Another food ban has been struck down by a court. District Court Judge Stephen Wilson struck down the two-year state California state prohibition on foie gras as a violation of interstate commerce. The court issued its final decision on January 7th in Ass’n des Eleveurs de Canards et D’oies du Quebec v. Harris and found that the state law is trumped by the federal Poultry Products Inspections Act. Wilson acknowledged that there are few people in the middle of this debate: “This action for declaratory and injunctive relief touches upon a topic impacting gourmands’ stomachs and animal rights activists’ hearts: foie gras.”

The lower court’s earlier denial of a preliminary injunction sought by the plaintiffs was upheld by the the United States Court of Appeals for the Ninth Circuit in Ass’n des Eleveurs de Canards et D’oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2014). The result is relatively rare. Usually when you lose a preliminary injunction fight before both the district and appellate courts, the outcome is clear since the courts have found that you are not likely to prevail on the merits. (The state also lost in arguing that the lawsuit was barred under the Eleventh Amendment).

The appellate court described the process at issue:

Hudson Valley and the Canadian Farmers raise Moulard ducks. Moulard ducks are a hybrid of Muscovy male ducks and Pekin female ducks. They are bred for their capacity of ingestion and fat storage in their livers. In addition to foie gras, Hudson Valley and the Canadian Farmers produce and sell breasts, legs, fat, bones, offal, and feathers from their Moulard ducks.

Generally, Moulard ducks are raised for foie gras through the following process. The Canadian Farmers and Hudson Valley take one-day-old ducks from the hatchery to breeding farms. There, the ducks are raised until they are fully grown, a process that generally takes eleven to thirteen weeks. For the first four weeks of their lives, the ducks eat pellets from feeding pans that are available to them twenty-four hours a day. In the next stage, which lasts one to two months, the ducks eat different pellets from feeding pans that are available to them twenty-four hours a day. For the next two weeks, the ducks continue to eat pellets from feeding pans that are available to them at only certain times during the day. In the final stage, called gavage, which lasts between ten to thirteen days, the ducks are hand-fed by feeders who use “a tube to deliver the feed to the crop sac at the base of the duck’s esophagus.”

Many people view this process as cruel and do not eat foie gras. The state took it one step further in barring anyone from selling the product. Section 25982 of the Health Code is entitled “Force Fed Birds.” Cal. Health & Safety Code §§ 25980 et seq. It states: “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.” Section 25981 further provides that “A person may not force feed a bird for the purpose of enlarging the bird’s liver beyond normal size, or hire another person to do so.”

Wilson said that the law was a clever way of regulating commerce in contravention to the federal regulation: “California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

The court’s point is a compelling one but the state has a good-faith argument. The Poultry Products Inspection Act, regulates the distribution and sale of poultry and forbids states from imposing regulations on “labeling, packaging, or ingredient requirements” which would conflict with the federal regulations. Wilson struck down the law because he deemed a force-fed bird’s liver is an “ingredient.” The state argued that it was banning the process by which the product was made, not the ingredient. That would seem to fit within a state’s right to address animal cruelty and public health. The opinion below contains an interesting analysis of the impact of the Supreme Court ruling in National Meat Association v. Harris on the interpretive question. The court admits that it is a close question:

National Meat’s application to this case is far from clear. On its face, the California ban on sales of meat from nonambulatory pigs appears analogous to California’s ban on sales of foie gras from force-fed birds. Additionally, the need to prevent states from avoiding preemption via strategic legislative drafting applies with equal force to § 25982. Thus, if the non ambulatory pig sales ban is preempted by the FMIA then § 25982 should also be preempted by the analogous PPIA.

However, the Court’s functional approach to statutory construction suggests that § 25982 should be understood as a ban on force-feeding birds rather than as a sales ban. Under this reading, Defendant might be correct that § 25982 does not impose an ingredient requirement because it regulates a process. If so, then § 25982 would not be preempted.

However, this result would turn the Supreme Court’s reasoning on its head: Instead of hindering crafty draftsmanship, this analysis would use a functional approach to enable states to creatively avoid preemption. Under this analysis, any state would be able to avoid preemption of ingredient and labeling requirements by purporting to regulate the process of producing an ingredient rather than directly regulating the ingredient’s use.

A very interesting ruling, but the upshot is that people will be able to debate it over foie gras again in state restaurants.

Here is the opinion: Fois Gras ruling