How the Commerce Clause Protects Puppies


By: Christine Thebaud

In April 2018, Maryland became the second state to ban pet stores from selling puppies and kittens from out-of-state breeders to reduce the demand for dogs and cats born in “puppy or kitten mills.”[1]  The new business regulation prohibits retail pet stores from offering any dog or cat for sale that is not either locally bred or featured as adoptable through an animal welfare organization or animal control.[2]  While animal rights advocates laud the legislation, several Maryland pet store owners and out–of–state breeders have filed a lawsuit challenging the law before it goes into effect January 1, 2020.[3] On January 1stthe stores claim they will be forced out of business.[4]  

            The stores allege the law enables discrimination against out-of-state breeders and in-state pet stores prohibited by the Commerce Clause, but two different rationales negate these claims.[5] The first is an exception to the dormant Commerce Clause, and the second side–steps the clause entirely.  The dormant Commerce Clause prevents states from restricting interstate commerce for the benefit of intrastate commerce.[6]  However, the dormant Commerce Clause can be displaced in areas where Congress has specifically authorized state and local governments to act.[7]  In 1970, Congress enacted the Animal Welfare Act to regulate the sale of animals to federal government agencies and research centers.[8]  Congress authorized state and local authorities to also regulate the sale of animals by explicitly statingnothing within the Animal Welfare Act prohibits states or municipalities from promulgating additional standards.[9]  Maryland’s law is such an additional standard that is concerned with the source of dogs and cats sold in pet stores to unsuspecting, prospective owners.  As the Animal Welfare Act limits where research and federal government facilities can purchase dogs and cats, Maryland’s law limits where Maryland pet stores can purchase dogs and cats for resale.  By building on the Animal Welfare Act, as Congress authorized Maryland to do, Maryland’s law does not violate the dormant Commerce Clause.   

            Park Pet Shop, Inc. v. City of Chicago[10]exemplifies the second approach. Chicago’s city council addressed growing concerns over local pet stores being sourced with puppies born into puppy mills by enacting an ordinance.[11] The ordinance restricted the sources pet stores could buy cats and dogs from to animal control centers, humane societies, and rescue organizations.[12] Two Chicago pet stores and a Missouri dog breeder challenged the ordinance as a violation of the dormant Commerce Clause.[13]  The Seventh Circuit noted the dormant Commerce Clause does not apply to every local or state law because not every law affects interstate commerce.[14]  Instead such laws fall into three potential categories:  — (1) laws that explicitly discriminate against interstate commerce; (2) laws that bear more heavily on interstate than local commerce; and (3) laws that result in no disparate impact between interstate and local commerce.[15]  The ordinance fell into the last category because all breeders were similarly disadvantaged by the ordinance, and the dormant Commerce Clause was not violated.[16]  

            Maryland’s legislation differs from Chicago’s ordinance, but nonetheless is constitutional. Maryland permits pet stores to purchase dogs and cats from local breeders, unlike Chicago’s ordinance, seemingly only disadvantaging out–of–state breeders.[17]  However, like Chicago’s ordinance, Maryland’s law does not ban all out–of–state sales. Private citizens may purchase puppies from out–of–state breeders.  While the stores acknowledge private citizens still have options, they claim the law will force them to shut down by cutting off their access to out–of–state puppies.[18]  Yet the stores have been aware of the law’s substance and start date for over a year.[19]  By refusing to create new business relationships with local breeders, the stores have demonstrated they do not see local breeders as viable substitutes for out–of–state breeders.  In–state breeders have received no benefit over out–of–state breeders because the stores have chosen to shut down rather than replace their out–of–state sources with local ones.  Therefore, there is no disparate impact between in and out–of–state breeders, and the dormant Commerce Clause does not bar Maryland’s law.    

            Maryland may only be the second state to enact such a law, but nearly 260 municipalities have enacted ordinances aimed at banning pets stores from doing business with puppy mills.[20]  Taking note of the increased popularity of these regulations and the legal arguments in support of them, retail pet stores nationwide should see Maryland’s law as a forewarning that their own states may restrict pet store sourcing.  Those stores would be well advised to begin curating relationships with rescue organizations and local breeders —  just in case their state is next.


[1]Rachel Chason, Gov. Hogan Signed a Law Banning Maryland Pet Stores from using “Puppy Mills.” Store Owners are Pushing Back, Wash. Post (Apr. 24, 2018), https://www.washingtonpost.com/local/md-politics/maryland-to-become-second-state-to-ban-sale-of-puppies-in-stores-but-the-store-owners-are-pushing-back/2018/04/23/330ec5a2-4356-11e8-bba2-0976a82b05a2_story.html.

[2]H.B. 1662, 438th Gen. Assemb., Reg. Sess.  (Md. 2018).  

[3]Id.at § 3.

[4]Complaint at 10, Just Puppies, Inc. v. Frosh, No. 1:19-cv-2439 (D. Md. Aug. 23, 2019). 

[5]Id.at  29-34. 

[6]See Or. Waste Sys. v. Dep’t of Envtl. Quality, 511 U.S. 93, 98 (1994).

[7]Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 782 (4th Cir. 1996).

[8]See 7 U.S.C §§ 2131, 2137-2138 (outlining Congress’ purpose behind the act and regulating where research and government facilities can purchase dogs and cats).

[9]See7 U.S.C. § 2143 (a)(1)-(8).

[10]872 F.3d 495 (7th Cir. 2017).  

[11]Id.at 498. 

[12]Id.

[13]Id.

[14]Id. at 501. 

[15]Id. at 502.

[16]Id.

[17]Chicago, Ill., Code § 4-384-015 (b) (2016).

[18]Complaint at 10, 33, Just Puppies, Inc. v. Frosh, No. 1:19-cv-2439 (D. Md. Aug. 23, 2019).

[19]Chanson, supra, note 1.

[20]Id.

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