Metropolitan News-Enterprise


Tuesday, November 22, 2005


Page 1


Court of Appeal Sides With Adidas, Strikes Down Ban on Importation of Kangaroo Products


By a MetNews Staff Writer


A 35-year-old state law banning importation of kangaroo products into California is preempted to the extent it conflicts with federal law allowing such products to be imported into the United States, the First District Court of Appeal ruled yesterday.

The court affirmed a San Francisco Superior Court judge’s order granting summary judgment to companies that sell athletic shoes containing kangaroo leather, including Sports Chalet and a subsidiary of the German manufacturer Adidas.

A Yolo County-based vegetarian group and a Los Angeles County resident sued the companies, alleging that the sales violated Penal Code Sec. 653 and thus constituted an unlawful business practice.

The defendants argued that the state law only applies to endangered species, while the three species of kangaroos whose hides are used to make the defendants’ shoes have been removed from the endangered species list; that the ban conflicts with federal law and policy allowing kangaroos products into the United States in exchange for Australian government efforts to control the kangaroo population, which the government estimates at 57 million; and that state prohibition of imports violates the Commerce Clause.

The trial judge rejected the endangered species argument, granted summary judgment on the preemption claim, and did not rule on the Commerce Clause issue.

Presiding Justice James Marchiano, writing for Div. One of the Court of Appeal, said the trial judge was correct.

He cited a provision of the Endangered Species Act reading:

“Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter.”

This provision, the justice noted, has been interpreted as allowing a state to ban importation of products whose importation has not been approved under federal law. But where federal law has permitted importation of a product under certain conditions, the state law has been held invalid to the extent it prohibits what the federal law permits.

The plaintiffs’ contention that the delisting of the three species places the issue outside the scope of federal law, and thus avoids the preemption question, is “not unreasonable,” Marchiano said, but gives “insufficient attention” to the rule that state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objections of Congress.”

For more than 20 years, the presiding justice explained, the United States and Australia have cooperated with regard to the issue of kangaroo conservation, with this country employing a “proverbial carrot and stick policy” allowing Australia to avoid a ban on imports by implementing population management programs.

Since the programs for the three species at issue in the case have been approved by the Fish & Wildlife Service, Marchiano explained, importation of products made from those species is permitted by federal law. To apply the state ban to such products, he concluded, conflicts with the federal policy and is thus prohibited.

The case is Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc., A106960. 


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