California Can Ban Sales of Foie Gras, But Only if It Is Produced in State

foie grass Photo Source: Adobe Stock Image

Often described as a “luxury food item beloved in French cuisine,” foie gras is made from the fattened liver of a duck or goose. Unfortunately, in order to obtain the 50 to 65 percent of fat that produces the “rich and buttery flavor,” the maltreated fowl must be force-fed. A tube is inserted into its throat and over two pounds of a corn-based mixture is delivered into its stomach each day via a feeding tube.

California does not approve of this cruel fowl-gorging practice. In 2004, after campaigns from animal-rights activists, it banned both what legislators called the “inhumane process,” as well as sales of the abused birds. Nine years of litigation and three appeals followed, but now the Ninth Circuit has ruled that foie gras cannot be produced in California, but it may still be sold there if it is produced out of state.

In a 2-1 decision on May 6, with Justice Lawrence VanDyke concurring in part and dissenting in part, Justice Ryan D. Nelson affirmed the decision of the U.S. District Court for the Central District of California that dismissed numerous challenges to California’s ban. Writing for the court, Justice Nelson opined, “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.”

In other words, a 1.94-pound package of foie gras will still be available on Amazon for $109.95.

Nelson’s opinion began with an explanation of Cal. Health & Safety Code § 25982, which “prohibits the in-state sale of products that are “the result of force-feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” Legislators gave producers a “seven-year grace period” for the transition. Plaintiffs began their quest to overturn the law as soon as the grace period expired. Nelson also discussed the Department of Agriculture’s Poultry Products Inspection Act (PPIA) which mandates the inspection of domesticated birds that are slaughtered and processed into products for human consumption.

Plaintiff-appellees, the Association des Eleveurs de Canards et d’oies du Quebec (Association of Breeders of Ducks and Birds of Quebec) (sellers) and restaurateur Sean Chaney, argued that the California ban is preempted by the PPIA Act and that it violates the Commerce Clause of the U.S. constitution. Plaintiffs also asked the court to clarify how sales could still be legal if the ban is held to be constitutional.

Justice Nelson dismissed each of the plaintiffs’ arguments in his 22-page opinion that detailed the Court’s disagreement with each claim. First, he dismissed the sellers’ contention that the ban cannot be enforced because it would force them to comply with contradictory laws. While it is true that U.S. law (the PPIA) can preempt state law, Nelson wrote that the ban prevails because it is local. It does not forbid the production and sale of the controversial product outside the state of California. Sellers can still force-feed their birds, just not in the Golden State.

In addition, the plaintiffs’ argument that centers on California’s ban violating the “ingredient requirement” failed because the State’s law is silent about what ingredients are needed to produce foie gras. Sales bans, Ryan wrote, are not ingredient requirements.

Next came a section regarding the “dormant Commerce Clause,” which plaintiffs argue is violated by the California ban that “impermissibly regulates” and “unduly burdens” interstate commerce. The clause “Implicitly preempts” state laws that “disrupt economic activities in the nation as a whole.”

But Ryan dismissed this argument by ruling that state laws that burden “only out-of-state businesses are not necessarily discriminatory.” Since California bans only the sale of foie gras that is produced in-state, it is constitutional. Plaintiffs’ hope for a less burdensome alternative was also dismissed because it was not required for their decision and would make the court “wade into murky policy waters.”

The opinion next reviewed what sales are permitted under the California ban. When plaintiffs contended that the intent of the California legislature was to “discourage the consumption of products by force-feeding birds and prevent complicity in a practice…deemed cruel to animals,” the court declined to find any “indication that the legislature intended to further its goals by banning consumption and possession of foie gras.”

The final segment of the majority opinion discussed the cross-appeal by California Attorney General Rob Bonta, who disagreed with the order that would allow the online, phone and fax sales of foie gras. The Ninth Circuit said all such sales were properly permitted under the California Uniform Commercial Code.

Justice VanDyke next wrote a 40-page dissent. He agreed that out-of-state sales should be permitted but based his dissent on his disagreement with the “impossibility preemption claim” by telling sellers they must “stop selling.” He said the Court used a “flawed analysis” that did not take into account the fact that “bird livers are chemically and physically different than non-force-fed bird livers in numerous respects.”

He wrote that California’s sales ban is also a “process-ban” on the way foie gras is created, thus the PPIA and the California Health and Safety Code require foie gras to be produced by two “irreconcilable” methods that cannot be reconciled by “stop-selling” orders. He said that state law must therefore yield to federal law.

In addition, he notes that foie gras can be produced without force-feeding, which the ban does not take into account. On its way to the Ninth Circuit, several farmers who produce it claimed the birds are all treated humanely and do not suffer as they are being fattened.

The Los Angeles Times reports that foie gras is back on the menu. One Los Angeles restaurant, for example, offers it as a $27 appetizer. Bon appetit, if you can stomach it!

Maureen Rubin, J.D.
Maureen Rubin, J.D.
Maureen Rubin is an Emeritus Professor of Journalism at California State University where she taught media law and writing and served as an administrator. Previously, she worked in the Carter White House and U.S. Congress, She is a graduate of Catholic University Law School and holds a Master's from USC.