saw the market change: "With the dramatic rise in sight unseen sales have come increasing complaints from the public about the lack of monitoring and oversight of the health and humane treatment of those animals."

A new definition of "retail pet store" protects consumers

To reflect changes in the marketplace, the USDA revised the definition of "retail pet store" and related regulations under the Animal Welfare Act (AWA). One key change was to narrow the definition of "retail pet store" so that it now means:

"a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase, and where only the following animals are sold or offered for sale, at retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchillas, domestic ferrets, domestic farm animals, birds, and coldblooded species." In addition to persons that meet these criteria, retail pet store also includes any person who meets the criteria in 2.1(a)(3)(vii) of this chapter.

The goal was to try and prevent "sight unseen" sales. As stated by the USDA:

"When a buyer receives a sick or abused pet animal, sight unseen, the responsibility for correcting inadequate care has been effectively transferred from the seller to the buyer without the buyer's knowledge or consent. If that buyer is unable or unwilling to provide the pet animal with needed care, a shelter may become the default caregiver for that animal."

The USDA accepted comments from the public about the proposed rule change. During the 90-day comment period, the USDA received more than 210,000 comments.

This rule change took effect 60 days after it was published in the Federal Register. The rule was published on September 18, 2013, and went into effect on November 18, 2013.

Key concept behind "retail pet store" definition changes

The concept behind this rule change was for the pet animal to be "personally observed" before the animal is sold. As stated above, with the Internet and other selling methods, some animals have been sold "sight unseen" (i.e., consumer places an order online based on a website photo or calls the person over the phone and the animal is then shipped to the buyer).

The rule change was directly related to how the pet animal is sold — requiring that the buyer, seller and animal meet (be physically present) so that the buyer may look at (personally observe) the animal before purchasing or taking custody of it. In doing so, it is assumed that the buyer has a better chance of evaluating the health and humane treatment of the animal — before buying.

As stated in the USDA press release:

"The previous definition of "retail pet store" was developed more than 40 years ago, before the Internet provided an alternate method of selling pets to the public. Some breeders were selling pet animals sight unseen, without providing an opportunity for the buyer to observe the animal prior to purchase, as was intended by the regulation. ....

[The rule change] fulfills a commitment APHIS made in response to an Office of Inspector General (OIG) audit on dog breeders. The 2010 audit found that more than 80 percent of sampled breeders were not being monitored or inspected to ensure their animals' overall health and humane treatment resulting in some buyers receiving unhealthy pets — especially dogs. Instead, these breeders were selling pets over the Internet and claiming "retail pet store" status, exempting themselves from oversight by both consumers and APHIS. ...

Internet-based businesses and other businesses that sell animals sight unseen must now be licensed and inspected by APHIS to ensure the pets they sell to the public receive minimum standards of care."

The intent of this rule change was to close a loophole in the Animal Welfare Act that has, in some cases, threatened the health of pets sold sight unseen over the Internet and via phone- and mail-based businesses.

Unfortunately, it appears the intent and goal for the change has not produced the results desired. Sales of puppies online continue to flourish and it appears the USDA does not have the staffing required to track and license all those who need a license.

ALSO: Animal Folks has found that some breeders now use "nanny flights", where the consumer hires a "nanny" (person) who accompanies the puppy on the airplane and greets the person buying the animal in their own state. Cost to the consumer for this services tends to be $600-$700. It is unclear if this is a loophole to the federal law. Has the person already paid for the puppy before the flight was made? The nanny is a separate company, charging a separate fee -- so does this meet the definition of breeder and owner? We are looking into this action and if it violates the ANimal Welfare Act.

Other changes to Animal Welfare Act laws and definitions

Other changes in regulation included increasing the number of breeding females the person can have before a USDA license is required. Per USDA: This increase "will allow APHIS to better concentrate its resources on ensuring the welfare of animals at larger breeding operations. Breeders who maintain four or fewer breeding females are considered hobby breeders who already provide sufficient care to their animals without APHIS' oversight — provided they only sell the offspring of animals born and raise on their premises for pets or exhibition."

Exemptions to the revised Animal Welfare Act

Per USDA:

• Traditional, "brick and mortar" pet stores will continue to be exempt from federal licensing and inspection requirements under the Animal Welfare Act." [They fit the new definition — the buyer can literally observe the animal before buying.] However, "traditional retail pet stores that also sell animals sight unseen must be licensed and inspected."

