9th Circuit orders state foie gras ban reinstated

A 9th U.S. Circuit Court of Appeals panel ruled Friday in favor of a state law banning the sale of foie gras, reversing a district judge’s order that overturned the bar on products made from force-fed birds.

The panel opinion, authored by Judge Jacqueline H. Nguyen, rejected the argument that California’s foie gras sales ban was expressly or impliedly preempted by the federal Poultry Products Inspection Act. Association Des Éleveurs De Canards Et D’oies Du Québec, et al. v. Becerra, 2017 DJDAR 9148.

Then-Gov. Arnold Schwarzenegger signed the ban in 2004, which allowed over seven years for the law to take effect so that food producers had time to transition. When the law took effect in 2012, it immediately faced legal challenges by food industry groups.

U.S. District Judge Stephen V. Wilson enjoined California’s enforcement of the law in 2015 after plaintiffs sought, and won, a partial summary judgment.

Animal rights organizations such as People for the Ethical Treatment of Animals and the Animal Legal Defense Fund lauded Friday’s ruling.

ALDF Executive Director Stephen Wells said Friday that the organization “hopes that today’s decision is the death knell for the foie gras industry’s long crusade against California law.”

Groups opposed to the ban vowed to continue their fight.

The Coalition For Humane and Ethical Farming Standards, a group opposed to the law, called the opinion “flawed” and unconstitutional, and referred to California’s foie gras ban as “misguided” in a press release.

Chef Sean Chaney of Hots Kitchen, one of the plaintiffs in the case, said, “If California gets away with this, what’s next? Bacon?”

Kelsey Eberly, a staff attorney with the ALDF, which filed an amicus curiae brief in the case, said the ruling won’t have the force of law until any petitions for rehearing before the 9th Circuit are resolved.

“The short story is, foie gras will continue to be sold, and the state will continue to be precluded from enforcing the law,” Eberly said.

Eberly said Friday’s ruling may not take effect for weeks, perhaps months, depending on whether attorneys for the industry file a petition for rehearing.

Author J. Kenji López-Alt, author of a bestselling book “The Food Lab,” said the law is well-intentioned but misguided.

“Or if you want to take a more cynical look at it,” said López-Alt, “it’s a very carefully calculated attack on a very specific part of an industry. In my opinion, there are far worse crimes being committed every day against animals” than at any of the foie gras farms in the country.

According to López-Alt, there are currently fewer than five such farms operating in the nation.

Attorneys representing both parties could not be reached for comment Friday.