by Rory Kress
“A teachable moment is a minor noncompliance: it’s not having any discernable impact on the animal or the dog…[and] it hasn’t been a problem before. So we haven’t seen it before, we haven’t mentioned it before, it hasn’t been cited as a noncompliance before, and it hasn’t been a teachable moment before,” Gibbens explains.
But according to Bob Baker, the executive director of the Missouri Alliance for Animal Welfare (MAAL), these teachable moments are intentionally being used to leave violations off the record and help keep USDA-licensed breeders in business—and they’re part of a larger pattern of the USDA changing inspection report terminology to make it more difficult for states to regulate which breeders their retailers can purchase from.
Baker is widely considered to be one of the nation’s top experts on commercial dog breeding and has been instrumental in leading the fight for better legislation and enforcement both in Missouri and nationwide. In fact, when I first started researching this topic, nearly every expert in animal law, behavior, ethics, and health that I spoke to would conclude our conversation by suggesting I speak with Baker. I’ve since found his perspective to be invaluable to my coverage as he is a very rare breed in the fight for improving animal welfare: he is able to zero in directly on the rational and legal arguments for what is wrong with the current system without falling into the trap too many animal activists do of overrelying on the emotional pull of their battle.
Baker also holds the distinction of being the person who first sounded the alarm about the USDA’s teachable moment policy.
It was 2014, and Baker was attending a USDA breeder conference in Missouri. He recalled the room being hot with outrage over the fact that a growing coalition of municipalities and states were passing laws limiting the number of violations a breeder could have on his inspection reports and still sell to local pet shops.
“[The breeders] were just livid. They were claiming that [these laws were] very, very much affecting their business… So Gibbens said, ‘Don’t worry about that. We’re going to get around this… If we see you have violations and they aren’t real serious, we’ll just mark them down as teachable moments,’” Baker recalls. “The dog breeders were all upset, and they said ‘Will there be a record of these teachable moments?’ And USDA said, ‘No. The only record of it will be on a separate sheet of paper from your inspection report, and the inspector will write that down, but that will not be in his field notes or anything that can be obtained through a FOIA [Freedom of Information Act] request. You will be the only one who will see it. [The inspector] will write it down on a sheet of paper, and he will give it to you.’”11
Gibbens confirms to me that he first announced the change in policy at that 2014 meeting fully aware that Baker and other animal welfare organizations were present.
But Baker points out one of the many reasons why this type of process is problematic: a repeated violation requires an escalation of enforcement action. But if a violation—even a minor one—is intentionally left off the record, how will an inspector know whether it is a new or a repeat violation?
Under pressure from animal advocates led by Baker, the agency released a stakeholder’s report, coming out officially with the teachable-moment policy in January 2015. Today, the agency says that inspectors document teachable moments on a separate piece of paper from the official report but retain them on file. They are now available by FOIA request—but only if that request specifically calls for a breeder’s teachable moments. Even a FOIA request calling for all a breeder’s records will not include any teachable moments.
“The inspector has to believe that the issue can be corrected quickly and that the licensee intends to correct it quickly. There’s some subjectivity to it,” Gibbens tells me of the teachable-moment policy. “So at the end of the inspection, when they hand over the inspection report, there’s also a list of any teachable moments. The licensee gets a copy, the inspector gets a copy, and a copy goes to the supervisor.”
“Is there a punch list of deadlines on the teachable moments?” I ask.
“No,” Gibbens tells me. “They’re not treated as noncompliances. If there was anything on there that was affecting an animal, it wouldn’t be a teachable moment. It would be cited on the inspection report.”
But as my own investigation has since found—and as I will demonstrate later in this book—that may not be entirely the case. In Missouri, one of the only examples of where state inspectors are empowered to create their own inspection reports, I have found multiple, serious animal welfare violations documented just hours before federal inspectors have visited the exact same facility and documented no violations at all—neither on the official record nor in a teachable moment.
It’s easy to write all this off as mere semantics: a direct violation, a teachable moment, and so on. But words mean a lot when you fight for years to pass legislation based on these terms and then the USDA changes the rules of the game. This is exactly what those breeders were fighting for in that 2014 conference, when they were placated with the teachable moment policy. Now they can circumvent laws in a growing number of municipalities and states where pet shops are barred from purchasing dogs from breeders with one direct violation on the record. Other ordinances also limit the number of nondirect violations a breeder can have on its USDA reports and still sell to pet stores.
“If you have laws passed based on certain terms that are used at the time and then you have a new term that’s introduced thereafter, it can obviously wreak havoc with a law that’s been passed with much effort and of course can serve to undermine that law. And certainly it raises questions and concerns for us,” says Cathy Liss, president of the Animal Welfare Institute.12
Bob Baker agrees that this type of labeling is “just another method of helping the breeders circumvent these laws.”
