BILL ANALYSIS
AB 418
Page 1
Date of Hearing: April 5, 2005
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 418 (Koretz) - As Introduced: February 15, 2005
SUMMARY : Makes it a misdemeanor for any person to perform, or
otherwise procure or arrange for the performance of, an ear
cropping procedure on any dog within California, except as
performed by a licensed veterinarian solely for a therapeutic
purpose. Specifically, this bill :
1)States any person who performs, or otherwise procures or
arranges for the performance of, an ear cropping procedure on
any dog within California is guilty of a misdemeanor.
2)Provides that this section does not apply to a procedure
performed by a licensed veterinarian solely for a therapeutic
purpose.
3)States nothing in this provision prohibits any of the
following:
a) Showing a dog with cropped ears in a dog show or
competition;
b) Owning or harboring a dog with cropped ears; or,
c) Selling, buying or adopting a dog with cropped ears.
4)States that specified peace officers or Humane Society
officers may enforce this statute.
5)Provides that any person who violates this section is subject
to a civil penalty not to exceed $10,000 for each violation
payable to the local agency that initiated the proceedings.
6)Provides that the district attorney or city attorney where the
violation occurred may also prosecute this section.
7)Provides that for the purposes of this statement, the
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following terms have been defined:
a) "Ear cropping" is defined as the surgical alteration,
manipulation, or removal of any part of a dog's ear so that
the ear then heals in a pointed or erect manner.
b) "Therapeutic purpose" is defined as a medically
necessary procedure to address a disease or injury of the
dog's ear or address a condition that jeopardizes the dog's
health. "Therapeutic purpose" does not include the
prevention of ear infection.
EXISTING LAW :
1)Provides that is a misdemeanor punishable by a maximum of one
year in the county jail and a fine of not more than $20,000 to
maim, mutilate, torture, or wound a living animal or
maliciously or intentionally kill an animal. [Penal Code
Section 597(a).]
2)States that every person having charge or custody of an animal
who overdrives; overloads; overworks; tortures; torments;
deprives of necessary sustenance, drink, or shelter; cruelly
beats, mutilates, or cruelly kills; or causes or procures any
animal to be so overdriven; overloaded; driven when
overloaded; overworked; tortured; tormented; deprived of
necessary sustenance, drink, shelter; or to be cruelly beaten,
mutilated, or cruelly killed is, for every such offense,
guilty of a crime punishable as an alternate
misdemeanor/felony and by a fine of not more than $20,000.
[Penal Code Section 597(b).]
3)States that it is a misdemeanor to cut the solid part of the
tail of any horse in the operation known as "docking" or in
any other operation performed for the purpose of shortening
the tail of any horse in California. (Penal Code Section
597n.)
4)Regulates the practice of veterinary medicine under the
Veterinary Medicine Practice Act. (Business and Professions
Code Section 4811 through 4831.)
5)States that a person practices veterinary medicine when he or
she performs a surgical or dental operation upon an animal,
among other things. [Business and Professions Code Section
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4826(d).]
6)Regulates the care and hygiene standards for veterinary
offices, including operating rooms. (16 C.C.R. Section 2030.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill is
intended to protect dogs from the archaic, cruel and inhumane
practice known as ear cropping, which is surgical removal of
any portion of a dog's ear flaps, the pinnae. Ear cropping is
a senseless surgery that is painful and disfiguring to the
dogs. Nearly all dog ear crops are done for cosmetic reasons,
to give certain breeds 'desirable' traits, and provide no
medical benefits to the dog. Most veterinary organizations
are opposed to ear cropping. In fact, relatively few vets
actually will perform the procedure as it is done solely for
the aesthetic value to the owner or antiquated 'breed
standards'.
"Ear cropping is performed on puppies at 8 to 12 weeks of age.
The procedure involves full anesthesia, which in itself has
risks. Then, the ears are cut, sutured and shaped to stand
erect rather than normally floppy. After surgery, the ears
are splintered or taped to a rack with adhesive for weeks.
Frequent follow-up visits are needed and sometimes additional
surgery is required to ensure the ears do not heal wrinkled."
2)Penal Code Section 597 is not Unconstitutionally Vague : The
court held in People vs. Speegle (1997) 53 Cal.App.4th 1405
that Penal Code Section 597 was not unconstitutionally vague
because it gave fair notice of an objective standard of
reasonableness in the provision of sustenance, drink, and
shelter, and in the avoidance of infliction of suffering. The
court held that the fact that defendant had to assess the
point at her conduct became criminally negligent did not
violate due process.
