Foie gras ban injunction struck down, now what?

An opinion by the 9th U.S. Circuit Court of Appeals just gave us the next chapter in a tumultuous saga surrounding California’s foie gras ban, codified in California Health and Safety Code Section 25982. Association des Éleveurs de Canards et d’Oies du Québec v. Becerra, 2017 DJDAR 9148 (Sept. 15, 2017). The law was passed in 2004 and has been the subject of litigation ever since it went to effect. The 9th Circuit reversed a lower court decision enjoining enforcement of the law and reinstated the ban on foie gras, to the chagrin of chefs and the delight of animal rights groups.

Section 25982 provides that: “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 law was originally passed in 2004 with a delayed implementation date of 7.5 years to give food producers a prolonged grace period during which there would be no criminal or civil penalties for continuing to use force feeding practices. This was intended to permit an orderly wind down of the practice in California, and to see if producers were able to find alternatives to force feeding for foie gras production. The law finally went into effect on July 1, 2012, banning the production of foie gras using forced feeding and banning restaurants from selling foie gras.

After the law took effect, three groups sued the state of California, the governor and the attorney general. These groups included two non-California producers and sellers of foie gras and Hot’s Restaurant Group, a restaurant group including multiple restaurants that sold foie gras prior to the ban. The plaintiffs sought a preliminary injunction to stop the law from being enforced in California, and argued that Section 25982 violated the due process and the commerce clauses of the U.S. Constitution.

The court dismissed the state of California and Gov. Jerry Brown from the lawsuit due to 11th Amendment immunity, but found that the case could continue against the attorney general to prevent the enforcement of the law. The court ultimately denied plaintiffs’ requested preliminary injunction, finding their constitutional arguments unconvincing. A three-judge panel affirmed the district court’s decision to deny plaintiffs’ preliminary injunction. (Judge Harry Pregerson, who wrote that panel decision, was also part of Friday’s panel.)

The plaintiffs then made an additional argument based on federal preemption. They claimed that the federal Poultry Products Inspection Act preempted state regulation because the law was sweeping and regulated all aspects of poultry production and consumption. District Judge Stephen Wilson agreed and granted their motion for partial summary judgment, ruling that the PPIA preempted Section 25982. The order enjoined the California attorney general’s office from enforcing the ban on sale. However, the ban on the force feeding practices for the production of foie gras remained in effect. Thus, foie gras could be sold and purchased, but not produced in California.

Restaurants in California immediately began serving foie gras again while the attorney general’s office appealed the decision to the 9th Circuit. Judges Pregerson, Jacqueline H. Nguyen and John B. Owens strongly rejected Judge Wilson’s analysis that Section 25982 was preempted by federal law.

The panel said the PPIA did not expressly or impliedly preempt Section 25982. With regard to express preemption, the panel found that the act’s prohibition on states imposing “ingredient requirements” that were “in addition to, or different than” the federal law and its regulations was limited to the physical components that comprise a poultry product, not to the underlying feeding practices. As to field preemption, which would preclude California from regulating any conduct in the poultry field, the panel said the act contemplated state involvement and regulation and that Section 25982 did not pose any objection to the act’s stated objective of ensuring that poultry products are “wholesome, not adulterated, and properly marked, labeled, and packaged.”

Thus, California had the right to ban the force feeding practice on the basis of animal cruelty. Judge Nguyen compared the ban to the ban on horsemeat and noted: “California, like a growing number of countries around the world, has concluded that force-fed foie gras is similarly repugnant. The PPIA and its preemption clause do not stand in the way of society’s evolving standards regarding animal treatment.”

Even with the 9th Circuit decision to vacate the district court’s permanent injunction, the ultimate fate of foie gras in California remains in limbo. The case was remanded back to the district court for further proceedings. The plaintiffs plan to exhaust all their avenues of appeal on the decision, meaning that the future of the ban could rest with the Supreme Court. Another California food ban — the state ban on shark fin products — was ultimately affirmed by the 9th Circuit and the Supreme Court denied certiorari, leaving the ban in place.

Restaurants, suppliers and would-be foie gras consumers face an uncertain future. The law provides for a civil penalty of $1,000 for each violation of Section 25982, and up to $1,000 per day for each day the violation continues. Even if the ban is ultimately affirmed by the 9th Circuit, it is unclear how aggressively the attorney general’s office will enforce it.