Federal Court Overturns Calif.'s Foie Gras Ban
Our long statewide nightmare is finally over. Foie gras for everyone!
Back in 2012, legislation went into effect prohibiting "force feed[ing] a bird for the purpose of enlarging the bird's liver beyond normal size." Also prohibited were any products made that way. Given that's exactly how foie gras is made, and to date, no one (except some random farmer in Spain whose foie gras is astonishingly expensive) can figure out how to make it any other way, foie gras was effectively banned in California.
No More Foie Gras Speakeasies
The foie gras ban even survived at the Ninth Circuit, and looked to doom about 40 million Californians to a life without artificially enlarged goose livers after the U.S. Supreme Court declined to hear the case.
Oh, that's not to say some didn't try to find a way around it. San Francisco's Presidio Social Club claimed that it wasn't subject to the foie gras ban because the Presidio is federal, not state, property. A Los Angeles chef provided foie gras following a "suggested donation." Other chefs just flagrantly violated the law, serving foie gras in spite of a possible $1,000 fine.
Finally, Someone Standing Up for Force Feeding
But, like we said, that dystopian future is behind us. A federal district court found the law pre-empted by the federal Poultry Products Inspection Act (PPIA). A group of Canadian farmers sued the state, claiming the loss of "millions of dollars worth of foie gras product sales in California."
The PPIA regulates poultry products, including foie gras, and expressly prevents states from enacting requirements in addition to, or different from, the requirements of PPIA. Basically, PPIA reserves for the federal government all the regulations surrounding poultry.
PPIA applies only to poultry "prepared at any official establishment," which is a poultry slaughtering facility inspected by the Department of Agriculture. That includes facilities where the Canadian farmers make their foie gras. Consequently, "Plaintiffs' foie gras products may comply with all federal requirements but still violate [Cal. Health and Safety Code] Section 25982 because their products contain a particular constituent -- force-fed bird's liver." And that's not allowed, resulting in the court issuing a permanent injunction against enforcing the law.
In case you're wondering, California's other major poultry-related law, its ban on eggs produced from chickens raised in small cages, wouldn't be pre-empted by PPIA. The federal law applies only to slaughtered animals.
- Judge Tosses Suit by 6 States Over California Law on Eggs (San Francisco Chronicle)
- The Last Days of Foie Gras (The Atlantic)
- Egg-Laying Hens, Federalism, and the Dormant Commerce Clause (FindLaw's California Case Law Blog)
- Shark Fin Ban Argued Before 9th Circuit; Feds Step In (FindLaw's California Case Law Blog)