But, Court Says, Shipments of Product May Continue to Be Made by Out-of-State Sellers
By a MetNews Staff Writer
California’s ban on sales of foie gras is constitutionally valid and does not clash with an overriding federal statute, but the product may lawfully be obtained through shipments from out-of-state sellers, the Ninth U.S. Circuit Court of Appeals held Friday.
Judge Ryan D. Nelson wrote the majority opinion, in which Judge Andrew J. Kleinfeld joined. Judge Lawrence VanDyke authored a concurring and dissenting opinion.
At issue was the enforceability of Health & Safety Code §25982, challenged by foie gras producers, including those in Canada and New York. The statute provides, in full:
“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.”
“After nine years of litigation and in their third set of appeals before this Court, the parties ask us to decide whether California’s sales ban is preempted by the Poultry Products Inspection Act (‘PPIA’) or violates the dormant Commerce Clause. If the ban is not preempted or unconstitutional, they ask us to clarify whether it permits certain internet, phone, and fax sales by out-of-state sellers. We hold that the sales ban is neither preempted nor unconstitutional and that the specified transactions are out-of-state sales permitted by California law.”
The statute was enacted in 2004 and went into effect that year.
In this 2016, file photo, foie gras producer Robin Arribit force-feeds a duck with corn in southwestern France. The Ninth U.S. Circuit Court of Appeals on Friday upheld rulings that a California ban on sales of the product here is valid.
Friday’s opinion, in addition to upholding rulings on constitutionality and preemption, affirms a July 14, 2020 declaratory judgment by District Court Judge Stephen V. Wilson of the Central District of California permitting California consumers to buy foie gras from outside of California. He wrote:
“The Court holds that a sale of foie gras does not violate § 25982 when:
“• The Seller is located outside of California.
“• The foie gras being purchased is not present within California at the time of sale.
“• The transaction is processed outside of California (via phone, fax, email, website, or otherwise).
“• Payment is received and processed outside of California, and
“• The foie gas is given to the purchaser or a third-party delivery service outside of California, and ‘[t]he shipping company [or purchaser] thereafter transports the product to the recipient designated by the purchaser,’ even if the recipient is in California.”
In conformity with that decision, foie gras is available from such sources as Amazon.com—which provides the product from sellers outside California, who ship it here—but not from Amazon Fresh which delivers products from local vendors.
California Attorney General Rob Bonta contended that §25982 is unlimited in its scope and bars sales to California consumers from out-of-state merchants. Nelson disagreed, saying:
“[B]ecause the ban prohibits certain products from being ‘sold in California,’ the question is not where a seller is located but where a sale occurs.”
Under California law, he said, a sale occurs where title passes and, under the order affirmed, the transaction must be processed outside the state.
Bonta also maintained that permitting sales to Californians from out-of-state defeats the Legislature’s objective if deterring cruelty to animals.
“But this argument is contradicted by the statutory text; there is no indication that the legislature intended to further its goal by banning consumption and possession of foie gras.”
Nelson also said the California statute does not have an impermissible extraterritorial effect because “the sales ban does not affect transactions outside California” and that it does not unduly burden interstate commerce, explaining:
“The sales ban is not discriminatory, so the statute does not impose an undue burden on that basis….And we have rejected the notion that sales bans are inherently unduly burdensome.”
The preemption argument was based on a definition of foie gras by the United States Department of Agriculture, devised pursuant to authority of the PPIA, as “specially fed and fattened.” A producer of foie gras cannot comply both with that requirement and California law.
“Unfortunately for the sellers, the definition of foie gras is beside the point: it is not impossible to produce foie gras in accordance with a USDA Policy Book just because force-fed products cannot be sold in California. Even assuming the USDA guidance requires force feeding, the sellers can still force feed birds to make their products. They just cannot sell those products in California. The sales ban is neither a command to market non-force-fed products as foie gras nor to call force-fed products something different.”
Under a District Court decision, affirmed Friday, California consumers may purchase foie gras that is shipped from outside California. Above is an offer on Amazon.com.
Van Dyke’s View
Van Dyke agreed with the majority that sales of foie gras to Californians from out-of-state vendors is not barred by §25982, but disagreed with its resolution of the preemption issue. He wrote:
“[T]he federal government has defined foie eras to mean specially fed and fattened (i.e.. force-fed) goose and duck liver, while California has banned the sale of any foie gras produced by force-feeding the bird. This means there is no universe in which Plaintiffs can comply with both the PPIA and § 25982, because there is no universe in which Plaintiffs could follow California’s requirement for acceptable foie gras while also meeting the federal definition of what foie gras is.”
He went on to say:
“Ultimately, the PPIA and § 25982 require foie gras to be produced through mutually exclusive and irreconcilable methods. When this conflict arises, the constitutional controversy is not solved simply by saying the regulated entity should stop selling. Rather, the Constitution demands that the state law yield to federal law. and that is what is required here.”
VanDyke also asserted that Wilson should have permitted the plaintiffs to amend the complaint to allege an express preemption.
The case is Association des Eleveurs de Canards et d Oies du Quebec v. Bonta, 20-55882.
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