3)Survey on California Veterinarians' Support to Ban Ear
Cropping: Zogby International submitted a survey to the
Association of Veterinarians for Animal Rights arguing,
"[t]hat a significant majority of California veterinarians do
not practice ear cropping. Despite the strength of this
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percentage, a smaller majority of vets would support
legislation to ban the practice. In addition, equal
percentages both support and oppose a complete prohibition on
ear cropping in California. Since it appears that vets in
this survey already agree with many of the arguments made by
some animal experts that the procedure is cruel, painful and
unnecessary, it is perplexing that more do not completely
support a prohibition. It could be that the vets are implying
that because most of them do not practice it at all or rarely
practice it, ear cropping does not require an outright ban.
"In this survey, the vets who specialize in small animal
practice are more likely than those in a mixed practice of
small and large animals to support a ban. Only minor
percentages, less than 30% total, say they do it for cosmetic
reasons, client needs, or medical or therapeutic purposes.
Three-fourths of vets overall disagree a veterinarian should
do an ear cropping even when it is not necessary for the
health and well-being of the dog. An overwhelming majority
disagrees that ear cropping is not painful for a dog during
the post-operative period.
"This leads one to question how much of the procedure is driven
by client demand, specifically from customers who merely wish
to have their dogs look better cosmetically. It might be
necessary then for the Association of Veterinarians for Animal
Rights to educate the public more than the vets about the
detrimental effects of ear cropping."
4)Where is Ear Cropping Prohibited ? According to the author and
the European Boxer Zone ( www.euro-boxer.com ), "The practice of
dog ear cropping is actually against the law in Austria,
Belgium, Denmark, Finland, Greece, Luxemburg, Norway,
Portugal, Sweden, Switzerland, Turkey, Cyprus, Czech Republic,
Norway and the Canadian Provinces of New Foundland and
Labrador. France, Italy and Holland have signed a European
Convention to prohibit any sort of cropping on animals for
aesthetic reasons, but have not ratified; therefore, it is
still legal".
5)Breed Standards of the American Kennel Club (AKC) : As quoted
by the author, "The position of the AKC is 'there is nothing
in AKC rules or in any breed standard that compels an owner to
have this procedure performed as a prerequisite to entry at a
dog show. Even if it is traditional in a particular breed
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that the dogs have this procedure, it has the same potential
to win as any other dog of the breed and will not only be
judged based on the compliance of that dog to the breed
standard. The AKC recognizes that ear cropping, tail docking
and dewclaw removal, as described in certain breed standards,
are acceptable practices integral to defining and preserving
the breed character and/or enhancing good health. Appropriate
veterinary care should be provided. AKC rules do not prohibit
changes in appearance except as specified in the standards for
the breed. If a breed standard provides for ear cropping,
tail docking, or dewclaw removal, it is permitted. No AKC
breed standards has a disqualification for any of these
alterations.' "
6)AKC's Stated Eligibility for Dog Shows : The author points
out, "AKC Eligibility for Dog Shows, Chapter 11, Section 8-D
states, 'Any dog whose ears have been cropped or cut in any
way shall be ineligible to compete at any show in any state
where the laws prohibit the same except subject to the
provisions of such laws'. This regulation only prohibits dogs
from entering shows if it is illegal to show dogs with cropped
ears under state law."
7)Some Breed Clubs Perpetuate the Perception That Cropped Ears
are Required for Dog Shows : The Association of Veterinarians
for Animal Rights states in their letter of support, "The
American Kennel Club allows uncropped dogs to participate in
its dog shows. But, because a certain look is still
perpetuated by some breed clubs, many thousands of dogs
undergo this painful, unnecessary surgery every year. And,
even among the four commonly cropped dog breeds, the opinion
of many breeders is that the practice is cruel and archaic."
8)Ear Cropping Does Not Prevent Ear Infections : The Association
of Veterinarians for Animal Rights (the sponsor of this bill)
states in its letter of support, "More than 20 countries
already ban dog ear cropping because it is considered a
'mutilation' and is therefore cruel. Further, many veterinary
associations either condemn ear cropping or state that it is
an unnecessary medical procedure.
