C’est la vie: California’s Ban on Foie Gras Revived by 9th Circuit

PASADENA, Calif. (CN) – A Ninth Circuit panel dealt a punishing blow to foie gras producers and enthusiasts on Friday by reviving a California ban in the back-and-forth battle over the ethics of the polarizing delicacy.

In a decisive 26-page decision, the panel reversed a trial court’s ruling overturning the ban and vacated a permanent injunction barring California from enforcing it. The circuit judges rejected the plaintiffs’ argument that the ban is preempted by the federal Poultry Products Inspection Act (PPIA), which prohibits states from imposing “ingredient requirements.”

The plaintiffs – a group of foie gras producers and restaurants – had claimed California’s ban imposed an ingredient requirement by requiring that foie gras be made from birds that aren’t force-fed.

“California’s ban on the in-state sale of foie gras produced by force-feeding contrasts starkly with the PPIA’s conception of ‘ingredient requirements,'” Circuit Judge Jacqueline Nguyen wrote for the unanimous three-judge panel. “[The ban] does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane.”

Foie gras – fatty duck or goose liver – is prized for its rich flavor. But animal rights activists have long maintained the market for the delicacy drives poultry producers to cruelly force-feed the birds. During the feeding process, called gavage, large amounts of meal and air are pumped into a bird’s stomach through a tube inserted down its esophagus to enlarge its liver to 10 times its natural size.

Calling the practice “inhumane,” California outlawed the sale of force-fed poultry products in 2004, although it allowed foie gras made from birds that weren’t force-fed to be sold in the state.

Hot’s Restaurant Group in California, Hudson Valley Foie Gras in New York and the Association des Eleveurs de Canards et d’Oies du Quebec in Canada sued to overturn the ban the day after it went into effect in 2012, arguing it was preempted by PPIA because it imposes ingredient requirements over and above those the PPIA prescribes. Under PPIA, only the federal government can decide what ingredients go into poultry products.

California countered the ban doesn’t address ingredients, but instead regulated the market by limiting the sale of products produced by force-feeding birds.

U.S. District Judge Steven Wilson of the Central District of California sided with the plaintiffs, ruling in 2015 that the ban was expressly preempted by PPIA. Wilson permanently enjoined California from enforcing it.

But in a move that could see foie gras again disappear from the state’s restaurant menus, the Ninth Circuit held Friday that PPIA’s ingredient requirements pertain to the physical components of a poultry product, not to farming or feeding practices.

In sending the case back to Wilson, the panel also reasoned that the ban was not preempted even if it functioned as a total ban on foie gras.

“Congress made clear that the PPIA’s ‘ingredient requirements’ address the physical components of poultry products, not the way the animals are raised,” Nguyen wrote. “Although plaintiffs invite us to expand the definition of ‘ingredients’ to include animal husbandry practices, that is within Congress’s bailiwick, not ours.” 

The Coalition for Humane and Ethical Farming Standards, a group that includes the plaintiffs, called the opinion “flawed” on Friday. 

While vegan extremists may be celebrating, the court’s ruling defies the Constitution, and the reality is that the case is far from over,” the group said in a statement. “The challengers to the law have vowed to continue to fight to keep it legal.” 

But Wayne Pacelle, president and CEO of The Humane Society of the United States, said the panel made the right call. 

“The Ninth Circuit’s unanimous ruling issued today gives states the right to ban the production and sale of cruel and inhumane products, as California did with its foie gras law,” he said in a statement. “The court correctly held that federal laws are not relevant to, and do not preempt, policies prohibiting the cruel force-feeding of birds.”

California Justice Department Attorney Aimee Feinberg, who represented the state, could not be reached for comment Friday.

U.S. Circuit Judges John Owens and Harry Pregerson joined Nguyen in the opinion.

Michael Tenenbaum of Santa Monica, California, represented the plaintiffs.

 

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