On May 6, 2022, a three-judge panel of the Ninth Circuit Court of Appeals considered a challenge to California’s foie gras ban. The law was heavily contested for nine years, including three rounds of appeals.
The panel ruled 2 to 1 that the foie gras ban was not preempted by federal law and did not violate the dormant Commerce Clause.
California Health and Safety Code §25982 states that “[a] the product cannot be sold in California if it results from the force-feeding of a bird for the purpose of enlarging the bird’s liver beyond its normal size. The law was originally passed by the California legislature in 2004 with a 7.5-year enforcement period.
Two of the three judges on the panel found that California’s foie gras ban was neither a command to market non-force-fed products as foie gras nor to call force-fed products something that would violate the provisions federal naming authorities. Therefore, it was not preempted by federal law.
The majority also held that the ban does not violate the commerce clause, even if it effectively only affects companies outside the state. The panel found that the plaintiffs had shown no recognizable burden on interstate commerce and that California had an interest in public health and the prevention of animal cruelty.
The panel upheld the district court’s restriction of the ban. This court ruled that online, telephone and fax sales to California buyers are permitted by law when title is passed out of state. This means that California consumers can purchase foie gras for personal use through third-party delivery companies. However, retailers and restaurants cannot sell or give away foie gras.
In his dissent, Justice Vandyke argued that Section 25982 was pre-empted by the federal Poultry Products Inspection Act (“PPIA”) and that the lower court erroneously dismissed the plaintiffs’ motion to add an express preemption request. Judge Vandyke pointed out that “California has prohibited the sale of any bird liver if that bird has been force-fed, and the only way to make foie gras that meets federal requirements is by force-feeding. This places the plaintiffs in an impossible situation, in which the only solution is to stop selling foie gras in California. »