Per USDA:

• "Many animal rescue groups, pounds, shelters and humane societies will continue to be exempt from APHIS regulations." However, the USDA has also stated that "some rescue groups/humane societies may need to be licensed if the transaction is not face to face" (i.e., if the group chooses to sell and ship an animal "sight unseen"). For clarification if your nonprofit group needs a USDA license, contact the USDA-APHIS-AC Office directly at:

Eastern Region (includes MN): 1-919-855-7100

Western Region: 1-970-494-7478

Per USDA:

• "Also exempt are the following: people who breed and sell working dogs; people selling rabbits for food, fiber (including fur) or for the preservation of bloodlines; children who raise rabbits as part of a 4-H project; operations that raise, buy and sell farm animals for food or fiber (including fur); and businesses that deal only with fish, reptiles and other cold-blooded animals."

The definition excludes—

(1) Establishments or persons who deal in dogs used for hunting, security, or breeding purposes;

(2) Establishments or persons, except those that meet the criteria in 2.1(a)(3)(vii), exhibiting, selling, or offering to exhibit or sell any wild or exotic or other nonpet species of warmblooded animals (except birds), such as skunks, raccoons, nonhumans primates, squirrels, ocelets, foxes, coyotes, etc.;

(3) Any establishment or person selling warmblooded animals (except birds, and laboratory rats and mice) for research or exhibition purposes;

(4) Any establishment wholesaling any animals (except birds, rats, and mice); and

(5) Any establishment exhibiting pet animals in a room that is separate from or adjacent to the retail pet store, or in an outside area, or anywhere off the retail pet store premises."

How did this rule change come about?

In 2010, an audit report was released by the Office of Inspector General (OIG). This audit (conducted over a two year period) assessed the Animal Care (AC) program — specifically, the OIG reviewed problematic breeders licensed by the USDA and how the AC inspected these facilities and enforced AWA standards. The audit concluded that:

• "the AC's enforcement process was ineffective against problematic dealers;

• AC's inspectors did not document violations properly;

• APHIS' new penalty worksheet calculated minimal penalties;

• APHIS misused guidelines to lower penalties for AWA violators; and

• some large breeders circumvented AWA by selling animals over the Internet."

The USDA agreed with many of the OIG's findings and recommendations. In response, the USDA created the APHIS' Enhanced Animal Welfare Act Enforcement Plan. This plan included specific action items; one item addressed the need for additional oversight of retail sales of pet animals.

The USDA has acknowledged that the marketplace has changed — and that, in addition to traditional brick-and-mortar pet stores, dogs and cats are now sold through the Internet and other retail venues.

While the USDA stated it would support legislation to amend the AWA to include retail sales, the Department also chose to act on its own. The USDA confirmed, through its lawyers, if it had the legislative authority to regulate Internet sales through rule-change. (Note: The law can be changed; but the rules enforcing that law can also be changed.) The legal answer: "USDA has determined that it has legislative authority to regulate Internet sales." Based on this confirmation, the USDA proceeded to developing proposed regulations to bring more pet animals sold at retail under the protection of the Animal Welfare Act.

NOTE: Years ago, a coalition of animal protection organizations challenged this "retail store" loophole. They believed all breeders should be licensed, whether they sell to consumers through pet shops or directly through the Internet or other means. The courts agreed, but the USDA appealed and the decision was overturned (see link below).

• Doris Day Animal League v. Veneman / United States 315 F.3d 297

The "retail loophole" continued to exist — until now, when the new rule goes into effect.

Potential concerns, considerations and questions

As noted above, the rule includes animals sold as pets: "Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, and cold-blooded species." However, this same definition also excludes "dogs used for hunting, security or breeding purposes." This means that dogs that are bred and sold for a certain purpose, such as hunting, breeding or security, are not inspected or considered worthy of healthy conditions.

As this rule is in regard to the selling and buying of pet animals, the focus is on the animal sold/purchased (available for sale). This means the breeding animals (not for sale) or the kennel conditions are not required to be observed by the public.

Also, one of the biggest exclusions in the Animal Welfare Act are for farmed animals — "animals used for food, fiber or other agricultural purposes."

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