Metropolitan News-Enterprise


Monday, September 18, 2017


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Ninth Circuit Panel Reinstates State Ban on Foie Gras

Judge Nguyen Says the State Statute Is Not Preempted by Federal Legislation


By a MetNews Staff Writer


The Ninth U.S. Court of Appeals on Friday reversed a district court’s invalidation of the California ban on foie gras and other products made from force-fed fowl, holding that the state statute is not preempted by federal law.

Judge Jacqueline H. Nguyen wrote the opinion. It reverses a summary judgment in favor of opponents of the ban granted Jan. 7, 2015 by District Court Judge Stephen V. Wilson of the Central District of California, and vacates the permanent injunction he issued.

At issue was the enforceability of Health and Safety Code §25982 which provides:

“A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.”

The statute was enacted in 2004 but did not go into effect until July 1, 2012. The plaintiffs—an association of Canadian farmers, a producer of foie gras, and a restaurant that formerly served the delicacy—sued the following day.

Although the statute does not preclude the selling of foie gras made from livers of duck and geese that are not force-fed, it does effectively ban the product because force-feeding is the method used to cause the livers to be fatty.

Wilson’s Ruling

Wilson held that the federal Poultry Products Inspection Act (“PPIA”) preempts the California statute. It provides:

“Marking, labeling, packaging, or ingredient requirements…in addition to, or different than, those made under this chapter may not be imposed by any State or Territory or the District of Columbia….”

 The district judge wrote:

“…Plaintiffs’ foie gras products may comply with all federal requirements but still violate §25982 because their products contain a particular constituent—force-fed bird’s liver. Accordingly, §25982 imposes an ingredient requirement in addition to or different than the federal laws and regulations.”

Explains Reversal

The Ninth Circuit disagreed. Nguyen said:

“Plaintiffs argue that section 25982 imposes an “ingredient requirement” because it requires that foie gras be made only from the livers of birds who were not force-fed. Plaintiffs do not claim that foie gras produced from non- force-fed birds is in any way inferior to foie gras made from the livers of force-fed birds, only that federal law is silent on the former. The State counters that section 25982 does not address ingredients at all, but rather regulates California’s market by proscribing the sale of products produced by force-feeding birds to enlarge their livers. And to the extent that section 25982 can be construed as a ban on foie gras itself, the State argues that the PPIA does not prevent a state from banning poultry products. Based on the ordinary meaning of ‘ingredient’ and the plain language and purpose of the PPIA, we hold that section 25982 is not expressly preempted by the PPIA.”

The judge declared that the PPIA’s references to “ingredients” are “limited to the physical components of poultry products and do not reach the subjects of animal husbandry or feeding practices.”

The case is Association des Eleveurs de Canards v. Becerra, No. 15-55192.


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