California’s ban on the sale of foie gras is valid


Metropolitan News-Corporate

monday 9 may 2022

Page 1

Ninth Circuit: California’s ban on the sale of foie gras is valid

But, court says, product shipments can continue to be made by out-of-state sellers

By a MetNews writer

California’s ban on the sale of foie gras is constitutionally valid and does not conflict with any overriding federal law, but the product can legally be obtained through shipments from out-of-state sellers, a the U.S. Ninth Circuit Court of Appeals said Friday.

Judge Ryan D. Nelson wrote the majority opinion, joined by Judge Andrew J. Kleinfeld. Justice Lawrence VanDyke wrote a concurring and dissenting opinion.

At issue was the applicability of Health and Safety Code §25982, disputed by foie gras producers, including those in Canada and New York. The statute provides, in full:

“A product cannot be sold in California if it is the result of force-feeding a bird for the purpose of enlarging the bird’s liver beyond its normal size.”

Nelson wrote:

“After nine years of litigation and in their third round of appeals to this Court, the parties ask us to decide whether California’s sales ban is preempted by the Poultry Products Inspection Act (“PPIA”) or violates the clause of dormant trade. If the ban is unintended or unconstitutional, they ask us to clarify whether it allows certain internet, phone, and fax sales by out-of-state sellers. We believe that the sales ban is neither anticipated nor unconstitutional and that the transactions specified are out-of-state sales permitted by California law.

The law was enacted in 2004 and came into force that year.

In this file photo from 2016, foie gras producer Robin Arribit force-feeds a duck corn in southwestern France. The US Ninth Circuit Court of Appeals on Friday upheld rulings that a California ban on selling the product here is valid.

Wilson’s Decision

Friday’s notice, in addition to upholding the rulings on constitutionality and preemption, upholds a July 14, 2020 declaratory judgment by District Court Judge Stephen V. Wilson of the Central District of California allowing California consumers to purchase foie gras from outside California. He wrote:

“The Court considers that a sale of foie gras does not violate § 25982 when:

“• Seller is located outside of California.

“• The foie gras purchased is not present in California at the time of the sale.

“• The transaction is processed outside of California (by phone, fax, email, website, or otherwise).

“• Payment is received and processed outside of California, and

“• The liver gas is delivered to the purchaser or a third-party delivery service outside of California, and ‘[t]his shipping company [or purchaser] then transports the product to the buyer’s designated consignee, even if the consignee is in California.

In accordance with this decision, foie gras is available from sources such as – which supplies the product to sellers outside of California, who ship it here – but not from Amazon Fresh which delivers products from sellers. local.

Bonta’s dispute

California Attorney General Rob Bonta argued that §25982 is unlimited in scope and prohibits sales to California consumers by out-of-state merchants. Nelson disagreed, saying:

“[B]Since the ban prohibits certain products from being “sold in California,” the question is not where a seller is, but where a sale takes place. »

Under California law, he said, a sale takes place where title passes, and under the upheld order, the transaction must be transacted out of state.

Bonta also argued that allowing sales to out-of-state Californians defeats the purpose of the legislature if it deters animal cruelty.

“But this argument is contradicted by the statutory text; there is no indication that the legislator intended to pursue its objective by prohibiting the consumption and possession of foie gras.

Constitutional considerations

Nelson also said the California law doesn’t have impermissible extraterritorial effect because “the sales ban doesn’t affect transactions outside of California” and it doesn’t unduly burden interstate commerce, explaining :

“The sales ban is not discriminatory, so the law does not impose an undue burden on that basis…And we have rejected the idea that sales bans are inherently unduly burdensome.”

The preemption argument was based on a definition of foie gras by the United States Department of Agriculture, devised under the authority of the PPIA, as “specially fed and fattened”. A producer of foie gras cannot comply with both this requirement and California law.

Nelson said:

“Unfortunately for sellers, the definition of foie gras is irrelevant: it is not impossible to produce foie gras according to a USDA Policy Book simply because the stuffed products cannot be sold in California. . Even assuming USDA guidelines require force-feeding, sellers can still force birds into their products. They just can’t sell these products in California. The ban on sales is neither a command to market non-fattened products like foie gras nor to call stuffed products otherwise.


Under a district court ruling, upheld on Friday, California consumers can purchase foie gras shipped from outside of California. Above is an offer on

View from Van Dyke

Van Dyke agreed with the majority that sales of foie gras to Californians by out-of-state sellers are not prohibited by §25982, but disagreed with its resolution of the preemption issue. . He wrote:

“[T]he federal government has defined liver eras to mean specially fed and fattened (i.e. force-fed) goose and duck livers, while California has banned the sale of any foie gras produced by force-feeding the ‘bird. This means that there is no universe in which applicants can comply with both the PPIA and § 25982, because there is no universe in which applicants could follow the requirement definition of acceptable foie gras while meeting the federal definition of foie gras.

He went on to say:

“Ultimately, the PPIA and § 25982 require that foie gras be produced by mutually exclusive and irreconcilable methods. When this conflict arises, the constitutional controversy is not resolved simply by saying that the regulated entity should stop selling. Rather, the Constitution requires that state law give way to federal law. and that is what is needed here.

VanDyke also asserted that Wilson should have allowed plaintiffs to amend the complaint to allege express preemption.

The case is Association of Duck and Goose Breeders of Quebec c. bonta20-55882.

Copyright 2022, Metropolitan News Company


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