By David Galperna summer associate at Fox Rothschild LLP, based in the firm’s Princeton office
A recently enacted Virginia law amending Va. Code § 3.2-6511.2 imposes strict requirements on commercial dog and cat breeders who sell animals “for experimental purposes,” like research. Senate Bill 87, and its counterpart House Bill 1350, was introduced in response to public concerns about numerous alleged Animal Welfare Act (AWA) violations by Envigo, the state’s leading supplier of research animals. Envigo was also targeted by People for the Ethical Treatment of Animals (PETA) in an undercover investigation and alleged findings which gained widespread attention.
The new law effectively extends to breeders of research animals the same standards and penalties that currently apply to other dealers and breeders in Virginia. As of July 1, 2023, dealers and dog and cat breeders that supply these animals to research facilities will be prohibited from importing for sale, selling, or offering for sale any dog or cat bred by a person who has received a single citation for a direct or critical violation under the AWA. The same restrictions apply if the breeder received three or more indirect or noncritical violations, or two consecutive citations for no access to their facility. Anyone violating this section is guilty of a Class 1 misdemeanor each dog or cat imported, sold, or offered for sale, punishable by up to twelve months in jail and / or a fine up to $ 2500.
The statute is ambiguous as to the length of the prohibition, and the ambiguity is compounded by the lack of definitions for “direct,” “indirect,” “critical,” and “noncritical.” While definitions for “direct” and critical ”violations can be found in the US Department of Agriculture (USDA) Animal Welfare Inspection Guide, this guidance is not legally binding:
“The Inspection Guide is not a Regulation or Standard and does not rise to the level of policy. . . It does not add to, delete from, or change current Regulations or Standards. ” Animal Welfare Inspection Guide, at ‘Purpose’ (available at https://www.aphis.usda.gov/animal_welfare/downloads/Animal-Care-Inspection-Guide.pdf)
Virginia’s new law has been lauded by advocates as an example for other states to follow if they wish to penalize and shut down breeders, circumventing USDA’s enforcement review process. As animal law professor Russ Mead has noted, “[t]he Virginia law is ‘brilliant’ for providing states an immediate means to police research breeders, which are frequently exempt from state animal cruelty laws. ” (see Meredith WadmanIn a First, State Bill Would Require Nearly Perfect Welfare Record for Research Dog and Cat SuppliersScience (March 9, 2022), available at https://www.science.org/content/article/first-state-bill-would-require-nearly-perfect-welfare-record-research-dog-and-cat (citing Russ Mead)).
However, while there are specific exemptions to state animal cruelty laws that permit biomedical research to be conducted as long as facilities are in compliance with federal laws, state laws generally govern animal breeding operations.
Also, although Virginia specifies that “[n]o dealer or commercial dog breeder shall import for sale, sell, or offer for sale any dog bred ”at a facility receiving certain citations, Virginia has no jurisdiction over dealers or breeders outside the state. Regardless, dealers and breeders outside of Virginia should be aware of any pending legislation in other states that may impose similar prohibitions, given the Virginia model that punishes even a single AWA citation violation.
Additionally, the law, and its effect of circumventing the USDA’s review process, raises significant constitutional questions. The statute bars breeders from selling animals to research institutions if it receives certain “citations” on inspection reports. The AWA, on the other hand, does not treat citations or warning notices as violations. Instead, the federal law expressly provides that suspected violators are entitled to an internal review before a determination of violation is finalized. Suspected violators are also given the right to appeal a final order to federal court. See 7 USC §§ 2149 (b), (c). This comports with the Administrative Procedure Act, which gives parties adjudicating a matter before a federal agency the right to a hearing on the record. See 5 USC §§ 554 (a), (c). If the Virginia law is interpreted to punish breeders for mere citations or suspected violations of the AWA, without first giving them an opportunity to contest these allegations, the law could be successfully challenged for a due process violation.
The statute also faces a possible preemption challenge under the AWA. The federal law explicitly vests the federal courts with jurisdiction to hear violations and all other cases arising under the act. See 7 USC §§ 2146 (c), 2149 (c). Although the AWA contemplates cooperation with local officials (see, eg, 7 USC § 2143 (a) (8); 7 USC § 2145 (b)), those provisions are narrowly tailored and do not remove federal control over enforcement of the AWA. Past federal court decisions dismissing preemption challenges often dealt with state and local laws supplementing AWA rules and regulations, not laws authorizing state enforcement of federal violations like the one in Virginia. See, eg, DeHart v. Town of Austin39 F.3d 718 (7th Cir. 1994) (finding the AWA did not preempt a local ordinance banning ownership of certain wild animals); Mo. Pet Breeders Ass’n v. Cnty. of Cook, 106 F. Supp. 3d 908 (ND Ill. 2015) (dismissing plaintiffs’ preemption challenge to county ordinance regulating the sale of dogs, cats, and rabbits by pet stores); NY Pet Welfare Ass’n, Inc. v. City of Elizabeth, 143 F. Supp. 3d 50 (EDNY 2015) (holding that local laws prohibiting the sale of dogs and cats by certain USDA license holders do not conflict with the AWA). Despite these findings, questions remain as to their validity and application to the Virginia law.