"Ear cropping does not prevent ear infections. Many breeds
which routinely have ear infections, such as the spaniel and
poodle, do not have their ears cropped, and dogs with lesser
predisposition to ear infections frequently do. A German
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study of otitis (ear infection) in more than 16,865 dogs
revealed that the uncropped ears of the boxer in England
showed no greater otitis frequency than the cropped ears of
the boxer in Switzerland."
Dr. Lara Marie Rasmussen, Associate Professor at Western
University of Health Sciences, College of Veterinary Medicine,
stated in her letter of support, "The proposed medical
necessity for ear removal (i.e. ear infections) is called into
question based on the sparse scientific literature . . . .
Ear infections are common in other breeds (with floppy ears),
but floppy eared dogs from traditionally cropped breeds do not
have a higher prevalence of infection."
9)Arguments in Support :
a) The People for the Ethical Treatment of Animals states,
"Dogs are usually subjected to this frivolous procedure
when they are just 8 to 12 weeks only, and it is carried
out strictly for cosmetic reasons. According to the
American Veterinary Medical Association, ear cropping
causes pain and distress and carries with it the inherent
risks of anesthesia, blood loss, and infection. The trauma
of needless surgery is not all dogs endure as they are also
put through the confusion and discomfort of having their
ears repeatedly taped to stand erect for some time
afterwards, again purely for cosmetic purposes. Ear
cropping also perpetuates the harmful idea that dogs are
nothing more than accessories and can be acquired,
mutilated through surgery and even discarded if the owner
tires of them.
"Germany, Austria, the United Kingdom, and at least 17 other
countries have banned ear-cropping. It is time for
California to lead the way here in the United States - as
it has in so many other matters - and end this frivolous
and cruel practice."
b) The Paw Project states, "Ear cropping is already banned
in over two dozen countries, and most veterinary
associations have taken a stand against ear cropping in
dogs for cosmetic reasons. Both the American Veterinary
Medical Association and the American Animal Hospital
Association state that ear cropping in dogs for cosmetic
reasons is not medically indicated nor if benefit to the
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animal. The California Veterinary Medical Association
(CVMA) supported last year's bill after a Zogby Poll of
their membership revealed that most CVMA members do not
think dog ear cropping should be performed for aesthetic
reasons."
10)Arguments in Opposition :
a) The Animal Council states, "The Animal Council is
California nonprofit, public benefit, tax-exempt [Section
501(c)(4)] corporation founded in 1991 to seek positive,
humane solutions to animal public policy issues through
study, analysis and application of animal husbandry,
statistics, economics and law while preserving human
benefit from all species, breeds and registries."
"Many of our constituents in California are long-time dog
owners of traditionally cropped breeds and feel personally
hurt, intimidated, frightened and offended by this bill.
The images of cropped breeds are an integral part of the
historic and contemporary images of dogs in American media
whether in advertising, signage, collectibles, art and
photography. Generations of American families have owned
cropped breeds as a family legacy to be preserved along
with their right to privacy in lawfully owning dogs
including the decisions about ear cropping and access to
skilled practitioners.
"HISTORICAL, SAFE AND REASONABLE SPECIALTY PROCEDURE: The
cropping of dogs' ears of those breeds that were developed
according to standards including this procedure is now a
safe, reasonable procedure when performed by knowledgeable
practitioners today. Owners of these breeds should not be
subjected to criminal investigation and prosecution arising
from possession of dogs with cropped ears regardless of
when, where or by whom the procedure was done.
"UNREASONABLE EXPOSURE TO CRIMINAL PROCESS: Until AB 1857
(Koretz), Chapter 876, Statutes of 2004, was enacted to
prohibit declawing non-domestic cats, the only criminal
provision application applicable to otherwise acceptable
procedures was Penal Code Section 597n prohibiting of
'docking' a horse's tail for the purposes of shortening
(performed to protect tails of draft horses from injury by
driving equipment). Penal Code Section 597n was
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accompanied by provisions for registration of horses docked
legally, particularly those entering California. Dogs with
cropped ears would be entering California under various
circumstances that would subject their owners and handlers
to scrutiny and legal jeopardy, if not harassment, merely
by their presence.