“Inspectors, when documenting a teachable moment, write that there were ‘no noncompliant items identified.’ It’s a felony to falsify a federal document. If they’re writing up a noncompliant item as a teachable moment…there’s an intent to be fraudulent to help the breeder get around the state laws,” Baker says. “The USDA is undermining the consumer. You think your New Jersey pet store is only buying from good breeders, but you might be buying from one with teachable moments or a direct violation that’s been knocked down to an indirect violation.”
In one of my meetings with Gibbens, I try to drill down on exactly what constitutes a direct violation.
“If I’m an inspector,” I say, “and I show up and—oh my goodness, there are dead puppies from a litter that didn’t go right. Is that something you consider direct?”
I’d assumed the answer would be Of course dead dogs are a direct violation. I was wrong.
“It’ll be based on what the inspector sees and finds out. It may still be occurring. So if it’s still occurring, it would be a direct. If it was something that, it’s done, and we’re just seeing the results, and whatever caused it is not still there and likely to cause it with another litter, they’ll probably not put it as a direct,” Gibbens says, explaining that even with dead puppies found on site, the most damning designation of direct violation is not a certainty.
“It’s outrageous,” Liss says of the fact that a USDA inspector can find dead dogs on a breeder’s property and still not slap the operation with the designated direct violation. “Well, they’re dead, so it’s not an animal at risk because the risk is over. It’s dead.”
Liss continues, citing her organization’s concern with the USDA’s overreliance on categories to define what’s wrong and exactly how wrong it is. “I don’t even like [to use] categories to the different types of citations that are made—direct or nondirect. A violation is a violation is a violation. And to me, you start creating all kinds of gray when you are separating some kinds from the others or deciding sometimes you don’t have to note them,” Liss says, pointing out that the USDA is now rolling out yet another new designation for violations on reports called critical.
> “I think then you get caught up on which category they’re in, instead of recognizing that none of it should be happening,” Liss says.
But as I was chasing my tail, digging deeper into the USDA’s ever-shifting nomenclature of violations, something even more outrageous happened.
MAKE AMERICA TRANSPARENT AGAIN
For much of the last decade, the USDA made its most recent inspection reports available through an online database on its website. While imperfect, this tool allowed consumers, animal welfare advocates, pet shops, and lawmakers to see how many violations a breeder had on the record—of course, with teachable moments omitted. As I conducted the bulk of my investigation into the industry, these reports were available online, allowing me to quickly reference the past three years or so. While I went on to discover that these online reports were often misleading in that they failed to actually document violations, they were at least an effort at transparency. In our initial conversation, the USDA’s Gibbens gave himself and his department a pat on the back for being transparent by maintaining the database. So despite my reservations about the accuracy and thus the value of these reports, they were at least a starting point for a consumer wanting to make a more informed decision.
But on Friday, February 3, 2017, the online database of inspection records for the USDA’s Animal Care program disappeared. It was day fifteen of the newly minted Trump administration, which had yet to even confirm a Secretary of Agriculture. There was no press release, no tweet, no notice of any kind. After years of providing immediate access to these inspection reports to whoever was willing to search online, the tool was deactivated. Now, to access any records, one would have to submit a Freedom of Information Act (FOIA) request. And wait. And wait.
Most major news outlets missed the story at first, and for a few days, this change went relatively unreported. But animal welfare groups were watching.
By Monday, February 6, 2017, the Humane Society had fired its opening salvo against the Trump administration, sending the USDA an official notice that it would seek legal action if the files were not restored.13
The next day, the USDA responded to the mounting pressure, attempting to cast blame on the Obama administration for the decision. The agency released a statement on its website saying the move to pull these records began “in 2016, well before the change of administration” and came from an internal effort “to balance the need for transparency with rules protecting individual privacy.”14 In the days that followed, I spoke again with Gibbens, who declined to comment on the suppression of these records but did reiterate that the process began before the start of the Trump administration.
However, Matt Herrick, the former USDA communications director for the Obama administration denied that his team ever would have suppressed these inspection reports. He tweeted: “Decision by @usda 2 remove animal abuse reports not required. Totally subjective. Same option given 2 past admin. We refused. #transparency.”15
So why does all this matter?
Currently, the state of California and dozens of municipalities both large and small ban pet stores from selling anything other than dogs obtained from a shelter or rescue. These include cities like Los Angeles, Philadelphia, Miami, Chicago, Las Vegas, and others. However, seven states plus New York City and several surrounding counties have laws on the books that regulate which breeders can supply pet stores in their jurisdictions. That’s Arizona, Connecticut, New Jersey, Louisiana, Maryland, Ohio, and Virginia—plus New York City and Suffolk and Nassau Counties, which make up much of Long Island. These regulations, which impact tens of millions of American consumers, make it illegal for pet stores to purchase from unlicensed breeders or those with direct and nondirect violations on their recent inspection reports.
