Restaurants across California may no longer need to find creative ways to put foie gras on their menus, as a California federal court has ruled that federal law preempts California’s ban on the sale of the delicacy and enjoined the California Attorney General from enforcing the law.
In 2004, California enacted SB 1520, which banned the use of gavage (force-feeding) to produce foie gras in the state, and also banned the sale within the state of foie gras produced through gavage. However, the Legislature delayed enforcement of the ban until 2012.
The initial SB 1520 challenge
Shortly after the 2012 effective date, foie gras producers and California restaurants filed a lawsuit to enjoin the enforcement of the foie gras sales ban on due process and interstate commerce grounds. The trial court denied the producers’ motion for a preliminary injunction, which the Ninth Circuit Court of Appeals affirmed.
New challenge on preemption grounds
After the Ninth Circuit ruling, the foie gras producers filed an amended complaint alleging that the federal Poultry Products Inspection Act preempts the ban. The PPIA regulates the sale of all poultry and poultry products, including foie gras and any other products made with foie gras. The PPIA expressly preempts any state law that imposes an ingredient requirement that is different or in addition to the requirements under the PPIA.
The producers then moved for partial summary judgment on their preemption claim, arguing that because their foie gras products comply with the PPIA and are USDA-approved, California could not ban their sale in the state.
Central District Judge Stephen Wilson agreed with the producers, holding that California’s requirement that foie gras not contain gavage bird liver is inconsistent with the PPIA, which does not make such a distinction. The producers’ foie gras could comply with all federal requirements, but still violate SB 1520.
Judge Wilson therefore enjoined the California Attorney General from enforcing the law against the producers’ USDA-approved foie gras products. Judge Wilson rejected the Attorney General’s argument that SB 1520 prohibits the inhumane treatment of birds by regulating the bird liver production process, and not the ingredients of the ultimate foie gras product. Judge Wilson stated that the AG’s attempt at distinguishing the process of producing foie gras from the foie gras itself amounted to an attempt to use creative legislative drafting to side-step federal law that preempts state regulation of ingredients. Judge Wilson relied heavily on the U.S. Supreme Court decision in National Meat Association v. Harris, which holds that the Federal Meat Inspection Act (regulating meat for consumption) preempted a California law regulating the treatment and sale of nonambulatory swine.
Although the decision may have sent foodies scurrying to OpenTable for weekend reservations, the decision’s long term impact is unclear. It seems destined for the Ninth Circuit, and as written, the decision only enjoins the Attorney General from enforcing the sales ban. However, SB 1520 expressly authorizes district and city attorneys to enforce the law (and in fact, while the Attorney General has not previously sought to enforce the law, several DAs have). The preemption issue is also closely tied to compliance with the PPIA, which requires preparation of foie gras products with USDA approval. It is possible that not all foie gras expected to be available in the state will be covered, which could permit enforcement that does not run afoul of Judge Wilson’s reasoning.