"RISKS OF VAGUE, UNCERTAIN STANDARDS OF EXEMPT TREATMENT:
Unlike other criminal offenses, there is an exemption of
defense for 'treatment of disease or injury that impairs
normal physiological functioning and does not include
prevention of ear infections'. Anyone involved with such a
procedure would be at the mercy of the criminal justice
system to determine whether a specific procedure met this
standard. Given the personal and professional risks and
costs of criminal prosecution and penalties up to $10,000
fine, a veterinarian or any other person involved in any
surgical procedures to dogs' ears would be at risk of
investigation and prosecution.
"DISTINGUISH PRIVATE ORGANIZATIONS' OR FOREIGN NATIONS'
POLICIES FROM CRIMINAL MANDATE: The positions of the
veterinarian trade groups, animal rights advocates and
foreign nations in discouraging or prohibiting ear cropping
should not be a reason to create a crime in California.
Inappropriate means or lack care in performing cropping or
aftercare do, under current law, subject involved parties
to criminal liability for cruelty or civil liability for
damages incurred. These should be sufficient deterrents to
inappropriate use of this procedure."
b) The American Kennel Club states, "The AKC recognizes
that ear cropping, as described in certain breed standards,
is an acceptable practice integral to defining and
preserving breed character and/or enhancing good health.
We encourage proper veterinary care at all times and
believe that when appropriate medical care is provided, ear
cropping is a safe procedure. Additionally, AKC believes
that responsible dog owners, in consultation with their
veterinarians, should have the right to make decisions
about proper care and treatment for their pets. This bill
would make it a misdemeanor to crop a dog's ears, thereby
eliminating responsible dog owners' rights to make informed
health care decisions about their canine companions.
Furthermore, the bill sets a dangerous precedent for
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unlimited and unnecessary government involvement over the
practice of veterinary medicine."
c) Several private citizens and the San Fernando Valley
Doberman Pinscher Club have argued this bill is problematic
in that it establishes a precedent of placing legislative
judgment over that of veterinarians. Also, if
veterinarians are no longer allowed to crop ears in a safe,
medical facility, it may drive the practice underground
increasing the likelihood that dogs will be seriously
injured. Finally, critics argue that legislation
prohibiting dog ear cropping is an unfair infringement on
the right of choice and interferes with the dog and owner
relationship.
11)Prior Legislation :
a) AB 1857 (Koretz), Chapter 876, Statutes of 2004, made it
is a misdemeanor, punishable by imprisonment in a county
jail for a period not to exceed one year, by a fine of
$10,000, or by both, to dewclaw any cat that is a member of
an exotic or native wild cat species.
b) SB 1548 (Figueroa), Chapter 457, Statutes of 2004,
extended the sunset date of the Veterinarian Medical Board
until July 1, 2009; requires liability insurers providing
coverage coverage to veterinarians to report settlement or
arbitration awards of over $10,000; requires veterinarians
to report animal abuse or cruelty; and makes it a
misdemeanor to crop the ear of a dog except for the
treatment of injury or disease. The portion dealing with
dog ear cropping was added as an amendment and then deleted
before SB 1548 was eventually signed by the governor and
codified in related sections of the Business and
Professions Code dealing with veterinary medicine. Unlike
SB 1548, this bill specifically states that it shall not
punish those that show dogs with cropped ears or buy or
sell dogs with cropped ears.
c) AB 395 (Koretz), from the 2003-04 Legislative Session,
would have prohibited veterinarians from performing
surgical claw removal procedures, declawing, or flexor
tendonectomy on a cat that is a member of a large and
exotic cat species. AB 395 was amended to exclude
reference to cats in general and would have applied to only
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specified members of a large and exotic cat species. AB
395 failed passage in the Committee on Business and
Professions.
d) AB 670 (Strom-Martin), Chapter 134, Statutes of 2002,
required child protective services to report suspected
instances of animal cruelty, abuse or neglect to the county
animal control services agency.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of Veterinarians for Animal Rights (Sponsor)
All Valley Pet Hospital
American Society for the Prevention of Cruelty to Animals
Animal Issues Movement
Animal Place
Animal Protection Institute
California Federation for Animal Legislation
Contra Costa Humane Society
Doris Day Animal League
Humane Society of the United States
In Defense of Animals
Paw Project
People for the Ethical Treatment of Animals
Senior Citizens for Humane Legislation and Education
TEAM (Teaching Everyone That Animals Matter)
United Animal Nations
Vegan Action
502 private citizens
Opposition
American Kennel Club
Animal Council
NAIA Trust for the Protection of Animals, Animal Owners and
Animal Enterprises
22 private citizens
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744