Unlike the outright ban on retail pet shops, the regulatory laws in these seven states and the largest city in the nation are now threatened even more than they were by the teachable moment policy. These laws are not enforceable without immediate access to USDA inspection reports that inform pet shops of who they cannot purchase from. Access to this database was a major consideration when these states passed laws restricting the types of breeders from whom pet shops could purchase. Now it’s gone.
Put it this way: imagine if access to everyone’s driving records was suddenly—and without warning—ended by an order from the federal government. A state trooper could pull a driver over, and he would have no way to view that person’s record. Maybe that driver is a law-abiding citizen with no marks against him. Or maybe that driver is wanted in two states and has been arrested in the past for multiple DUIs. There would be no way to know, because all the records that would tell law enforcement how to proceed and do their job are now inaccessible without a FOIA request that could take years to be answered. Or never get answered at all. Now, the laws are effectively worthless.
Albeit unlikely, that example makes it easy to see how the Trump administration’s suppression of USDA inspection reports neuters the hard-won legislation that aimed to put the bad actors out of business while keeping the responsible breeders in business. Any responsible, USDA-licensed breeders out there should be the first to cry foul as now they’re indistinguishable from those who are not. For what it’s worth, this move also marks a clear instance of the federal government swooping in to negate the rights of the states to decide how to regulate the retail pet sale industry—an interesting action for a Republican White House.
I spoke to the Trump administration’s transition team leader for the USDA, Brian Klippenstein, several months ahead of his appointment. At the time, he was the executive director of farmer-advocacy group Protect the Harvest. In our conversation, Klippenstein made his views on pet sale legislation—both the laws banning purchase from licensees with violations on the record and those that banned pet shops from selling any animals not obtained from a rescue—very clear. Looking back on this conversation, the writing was on the wall for what his first steps would be in becoming the de facto leader of the USDA.
“There are over eighty jurisdictions in America where it’s illegal to sell pets at retail. San Diego, Phoenix—big places. We have nothing against a rescue or a shelter—far from it. I’m delighted they’re there,” Klippenstein told me. “But it used to be that you could get a pet from any shelter or rescue [for little or no cost] but now, in some of these jurisdictions, you have to pay—and in some, you have to pay a lot. The interesting part of that to me, as a tactical point, is you have your competition outlawed so you have a local, legislative monopoly, and now they’re in the retail pet sales business… It’s a fascinating tool if you can get a legislative body to let you have monopolistic control.”16
By withholding the USDA inspection reports from the internet, at least Klippenstein and his team can ensure that in the jurisdictions where pet suppliers are regulated and not all-out banned, the competition to rescues and shelters is alive but not well.
It’s hard to say how the USDA will end up balancing breeder privacy with transparency. The agency would not give me any clues when I asked directly. It seems that if breeder privacy and transparency are both essential for a well-functioning pet industry, the USDA would have at least consulted stakeholders for a way to make this change responsibly, instead of simply yanking the entire database unannounced. I could foresee a situation where this move backfires and animal welfare advocates will respond by pursuing more of the all-out retail pet store bans that the industry so reviles. After all, if the federal government wants to prevent states from regulating the industry and enforcing their own laws, maybe the only way to crack down on bad actors is to encourage more states and cities to outright ban all pet stores from selling any puppies not obtained from rescues.
Whether the full database of inspection records will ever come back online has yet to be determined. Many of my sources tell me they are doubtful that it will ever be restored in full. My conversations with Gibbens at the USDA reveal a more nuanced perspective. Keep in mind, Gibbens is on the operational sid
e of the agency and does not have much say into its policies.
“I know that the agency wants to be as transparent as it can be within the legal confines of the laws we have to comply with. Not to sound bureaucratic, but that’s just the way it is,” he says.
I ask if withholding these reports was a way of obfuscating the truth or if suppressing the reports was endangering the consumer who wants to know where his puppy is coming from before making a costly purchase.
“The agency is considering, in the face of this, to be as transparent as we can legally be… The industry—the pet distributor industry—used our inspection reports as well. And so now they’re at a loss, because they can’t look at those reports instantly and see if they want to buy from that breeder or not,” Gibbens says.
In the meantime, animal welfare advocates seem drained of hope. One animal welfare lobbyist on Capitol Hill told me in our interview that perhaps it would be best for me to not report on anything dog-related at all during the Trump administration lest officials become aware and make things somehow even worse.
Maybe she’s right and now isn’t the right political climate to be publishing an investigation on this topic. Maybe by the time you read this, things will have changed. But I have to believe that even those who supported the Trump administration can agree that the welfare of breeding dogs must improve—assuming they can be made aware of the problems. Because our love for dogs is not a partisan issue. Look at it this way: in 2016, 54.4 million American households—or about 137.6 million people—owned at least one dog.17 In 2016, around 130 million Americans voted in the presidential election. Sure, maybe not all the 137.6 million dog owners in America are eligible voters, and maybe dogs themselves can’t vote, but all the same, it sure looks like a lot more of us voted for “dog” in 2016 than anyone else.
CHAPTER THREE
The Dog Farmers
